Alejandro Estrada-Mendoza v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 27, 2023
• Docket: 19-72878
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALEJANDRO ESTRADA-MENDOZA, No. 19-72878

Petitioner, Agency No. A075-204-333

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 11, 2022** Submission Withdrawn February 11, 2022 Resubmitted August 2, 2023 Phoenix, Arizona

Before: MURGUIA, Chief Judge, GRABER, Circuit Judge, and L. BURNS,*** District Judge.

Petitioner Alejandro Estrada-Mendoza is a native and citizen of Mexico who

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Larry A. Burns, United States District Judge for the Southern District of California, sitting by designation. first entered the United States unlawfully in 1989. In 1997, he was deported after

an immigration judge (“IJ”) found him removable, and Petitioner waived his right

to appeal. Just a few weeks later, he reentered without permission or inspection.

In July 1999, Petitioner was apprehended, and his 1997 removal order was

reinstated. In November 1999, he was convicted of illegal reentry in violation of 8

U.S.C. § 1326. After serving a few months in prison, Petitioner was removed to

Mexico again pursuant to the reinstated 1997 removal order. Once again, he

reentered without valid immigration documents allowing him to be present in the

United States. In 2018, following Petitioner’s arrest for driving under the

influence, United States Immigration and Customs Enforcement (“ICE”) took him

into custody. The Department of Homeland Security reinstated the previous

removal order pursuant to 8 U.S.C. § 1231(a)(5).

Petitioner did not appeal, but instead filed two separate motions in 2019.

First, he moved to reopen his 1997 removal proceedings, alleging that ineffective

assistance of counsel had foreclosed available avenues of voluntary departure and

cancellation of removal. An IJ denied the motion to reopen, ruling that he lacked

jurisdiction because of the bar contained in § 1231(a)(5), and the Board of

Immigration Appeals (“BIA”) agreed. Second, Petitioner moved to reopen and

rescind the 2018 reinstatement of the 1997 removal order. ICE denied this request,

explaining that “the totality of the circumstances do[es] not support a favorable

2 exercise of discretionary authority[.]” Petitioner timely sought review of both the

BIA’s and ICE’s decisions in this court.

1. Our review of the BIA’s denial of a motion to reopen “is limited to

determining whether the BIA erred in concluding that the IJ lacked jurisdiction.”

Bravo-Bravo v. Garland, 54 F.4th 634, 640 (9th Cir. 2022). Reviewing this legal

question de novo, Miller v. Sessions, 889 F.3d 998, 1001 (9th Cir. 2018), we agree

with the BIA and deny this part of the petition for review. Petitioner argues that

the BIA had authority to review his motion to reopen because he suffered a gross

miscarriage of justice in the initial removal proceeding. Bravo-Bravo forecloses

that argument; such a collateral attack may be raised “only in a petition for review

of a reinstatement proceeding or order.” 54 F.4th at 640 (citing Cuenca v. Barr,

956 F.3d 1079, 1087 (9th Cir. 2020)). We reject Petitioner’s argument that recent

Supreme Court decisions, such as Santos-Zacaria v. Garland, 598 U.S. 411 (2023),

affect the outcome. Those decisions applied longstanding rules that distinguish

between claim-processing rules and jurisdictional ones to statutes not applicable

here. None of the decisions that Petitioner cites is “clearly irreconcilable” with

Bravo-Bravo. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

2. Petitioner separately argues that ICE improperly denied his motion to

reopen and rescind the 2018 reinstatement order. ICE’s denial of Petitioner’s

motion was an exercise of its prosecutorial discretion. Morales de Soto v. Lynch,

3 824 F.3d 822, 825 (9th Cir. 2016). Accordingly, we lack jurisdiction and dismiss

this part of the petition for review. See Heckler v. Chaney, 470 U.S. 821, 831

(1985) (holding that an agency’s decision whether to prosecute or enforce is

“generally committed to an agency’s absolute discretion”); see also Morales de

Soto, 824 F.3d at 827 (holding courts lack authority to review the merits of ICE’s

discretionary decision to reinstate a prior removal order when the factual predicates

for reinstatement are met (citing 8 U.S.C. § 1252(a)(2)(B)).

PETITION DENIED IN PART and DISMISSED IN PART.