Cuenca v. Barr

Decision Date13 November 2019
Docket NumberNo. 16-72378,16-72378
Citation956 F.3d 1079
Parties Alfonso Padilla CUENCA, Petitioner, v. William P. BARR, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit
ORDER

The opinion filed on November 13, 2019, and reported at 941 F.3d 1213 is hereby amended as follows:

At 941 F.3d at 1218, § 1229a(c)(7) "provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings," and § 1231(a)(5) "provides that an alien forfeits that right by reentering the country illegally. That is the clear import of the statute’s unambiguous text." Rodriguez-Saragosa , 904 F.3d at 354 (quoting Dada , 554 U.S. a– 4-5, 128 S.Ct. 2307 ) (emphasis in original).> is replaced with: Section 1229a(c)(7) "provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings." Dada , 554 U.S. at 4-5, 128 S.Ct. 2307. But, as the Fifth Circuit explained, § 1231(a)(5) "provides that an alien forfeits that right by reentering the country illegally. That is the clear import of the statute’s unambiguous text." Rodriguez-Saragosa , 904 F.3d at 354 (emphasis in original).>

A clean copy of the amended opinion is attached to this order.

With the foregoing amendment, the pending petition for panel rehearing is DENIED . (Dkt. No. 63.) The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. Fed. R. App. P. 35. Therefore, the petition for rehearing en banc is also DENIED . (Dkt. No. 63.) No further petitions for panel rehearing or rehearing en banc will be entertained.

RAYES, District Judge:

Generally, when an alien is ordered removed from the United States, he may move to reopen his removal proceeding within 90 days of entry of the final removal order based on new, material facts that could not have been discovered or presented at the original removal hearing. 8 U.S.C. § 1229a(c)(7). "The motion to reopen is an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings." Kucana v. Holder , 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (quoting Dada v. Mukasey , 554 U.S. 1, 18, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) ). If, however, an alien who has been removed pursuant to a removal order takes matters into his own hands and unlawfully reenters the United States, another provision of the Immigration and Nationality Act ("INA") empowers an immigration officer to reinstate the prior removal order, at which point it "is not subject to being reopened[.]" 8 U.S.C. § 1231(a)(5). The question presented in this case is whether § 1231(a)(5) permanently bars reopening under § 1229a(c)(7), or whether the bar applies only during the reinstatement process. We conclude that an alien whose removal order is reinstated pursuant to § 1231(a)(5) may not reopen the prior removal proceeding under § 1229a(c)(7). The bar is a consequence of having reentered unlawfully.

I. Background

Petitioner Alfonso Padilla Cuenca ("Padilla") is a native Mexican citizen who arrived in the United States on December 1, 1997, without being admitted or paroled. The Department of Homeland Security ("DHS") initiated removal proceedings against Padilla on August 25, 2008. Padilla appeared without counsel in the Immigration Court in Eloy, Arizona on September 15, 2008. There, an Immigration Judge ("IJ") advised Padilla of his right to counsel, but Padilla waived that right, admitted the allegations against him, conceded removability, and waived his right to apply for relief. By order of the IJ, Padilla was physically removed to Mexico on November 28, 2008, but he unlawfully reentered the United States the following month.

DHS apprehended Padilla in 2015 and proceeded to reinstate his prior removal order, a multistep process that first requires an immigration officer to obtain the prior removal order related to the alien, confirm that the alien under consideration and the alien previously removed are one and the same, and confirm that the alien unlawfully reentered the United States. If the immigration officer determines that an alien qualifies for reinstatement, the officer then must give the alien written notice of his determination and provide the alien with an opportunity to make a statement contesting it. If these requirements are met, the alien’s prior removal order is reinstated, and he may again be removed. 8 C.F.R. § 241.8(a)(c).

Here, DHS served Padilla with a Form I-871 Notice of Intent/Decision to Reinstate Prior Order ("Notice") on May 13, 2015. The Notice charged that Padilla is removable as an alien who unlawfully reentered the United States after previously being removed. Padilla signed and fingerprinted the Notice and indicated that he did not wish to make a statement contesting DHS’s determination. Consequently, DHS reinstated Padilla’s 2008 removal order.

DHS has not executed the reinstated removal order, however, because it determined that Padilla established a reasonable fear that he will be persecuted and tortured due to his mental illness if removed to Mexico. Padilla has a history of mental health problems, and formally was diagnosed with Schizoaffective Disorder, Depressive Type in October 2015. Under agency regulations, if an alien asserts a fear of returning to the country designated in his reinstated removal order, he is referred to an asylum officer who must then determine whether the alien has a reasonable fear of persecution or torture. 8 C.F.R. § 241.8(e). If the officer finds the alien’s fear to be reasonable, the case is referred to an IJ "for full consideration of the request for withholding of removal only." 8 C.F.R. § 208.31(e). DHS accordingly referred Padilla to the Immigration Court in San Francisco, California for withholding of removal proceedings, where an IJ determined that Padilla is mentally incompetent to represent himself and ordered appointment of counsel. This withholding of removal proceeding remains pending, and Padilla cannot be removed to Mexico until it concludes.

Aided by counsel, Padilla filed a motion to reopen his 2008 removal proceeding pursuant to § 1229a(c)(7) on November 2, 2015. Padilla argued that the 90-day deadline for filing a motion to reopen should be equitably tolled, the IJ should reopen his 2008 removal proceeding sua sponte ,1 reopening his 2008 removal proceeding is an appropriate safeguard to protect his due process rights, and he is prima facie eligible for asylum. At bottom, Padilla contends that his 2008 removal proceeding violated his due process rights because he was not competent to represent himself. Therefore, the IJ should not have accepted his admission of removability and instead should have appointed him counsel.2 Padilla seeks to reopen his 2008 removal proceeding in order to apply for asylum, which offers broader protection than withholding of removal.

The IJ denied Padilla’s motion, finding principally that § 1231(a)(5) divested the IJ of jurisdiction to reopen the 2008 removal proceeding because DHS reinstated Padilla’s removal order. Alternatively, the IJ addressed the merits of Padilla’s motion to reopen and, for reasons not relevant here, concluded that the motion was untimely and equitable tolling unavailable, Padilla was not prima facie eligible for asylum, and exceptional circumstances did not warrant reopening Padilla’s 2008 removal proceeding sua sponte .

Padilla appealed the IJ’s decision to the BIA. Along with re-arguing the merits of his motion to reopen, Padilla argued that the IJ erred in his jurisdictional analysis because § 1231(a)(5) bars reopening only during the reinstatement process, and Padilla now is in a separate withholding of removal proceeding. The BIA agreed with the IJ, however, that § 1231(a)(5) barred reopening Padilla’s 2008 removal proceeding because DHS reinstated Padilla’s removal order. It therefore denied as moot Padilla’s requests for equitable tolling and sua sponte reopening and dismissed his appeal.

Padilla timely petitioned this Court for review of the BIA’s decision. He again argues that § 1231(a)(5) bars reopening only during the reinstatement process itself, and that the BIA should not have dismissed his appeal because he now is in a separate withholding of removal proceeding.

II. Jurisdiction and Standard of Review

We have jurisdiction to review the BIA’s dismissal order pursuant to 8 U.S.C. § 1252. Although we review the BIA’s denial of a motion to reopen for an abuse of discretion, purely legal questions receive de novo review. See Cano-Merida v. INS , 311 F.3d 960, 964 (9th Cir. 2002). Whether § 1231(a)(5) permanently bars reopening under § 1229a(c)(7) is a question of law that we review de novo .

III. Analysis

"[T]he starting point for interpreting a statute is the language of the statute itself." Olympic Forest Coal. v. Coast Seafoods Co. , 884 F.3d 901, 905 (9th Cir. 2018) (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. , 484 U.S. 49, 56, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) ). Section 1231(a)(5) states:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to be reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

We read this language to unambiguously bar reopening a reinstated prior removal order. The Fifth and Seventh Circuits likewise have concluded that § 1231(a)(5) permanently bars reopening. See Rodriguez-Saragosa v. Sessions , 904 F.3d 349, 354 (5th Cir. 2018) (noting that the "unambiguous text" of § 1231(a)(5) "deprive[s] the BIA of authority to reopen" removal...

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