Zapata-Chacon v. Garland

• Docket Number: 20-9645
• Decision Date: 25 October 2022
• Citation: 51 F.4th 1191
• Parties: Javier ZAPATA-CHACON, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. National Immigration Litigation Alliance, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

51 F.4th 1191

Javier ZAPATA-CHACON, Petitioner,

v. Merrick B. GARLAND, United States Attorney General, Respondent.National Immigration Litigation Alliance, Amicus Curiae.

No. 20-9645

United States Court of Appeals, Tenth Circuit.

FILED October 25, 2022

Hans Meyer, Meyer Law Office P.C. (Andrew Bramante with him on the briefs), Denver, Colorado, for Petitioner.

Timothy G. Hayes, Office of Immigration Litigation (Brian Boynton, Acting Assistant Attorney General, Civil Division; and Cindy S. Ferrier, Office of Immigration Litigation, with him on the brief), Washington, D.C., for Respondent.

Kristin Macleod-Ball and Trina Realmuto, National Immigration Litigation Alliance, Brookline, Massachusetts, filed an amicus brief on behalf of the National Immigration Litigation Alliance.

Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

In 1999, Javier Zapata-Chacon, then a conditional permanent resident, admitted his removability based on a Colorado conviction for possession of marihuana. An Immigration Judge ("IJ") ordered Mr. Zapata-Chacon removed and a final administrative order issued and was executed that same year. Since his removal, Mr. Zapata-Chacon has illegally reentered the United States on three occasions. In 2020, Mr. Zapata-Chacon filed a motion to reconsider the 1999 removal order, arguing his possession of marihuana conviction was not a categorical match to a federal "controlled substance offense" because Colorado's definition of marihuana used broader language than the federal definition. An IJ denied the motion. The Board of Immigration Appeals ("BIA") adopted and affirmed the IJ's denial, and Mr. Zapata-Chacon filed this petition for review.

With the petition pending before this court, the Government, through a letter pursuant to Federal Rule of Appellate Procedure 28(j), contends for the first time that the IJ and the BIA lack authority to reopen or review Mr. Zapata-Chacon's proceeding based on him having illegally reentered the United States. We conclude 8 U.S.C. § 1231(a)(5) clearly strips the BIA of authority to review a prior order of removal or to grant any relief provided by the Immigration and Nationality Chapter of Title 8 once a removed alien illegally reenters the United States. Accordingly, we deny Mr. Zapata-Chacon's petition for review.

I. BACKGROUND

Mr. Zapata-Chacon was born in Mexico. It appears from the record that he entered the United States by 1994. In May 1996, Mr. Zapata-Chacon married Genoveva Perez, a United States citizen. Based on his marriage, Mr. Zapata-Chacon obtained conditional lawful permanent resident status in the United States.

In 1998, a Denver police officer observed Mr. Zapata-Chacon in possession of a ziplock bag with "suspected cocaine powder" from which Mr. Zapata-Chacon "snort[ed]" some of the powder before stuffing the ziplock bag into "the fly portion of his pants." A.R. at 175. Officers arrested Mr. Zapata-Chacon. Mr. Zapata-Chacon pleaded guilty to one class 5 felony of possession of more than eight ounces of marihuana, in violation of Section 18-18-406(4)(b) of the Colorado Revised Statutes. Mr. Zapata-Chacon received a two-year sentence for his offense, which the state court suspended for the purpose of delivering him to Immigration and Nationalization Services ("INS") for deportation.

On the same day as his criminal sentencing, INS issued Mr. Zapata-Chacon a Notice to Appear for a deportation hearing, identifying his Colorado marihuana conviction as an offense "relating to a controlled substance." Id. at 260. At the hearing, Mr. Zapata-Chacon admitted he sustained a Colorado conviction for possession of marihuana, and an IJ ordered him removed. Authorities removed Mr. Zapata-Chacon to Mexico in June 1999.

In the years following his removal, Mr. Zapata-Chacon became well-acquainted with the United States-Mexico border and immigration officials. Sometime between his 1999 removal and August 2002,¹ Mr. Zapata-Chacon illegally reentered the United States for the first time, resulting in his October 2002 removal to Mexico. Mr. Zapata-Chacon again illegally reentered the United States by March 2005, when immigration authorities detained him. This time, Mr. Zapata-Chacon was charged with and pleaded guilty to one criminal count of illegal reentry, in violation of 8 U.S.C. § 1326(a)(1), (2). INS reinstated Mr. Zapata-Chacon's 1999 removal order and removed him in July 2005. In late 2005 or early 2006, Mr. Zapata-Chacon illegally reentered the United States for a third time, this time seemingly avoiding detection for approximately fifteen years until 2020, when he filed the motion underlying the present petition for review.

In mid-2020, Mr. Zapata-Chacon filed a Motion to Reconsider and Terminate in the immigration court. Through the motion, Mr. Zapata-Chacon argued the Colorado statute controlling his marihuana conviction used broader language than the federal statute criminalizing marihuana possession because Colorado's definition of marihuana did not except mature stalks of the cannabis sativa L plant like the federal definition of marihuana did. Accordingly, in Mr. Zapata-Chacon's view, a conviction for possession of marihuana in Colorado does not relate to a federal "controlled substance offense." To overcome the time bar on motions to reconsider, Mr. Zapata-Chacon asked for equitable tolling or, alternatively, for the IJ to sua sponte reconsider his case.

The IJ denied Mr. Zapata-Chacon's motion to reconsider. First, the IJ concluded the motion was untimely. The IJ then concluded the immigration court had not committed error in 1999, when it found Mr. Zapata-Chacon deportable based on his Colorado marihuana conviction. The IJ also concluded Mr. Zapata-Chacon was not entitled to equitable tolling of the statutory period for filing a motion to reconsider because he "failed to demonstrate due diligence throughout the entire period he seeks to have equitably tolled."² Id. at 67. Finally, the IJ declined to exercise sua sponte authority to reconsider Mr. Zapata-Chacon's case.

Mr. Zapata-Chacon filed an appeal with the BIA. The BIA "adopt[ed] and affirm[ed] the decision of the Immigration Judge" and dismissed the appeal. Id. at 2. At no point did the IJ or the BIA rely upon 8 U.S.C. § 1231(a)(5) and one or more of Mr. Zapata-Chacon's illegal reentries into the United States as an absolute bar to relief.

Mr. Zapata-Chacon seeks review of the BIA's decision in this court. In a Federal Rule of Appellate Procedure 28(j) letter, the Government argues the BIA lacks authority to reopen or review Mr. Zapata-Chacon's case because he illegally reentered the United States. In response to this letter, Mr. Zapata-Chacon contends (1) a Rule 28(j) letter is not a proper pleading for the Government to raise a new argument if the argument was previously available; (2) the BIA did not rely upon this reasoning so the panel should not adopt it as a ground for denying review; (3) the provision barring reopening and review does not apply because Mr. Zapata-Chacon filed a motion to reconsider, not a motion to reopen; and (4) the provision barring reopening and review does not apply because the Government has not reinstated his order of removal.

II. DISCUSSION

A. Standard of Review

"We review BIA decisions on motions to reopen and motions to reconsider for an abuse of discretion."

Berdiev v. Garland , 13 F.4th 1125, 1130 (10th Cir. 2021). "The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements." Maatougui v. Holder , 738 F.3d 1230, 1239 (10th Cir. 2013) (quotation marks omitted). Another way the BIA may abuse its discretion is if it "mak[es] a factual finding that is not supported by substantial record evidence." Berdiev , 13 F.4th at 1131 (quotation marks omitted). The BIA also "abuses its discretion when it makes an error of law." Banuelos v. Barr , 953 F.3d 1176, 1179 (10th Cir. 2020).

When it comes to denying a petition on alternative grounds, we generally are "not at liberty to search the law and the record for reasoning to support the BIA's decision because a court may not uphold an agency action on grounds not relied on by the agency." Mickeviciute v. INS , 327 F.3d 1159, 1162–63 (10th Cir. 2003) (internal quotation marks omitted). But this limitation on the grounds upon which we may rely to deny a petition for review is not applicable where, on remand, governing law would " ‘require [ ]’ [the agency] to reach a ‘necessary result.’ " Gutierrez-Zavala v. Garland , 32 F.4th 806, 810 (9th Cir. 2022) (quoting Morgan Stanley Cap. Grp. Inc. v. Pub. Util. Dist. No. 1 , 554 U.S. 527, 544–45, 128 S.Ct. 2733, 171 L.Ed.2d 607 (2008) ). Put another way, we can avoid a remand if it would be futile. See Ricketts v. Att'y Gen. , 955 F.3d 348, 351–52 (3d Cir. 2020) (collecting cases and applying remand futility doctrine when denying petition for review); see also Escamilla v. Holder , 459 F. App'x 776, 787–88 (10th Cir. 2012) (unpublished) (commenting remand "would be a mere formality" because " ‘[r]emand to the BIA is futile whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors.’ " (ellipsis omitted) (quoting Lin v. U.S. Dep't of Just. , 453 F.3d 99, 107 (2d Cir. 2006) )). Specifically, in cases where the BIA did not rely upon § 1231(a)(5) but the alien illegally reentered, affirmance based on § 1231(a)(5) is appropriate because

[t]he necessary and certain result of § 1231(a)(5) ’s bar ... is the denial of [the alien's] motion ... for the BIA's lack of jurisdiction ... [i]t follows that where we review the denial of a motion ... that the BIA did not have jurisdiction to consider, [an appellate court] need not remand for the agency to reach that same conclusion because to do so "would be an idle and useless formality."

Gutierrez-Zavala , 32 F.4th at 810 (...