Sanchez-Gonzalez v. Garland

Decision Date16 July 2021
Docket NumberNo. 20-3938,20-3938
Citation4 F.4th 411
Parties Evelio SANCHEZ-GONZALEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: Karen Denise Bradley, BRADLEY & ASSOCIATES, Dayton, Ohio, for Petitioner. Margaret A. O'Donnell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: GILMAN, McKEAGUE, and BUSH, Circuit Judges.

McKEAGUE, Circuit Judge.

Evelio Sanchez Gonzalez1 petitions for review from the Board of Immigration Appeals's denial of his motion to reopen his 2008 removal order. Because the Department of Homeland Security reinstated the 2008 removal order twice upon Sanchez's illegal reentries into the country, the BIA determined that it lacked jurisdiction to reopen the order. The relevant section of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5), mandates that if "the prior order of removal is reinstated ... [the order] is not subject to being reopened." We cannot, therefore, give Sanchez the relief he seeks. See Cordova-Soto v. Holder , 732 F.3d 789, 795 (7th Cir. 2013) ; cf. Moreno-Martinez v. Barr , 932 F.3d 461, 465 (6th Cir. 2019). The petition for review is therefore DENIED .


Sanchez immigrated to the United States from Honduras in 1994 and became a lawful permanent resident when he married a U.S. citizen. In 1999, Sanchez pleaded guilty to sexual battery in the Greene County (Ohio) Court of Common Pleas. The Immigration and Naturalization Service served Sanchez with a Notice to Appear for removal proceedings because sexual battery is a crime involving moral turpitude, which merits removal under 8 U.S.C. § 1227(a)(2)(A)(i). The immigration judge ordered Sanchez removed. On appeal, the BIA noted that Sanchez implied "that he pled guilty to sexual battery perhaps in reliance on an assurance from his prior counsel that a conviction would not result in additional immigration consequences" but concluded that "the B[IA] has no authority to invalidate or look behind his criminal conviction."

Immigration authorities encountered Sanchez in the United States again in 2012 and 2018. Each time, they reinstated the original 2008 removal order and removed him.

But while reviewing Sanchez's case following his 2018 detention, his counsel realized that his original guilty plea was legally infirm. Ohio law requires that a judge advise defendants such as Sanchez that a guilty plea might result in "the consequence[ ] of deportation." O.R.C. § 2943.031(A). Because the state-court judge in Sanchez's case failed to give that advisement, the court vacated the sexual battery conviction. Sanchez instead entered a new plea for simple assault—which does not qualify as a crime involving moral turpitude.

Sanchez then moved the BIA to reopen his 2008 removal order because he no longer had a conviction for a crime involving moral turpitude. He also raised the argument that he would not have been removed but for the ineffective assistance of former counsels. The BIA denied the motion, determining that it lacked jurisdiction because the order of removal was reinstated after an illegal reentry under 8 U.S.C. § 1231(a)(5). The BIA concluded that § 1231(a)(5) "prohibits reopening of removal proceedings if those proceedings are subject to reinstatement," and cited our case law interpreting § 1231(a)(5), stating that an illegal reentrant's removal order "is reinstated from its original date and is not subject to being reopened or reviewed." Moreno-Martinez , 932 F.3d at 464 (quoting 8 U.S.C. § 1231(a)(5) ). Sanchez petitions for review of the BIA's denial of his motion reopen.


We review denials of motions to reopen under the abuse-of-discretion standard but review legal questions de novo. Dieng v. Barr , 947 F.3d 956, 960 (6th Cir. 2020).


This petition presents three questions. First, the government argues that we lack jurisdiction to review this petition. Second, the government urges that 8 U.S.C. § 1231(a)(5) precludes reopening of Sanchez's removal order. Third, Sanchez argues that a "gross miscarriage of justice" exception preserves jurisdiction and requires granting the petition in this case. We conclude that we have jurisdiction to interpret § 1231(a)(5), that it does preclude reopening, and that it does not contain a gross-miscarriage-of-justice exception.


We have jurisdiction to interpret 8 U.S.C. § 1231(a)(5). The BIA determined that it could not reopen Sanchez's removal proceedings because of the jurisdictional bar in § 1231(a)(5). That determination stemmed from § 1231(a)(5) ’s language that illegal reentrants’ removal orders are "not subject to being reopened or reviewed." But the BIA noted that the Courts of Appeals have a jurisdictional savings provision in 8 U.S.C. § 1252(a)(2)(D) that allows for judicial review. Section 1252(a)(2)(D) says that notwithstanding other sections outside of § 1252 that "limit[ ] or eliminate[ ] judicial review," Courts of Appeals have jurisdiction to review "constitutional claims or questions of law raised upon a petition for review." The BIA opined accordingly that we "may review constitutional claims related to an underlying removal order notwithstanding § 1231(a)(5) ’s bar to review."

We agree with the BIA to a point but disagree with its ultimate conclusion. We agree that we have jurisdiction under § 1252(a)(2)(D) to review the legal questions involved in Sanchez's motion to reopen, namely to review the BIA's reading of § 1231(a)(5). See Rodriguez-Saragosa v. Sessions , 904 F.3d 349, 354 n.4 (5th Cir. 2018) (noting that § 1252(a)(2)(D) saves Courts of Appeals's jurisdiction to interpret 8 U.S.C. § 1231(a)(5) ); Cordova-Soto , 732 F.3d at 793 (same); see also Moreno-Martinez , 932 F.3d at 463. "We may not, however, grant the relief that [Sanchez] seeks because we lack jurisdiction to reopen the underlying removal order." Moreno-Martinez , 932 F.3d at 463 ; accord Rodriguez-Saragosa , 904 F.3d at 354 n.4 ("[Petitioner] has not pointed to any similar exception that might apply to § 1231(a)(5) ’s directives to the BIA.").

As Sanchez concedes, if he had directly petitioned for review of the reinstatement of his removal order, we would not have had jurisdiction to review the underlying removal order. Petitions for review of final orders of removal must be filed within 30 days of the order—that requirement is jurisdictional. 8 U.S.C. § 1252(b)(1) ; see Moreno-Martinez , 932 F.3d at 464. And when a final order is reinstated, the prior removal order is reinstated from the original date rather than from the date of reinstatement. Moreno-Martinez , 932 F.3d at 464–65. Because that 30-day limit is within § 1252 itself, it is unaffected by § 1252(a)(2)(D) ’s savings clause. See Ovalle-Ruiz v. Holder , 591 F. App'x 397, 400 (6th Cir. 2014) (reading the savings clause to apply only outside of § 1252 ). "Thus, any challenge (collateral or otherwise) filed 30 days after the removal order was filed is untimely and we have no jurisdictional basis to entertain the challenge." Moreno-Martinez , 932 F.3d at 465. The government argues that this case ends there because the petition is untimely with regard to the underlying removal order.

But here, Sanchez filed a motion to reopen rather than appealing the second reinstatement of his removal order. See Kucana v. Holder , 558 U.S. 233, 250, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (federal courts of appeals generally have jurisdiction over denials of motions to reopen). The BIA denied the motion to reopen because of 8 U.S.C. § 1231(a)(5) ’s jurisdictional bar, and we have jurisdiction to review the BIA's statutory interpretation because § 1252(a)(2)(D) ’s savings clause applies to § 1231(a)(5). Cordova-Soto , 732 F.3d at 793 ; see also Rodriguez-Saragosa , 904 F.3d at 354 n.4 ; cf. Guerrero-Lasprilla v. Barr , ––– U.S. ––––, 140 S. Ct. 1062, 1069, 206 L.Ed.2d 271 (2020) (discussing the "strong presumption" in favor of judicial review of administrative action (quoting McNary v. Haitian Refugee Ctr., Inc. , 498 U.S. 479, 496, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) ).

That doesn't mean we have jurisdiction to review the 2008 removal order itself—that petition would be time-barred. See Moreno-Martinez , 932 F.3d at 465. A petitioner cannot use a motion to reopen as a de facto petition for review of a removal order because § 1252(a)(5) maintains that the "exclusive means for judicial review" of removal orders are petitions for review. But we can review legal questions intrinsic to the BIA's denial of Sanchez's motion to reopen. Construing Sanchez's appeal as "rais[ing] questions of law about the meaning of § 1231(a)(5)," we proceed. Cordova-Soto , 732 F.3d at 793.


The BIA correctly determined that § 1231(a)(5) precludes reopening Sanchez's removal order. A petitioner generally has a right to make one motion to reopen removal proceedings (subject to several limitations). See 8 U.S.C. § 1229a(c)(7). But "[i]f ... an alien has reentered the United States illegally after having been removed ..., the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed." 8 U.S.C. § 1231(a)(5). Sanchez illegally reentered the United States after removal twice, so Sanchez's removal order cannot be reopened. See Martinez v. Larose , 968 F.3d 555, 563 (6th Cir. 2020) ("He cannot challenge the prior removal order by seeking to have it reopened or reviewed."); Rodriguez-Saragosa , 904 F.3d at 351.

This plain reading reflects congressional intent to take a "harder line" with illegal reentrants, denying them "any benefits from [their] latest violation of U.S. law." Cuenca v. Barr , 956 F.3d 1079, 1085–86 (9th Cir. 2020) (cleaned up). Under 8 U.S.C. § 1231(a)(5), "an alien forfeits th[e] right [to move to reopen] by reentering the country illegally." Rodriguez-Saragosa , 904 F.3d at 354. Congress did not include an exception for constitutional or legal challenges to the underlying order of removal. See Cuenca , 956 F.3d...

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