Tarango-Delgado v. Garland

Decision Date02 December 2021
Docket NumberNos. 19-9615 & 20-9619,s. 19-9615 & 20-9619
Parties Edgar TARANGO-DELGADO, a/k/a Armondo De Santiago, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

Stephen Petrany of Jones Day, Washington D.C. (Brittney Lane Kubisch of Jones Day, Los Angeles, California; Ryan Proctor of Jones Day, Washington D.C.; Nicole C. Henning of Jones Day, Chicago, Illinois; Charles Roth of National Immigrant Justice Center, Chicago, Illinois, on the briefs) for Petitioner-Appellant.

Jeffery R. Leist, Senior Litigation Counsel, Office of Immigration Litigation (Brian Boynton, Acting Assistant Attorney, General Civil Division; Anthony C. Payne, Assistant Director, Office of Immigration Litigation, Department of Justice with him on the brief), Washington D.C., for Respondent-Appellee.

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.

PHILLIPS, Circuit Judge.

Petitioner Edgar Tarango-Delgado appeals the Board of Immigration Appeals("BIA") denial of his two motions to reopen his removal proceedings. Because 8 U.S.C. § 1231(a)(5) bars Tarango-Delgado from such relief, we affirm.

I. Factual Background

Tarango-Delgado, a citizen of Mexico, came to the United States in 1977, when he was seven months old. He became a lawful permanent resident at age ten. And for almost four decades, he lived in this country with his parents, siblings, wife, and children—all of whom are now U.S. citizens.

In 2015, state police arrested Tarango-Delgado and charged him with aggravated animal cruelty, a felony. He pleaded guilty to that charge. But, before entering his plea, his counsel failed to advise him that pleading guilty would have deportation consequences under 8 U.S.C. § 1227(a)(2)(A)(ii). Those consequences arose because aggravated animal cruelty is a crime of moral turpitude.1 A few months after he pleaded guilty, the government commenced removal proceedings against him.

II. Procedural Background

To challenge his removal, Tarango-Delgado took two actions. First, he moved for post-conviction relief in Colorado state court, arguing that his counsel had provided ineffective assistance under the Sixth Amendment by not advising him of the immigration consequences of a guilty plea and conviction. FAR at 216–25 (relying on Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ). Second, he applied for cancellation of removal under 8 U.S.C. § 1229b(a) before an immigration judge ("IJ").2

In October 2017, with the ineffective-assistance-of-counsel motion still pending, an IJ denied Tarango-Delgado's motion for cancellation of removal. Tarango-Delgado didn't appeal the IJ's decision, and he was removed to Mexico in November 2017.

Almost a year after his removal, a Colorado state court ruled on Tarango-Delgado's ineffective-assistance-of-counsel motion. Unsurprisingly, that court concluded that Tarango-Delgado had not "knowingly and voluntarily" pleaded guilty to the aggravated-animal-cruelty charge, because his attorney had not advised him of the immigration consequences of a guilty plea. So it vacated his conviction and reinstated the original aggravated-animal-cruelty charge.

A. First Motion to Reopen

In January 2019, with his aggravated-animal-cruelty conviction vacated and the charge reinstated, Tarango-Delgado filed his first motion to reopen his immigration proceedings before an IJ. He argued that his deadline to move to reopen had been equitably tolled while his Colorado ineffective-assistance-of-counsel motion was pending. Tarango-Delgado also argued for the IJ to sua sponte reopen his case under 8 C.F.R. § 1003.23(b), contending that the vacatur of his animal-cruelty conviction should qualify as an exceptional circumstance.

The IJ denied Tarango-Delgado's motion to reopen. It ruled that Tarango-Delgado was not entitled to equitable tolling, because he had not exercised diligence in moving to reopen his case. The IJ also declined to reopen the case sua sponte because, despite the state court's vacating the conviction, it reinstated the original animal-cruelty charge, enabling the state to recommence its prosecution.

Tarango-Delgado appealed the IJ's decision, but the BIA dismissed. He challenges the BIA's decision.

B. Tarango-Delgado's Unlawful Reentry

In late February or early March 2019, a few days after the IJ denied Tarango-Delgado's first motion to reopen, he reentered this country without authorization.3 And a few weeks later, after the Department of Homeland Security ("DHS") learned about the illegal reentry, it reinstated Tarango-Delgado's prior removal order.

About two weeks after DHS reinstated his removal order, Tarango-Delgado applied for withholding of removal under the Convention Against Torture ("CAT").4 An asylum officer found that Tarango-Delgado credibly feared returning to Mexico and referred his petition to an IJ. But the IJ denied his petition for CAT relief.5 The BIA affirmed. Tarango-Delgado does not challenge the BIA's decision.

C. Second Motion to Reopen

In December 2019, Tarango-Delgado pleaded guilty to a misdemeanor animal-cruelty charge, which by definition would no longer qualify as a crime of moral turpitude. Having eliminated his second qualifying conviction for a crime of moral turpitude (the earlier burglary conviction being his first), Tarango-Delgado filed a second motion to reopen his immigration proceedings.

But the government also raised a new argument: that 8 U.S.C. § 1231(a)(5) barred consideration of Tarango-Delgado's motion because he had illegally reentered the United States after being removed. The BIA sided with the government. Tarango-Delgado appeals the BIA's affirmance as well.


Tarango-Delgado appeals the BIA's denial of his two motions to reopen.6 Because we conclude that 8 U.S.C. § 1231(a)(5) bars the reopening of his removal proceedings, we affirm the BIA's denials.

I. Jurisdiction

We first resolve whether we have jurisdiction over Tarango-Delgado's appeal. Under 8 U.S.C. § 1252(b)(1), we have jurisdiction to review removal orders only if the petition for review is filed within "30 days after the date of the final order of removal." Since Tarango-Delgado's final order of removal was filed in October 2017, our authority to review the removal order itself expired in November 2017.

But Tarango-Delgado does not challenge the removal order, or even its reinstatement. Rather, he appeals the BIA's denial of his two motions to reopen. And since he appealed those decisions within thirty days of their denial, he cleared § 1252(b)(1) ’s procedural hurdle. See Bhattarai v. Holder , 408 F. App'x 212, 215 (10th Cir. 2011).

Next, we turn to 8 U.S.C. § 1252(a)(2)(D) —the "savings clause." Sanchez-Gonzalez v. Garland , 4 F.4th 411, 414 (6th Cir. 2021). That statute states that "[no] other provision of this chapter ... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review." 8 U.S.C. § 1252(a)(2)(D). " Section 1231 is in the same chapter as § 1252." Ramirez-Molina v. Ziglar , 436 F.3d 508, 513 (5th Cir. 2006). Thus, § 1252(a)(2)(D) applies to § 1231(a)(5). See id. Said another way, we have jurisdiction over Tarango-Delgado's motions to reopen so long as they raise "constitutional claims or questions of law." See Sanchez-Gonzalez , 4 F.4th at 413.

The BIA denied Tarango-Delgado's second motion to reopen after concluding that § 1231(a)(5) barred review or reopening of the removal order. Whether the BIA correctly interpreted the statute is a question of law, so we have jurisdiction to review that question. Id. at 413–14.

II. Standard of Review

We review de novo constitutional and legal questions. Lorenzo v. Mukasey , 508 F.3d 1278, 1282 (10th Cir. 2007). But we defer to DHS's reasonable interpretations of the statutes it administers. See Reyes-Vargas v. Barr , 958 F.3d 1295, 1300–02 (10th Cir. 2020).

III. Section 1231(a)(5) Forecloses Tarango-Delgado's Motions to Reopen

As with all questions of statutory interpretation, we begin with the text:

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 being 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.

8 U.S.C. § 1231(a)(5).

Based on the statute's text, once Tarango-Delgado illegally reentered the country, the BIA lacked authority to reopen Tarango-Delgado's removal order. Several circuits agree with this interpretation. See Sanchez-Gonzalez , 4 F.4th at 415 (6th Cir.) ; Gutierrez-Gutierrez v. Garland , 991 F.3d 990, 994 (8th Cir. 2021) ; Cuenca v. Barr , 956 F.3d 1079, 1084 (9th Cir. 2020) ; Rodriguez-Saragosa v. Sessions , 904 F.3d 349, 354 (5th Cir. 2018) ; Cordova-Soto v. Holder , 732 F.3d 789, 794 (7th Cir. 2013).

Our reading also reflects Congress's decision to "toe[ ] a harder line" with illegal reentrants. Fernandez-Vargas v. Gonzales , 548 U.S. 30, 34, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). Before 1996, "only a limited class of illegal reentrants" were subject to reinstatement of their prior removal order. Id. And even then, many still "could seek some varieties of discretionary relief." Id. But in 1996, Congress amended the statute so that reinstatement applied "to all illegal reentrants, ‘expanded the types of orders that can be reinstated and limited the relief available to aliens whose orders are reinstated.’ " Cuenca , 956 F.3d at 1084 (quoting Padilla v. Ashcroft , 334 F.3d 921, 924 (9th Cir. 2003) ). Congress thus sought to deny illegal reentrants "any benefits from [their] latest violation of U.S. law." Morales-Izquierdo v. Gonzales , 486 F.3d 484, 498 (9th Cir. 2007).

In short, § 1231(a)(5) means what it...

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4 cases
  • Zapata-Chacon v. Garland
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 25, 2022
    ...that once the alien "illegally reentered the country, the BIA lacked authority to reopen [his] removal order." Tarango-Delgado v. Garland , 19 F.4th 1233, 1238 (10th Cir. 2021).Although the analysis is slightly different, the same rule applies to Mr. Zapata-Chacon's motion to reconsider. Th......
  • Sarmiento v. Garland
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 17, 2022
    ...to reinstated removal orders following unlawful reentry are barred from reopening their orders of removal. See Tarango-Delgado v. Garland, 19 F.4th 1233, 1238–39 (10th Cir. 2021) ; Sanchez-Gonzalez v. Garland, 4 F.4th 411, 414-15 (6th Cir. 2021) ; Gutierrez-Gutierrez v. Garland, 991 F.3d 99......
  • Zapata-Chacon v. Garland
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 25, 2022
    ...Tarango-Delgado v. Garland, 19 F.4th 1233 (10th Cir. 2021). Technically speaking, where the Government filed its brief in June 2021 and Tarango-Delgado issued in December Tarango-Delgado is a "new" authority. However, an argument under the plain text of 8 U.S.C. § 1231(a)(5) was available t......
  • Alcaraz-Enriquez v. Garland
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 14, 2021

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