Gutierrez-Zavala v. Garland

• Decision Date: 26 April 2022
• Docket Number: 20-73398
• Citation: 32 F.4th 806
• Parties: Jose Manuel GUTIERREZ-ZAVALA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

32 F.4th 806

Jose Manuel GUTIERREZ-ZAVALA, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-73398

United States Court of Appeals, Ninth Circuit.

Submitted February 14, 2022^* Pasadena, California

Filed April 26, 2022

Douglas Jalaie, Los Angeles, California, for Petitioner.

Justin R. Markel and Paul Fiorino, Senior Litigation Counsel; Brian Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Daniel A. Bress and Patrick J. Bumatay, Circuit Judges, and Sharon L. Gleason,^*** District Judge.

BRESS, Circuit Judge:

Jose Gutierrez-Zavala, a native and citizen of Mexico, seeks review of a Board of Immigration Appeals (BIA) decision denying his untimely motion to reopen his removal proceedings. Although the BIA denied relief on the merits, the BIA lacked jurisdiction to consider Gutierrez-Zavala's motion to reopen because he was subject to a reinstated prior removal order. See 8 U.S.C. § 1231(a)(5) ; Cuenca v. Barr , 956 F.3d 1079, 1084 (9th Cir. 2020). We hold here that we can deny Gutierrez-Zavala's petition for review based on the BIA's lack of jurisdiction, even though the BIA did not rule on that basis. We therefore deny the petition for review.

On December 29, 1988, Gutierrez-Zavala was admitted to the United States as a lawful permanent resident. In January 1998, he was convicted of burglary in the second degree in California state court, Cal. Penal Code §§ 459, 460(b), and sentenced to 16 months in prison. In August 1998, the former Immigration and Naturalization Service (INS) served Gutierrez-Zavala with a Notice to Appear, charging him with removability as an alien who, after admission, had been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Gutierrez-Zavala admitted the factual allegations against him, and an Immigration Judge (IJ) ordered Gutierrez-Zavala removed to Mexico. After his lawyer failed to file a brief in support of his appeal to the BIA, Gutierrez-Zavala was removed to Mexico in May 2003.

Later that year, Gutierrez-Zavala illegally reentered the United States. In September 2019, the Department of Homeland Security (DHS) detained Gutierrez-Zavala and reinstated his prior removal order. See 8 U.S.C. § 1231(a)(5) (providing for the reinstatement of prior removal orders for non-citizens who reenter the United States illegally); Lopez v. Garland , 17 F.4th 1232, 1234 (9th Cir. 2021) (describing requirements for reinstatement of a prior removal order).

In January 2020, nearly 20 years after Gutierrez-Zavala was ordered removed to Mexico, he filed an untimely motion to reopen and terminate his removal proceedings. See 8 U.S.C. § 1229a(c)(7)(A), (C) ; 8 C.F.R § 1003.2(c)(2). Subject to certain exceptions, a motion to reopen must be filed within 90 days of the removal order. 8 U.S.C. § 1229a(c)(7)(A), (C) ; 8 C.F.R § 1003.2(c)(2). Gutierrez-Zavala acknowledged that his motion to reopen was untimely but argued that the deadline should be tolled and his motion deemed timely. Specifically, Gutierrez-Zavala argued for tolling because his prior counsel provided ineffective assistance by failing to file a brief in support of his appeal to the BIA challenging his removal order. Gutierrez-Zavala also sought tolling on the ground that he was allegedly no longer removable based on his burglary conviction, relying on the Supreme Court's intervening decision in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Gutierrez-Zavala further maintained that the BIA should reopen his removal proceedings sua sponte.

In its decision on the motion to reopen, the BIA took administrative notice of the fact that Gutierrez-Zavala was subject to a reinstated order of removal. But citing our decision in Morales-Izquierdo v. Gonzales , 486 F.3d 484, 497–98 (9th Cir. 2007), the BIA concluded that it had jurisdiction to consider Gutierrez-Zavala's motion to reopen notwithstanding the reinstatement of his removal order. The BIA therefore proceeded to the merits and denied Gutierrez-Zavala's motion to reopen after concluding that he had not exercised due diligence in pursuing relief and that sua sponte reopening was not justified. Gutierrez-Zavala then petitioned for review in our court.

We have jurisdiction under 8 U.S.C. § 1252 and review the BIA's denial of a motion to reopen for abuse of discretion. Agonafer v. Sessions , 859 F.3d 1198, 1203 (9th Cir. 2017). The government requests that we take judicial notice of the Form I-871 reinstating Gutierrez-Zavala's removal order. We may take judicial notice of out-of-record evidence where, among other situations, "the Board considers the evidence." Fisher v. INS , 79 F.3d 955, 964 (9th Cir. 1996) (en banc). Here the BIA's decision expressly noted the fact of the reinstatement order. We therefore grant the government's motion for judicial notice.¹

Although the BIA recognized that Gutierrez-Zavala was subject to a reinstated removal order, it denied his motion to reopen on the merits. We have held, however, that the BIA lacks jurisdiction to "reopen[ ] a removal order that has been reinstated following an alien's unlawful reentry into the United States." Cuenca , 956 F.3d at 1088. Under 8 U.S.C. § 1231(a)(5), "[i]f the Attorney General finds that an alien has reentered the United States illegally after having been removed ... [and] the prior order of removal is reinstated from its original date," that prior order "is not subject to being reopened or reviewed. " 8 U.S.C. § 1231(a)(5) (emphasis added). That provision, we held, "unambiguously bar[s] reopening a reinstated prior removal order." Cuenca , 956 F.3d at 1084. Although 8 U.S.C. § 1229a(c)(7) generally provides non-citizens the right to file motions to reopen, the non-citizen "forfeits that right by reentering the country illegally. That is the clear import of the statute's unambiguous text." Id. at 1085 (quoting Rodriguez-Saragosa v. Sessions , 904 F.3d 349, 354 (5th Cir. 2018) ).

The BIA did not discuss our decision in Cuenca , in which we issued an amended opinion only several months before the BIA ruled in this case. Instead, in determining that it had jurisdiction to consider Gutierrez-Zavala's motion to reopen, the BIA cited our earlier decision in Morales-Izquierdo . But in Cuenca , we explained that Morales-Izquierdo did not govern the question of whether a petitioner subject to a reinstated removal order could seek to reopen his removal proceedings under § 1229a(c)(7). See Cuenca , 956 F.3d at 1085–88 (explaining, inter alia , that Morales-Izquierdo "came to this Court as a petition for review of a reinstatement order itself, not from the denial of a motion to reopen," and that the petitioner there was subject to special rules governing in absentia orders). Although it is not clear if the BIA in this case was aware of Cuenca , that decision conclusively explains why the BIA's reliance on Morales-Izquierdo was in error. Thus, under Cuenca , § 1231(a)(5) "institute[es] a permanent jurisdictional bar" on the BIA's ability to entertain a motion to reopen a reinstated removal order. 956 F.3d at 1084.

The BIA, as we have noted, did not base its denial of Gutierrez-Zavala's motion to reopen on § 1231(a)(5)'s jurisdictional bar. And we recognize that, under the venerable Chenery doctrine, our review is typically "limited to ‘[t]he grounds upon which ... the record discloses that [the agency's] action was based.’ " Hernandez-Cruz v. Holder , 651 F.3d 1094, 1109 (9th Cir. 2011) (alterations in original) (quoting SEC v. Chenery Corp. , 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ). Under Chenery , "[w]e will not uphold a discretionary agency decision where the agency has offered a justification in court different from what it provided in its opinion." Morgan Stanley Cap. Grp. Inc. v. Pub. Util. Dist. No. 1 , 554 U.S. 527, 544, 128 S.Ct. 2733, 171 L.Ed.2d 607 (2008) (citing Chenery , 318 U.S. at 94–95, 63 S.Ct. 454 ). Instead, "[g]enerally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands." INS v. Orlando Ventura , 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

But because the BIA was required to deny Gutierrez-Zavala's motion to reopen for lack of jurisdiction, these same considerations do not apply. As the Supreme Court has explained, "[t]he Chenery doctrine has no application" where the agency "was required " to reach a "necessary result." Morgan Stanley , 554 U.S. at 544–45, 128 S.Ct. 2733. Put another way, there is an " ‘exception’ to Chenery ... based upon subjective certainty ... with respect to the outcome of the agency decision upon remand." Arnold v. Morton , 529 F.2d 1101, 1105 (9th Cir. 1976).

The necessary and certain result of § 1231(a)(5)'s bar and our decision in Cuenca is the denial of Gutierrez-Zavala's motion to reopen for the BIA's lack of jurisdiction. See Cuenca , 956 F.3d at 1084, 1088. It follows that where we review the denial of a motion to reopen that the BIA did not have jurisdiction to consider, we need not remand for the agency to reach that same conclusion because to do so "would be an idle and useless formality." NLRB v. Wyman-Gordon Co. , 394 U.S. 759, 766 n.6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (plurality opinion). As the Supreme Court has long instructed, " Chenery does not require that we convert judicial review of agency action into a ping-pong game." Id.

Denying Gutierrez-Zavala's petition on this ground is consistent with our precedents, including in the immigration context. In Safaryan v. Barr , 975 F.3d 976, 979 (9th Cir. 2020), for example, we considered whether a published BIA decision holding that a violation of California Penal Code § 245(a)(1) is a crime involving moral turpitude was entitled to Chevron deference. The precedential decision at issue, Matter of Wu , 27 I. & N. Dec. 8 (B.I.A. 2017), was...