Ballardo Gomez-Gomez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 9, 2021
• Docket: 18-72800
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 9 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BALLARDO GOMEZ-GOMEZ, No. 18-72800

Petitioner, Agency No. A075-103-309

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

Respondent.

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

Submitted July 7, 2021** Seattle, Washington

Before: CLIFTON and IKUTA, Circuit Judges, and CALDWELL,*** District Judge.

* 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 Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation. Ballardo Gomez-Gomez, a native and citizen of Nicaragua, seeks review of

the decision of the Board of Immigration Appeals (BIA) denying his motion to

reopen his deportation proceedings. We have jurisdiction under 8 U.S.C. § 1252,

and we deny the petition for review.

Because Gomez-Gomez’s removal order was reinstated for illegal reentry in

November 2012, it “is not subject to being reopened or reviewed” and Gomez-

Gomez “is not eligible and may not apply for” reopening. 8 U.S.C. § 1231(a)(5).

Section 1231(a)(5) “institut[es] a permanent jurisdictional bar” precluding a

motion to reopen under 8 U.S.C. § 1229a(c)(7). Cuenca v. Barr, 956 F.3d 1079,

1084 (9th Cir. 2020). This permanent bar applies both during the reinstatement

process and after it has concluded. See id. at 1085. We therefore reject

Gomez-Gomez’s argument that the bar no longer applies to him because his

reinstatement proceeding has concluded.

Gomez-Gomez forfeited his right to reopen his deportation proceedings

under § 1229a(c)(7) by reentering the country illegally. See id.; 8 U.S.C.

§ 1231(a)(5). Gomez-Gomez’s reliance on Morales-Izquierdo v. Gonzales, 486

F.3d 484, 495–96 (9th Cir. 2007), and Miller v. Sessions, 889 F.3d 998, 1002–03

(9th Cir. 2018), is misplaced, because the aliens in those cases sought rescission of

removal orders entered in absentia under 8 U.S.C. § 1229a(b)(5)(C)(ii), a form of

2 relief not available to Gomez-Gomez. Gomez-Gomez points to no other statutory

provision “that confers upon him the right to reopen his prior removal proceeding

despite § 1231(a)(5)’s plain command.” Cuenca, 956 F.3d at 1086–87.

Because the reinstatement bar is permanent, we also reject Gomez-Gomez’s

argument that the reinstatement bar does not apply because he is currently outside

the United States. In context, Morales-Izquierdo’s statement that if an alien “has a

legitimate basis for challenging his prior removal order, he will be able to pursue it

after he leaves the country” applies only to aliens who did not reenter the United

States illegally after being removed. 486 F.3d at 498. As explained above, by

reentering the country illegally, Gomez-Gomez forfeited his right to reopen his

removal proceedings. 8 U.S.C. § 1231(a)(5). Therefore, the BIA did not err in

holding that it lacked the authority to reopen his deportation proceedings.

We also reject Gomez-Gomez’s argument that the reinstatement bar does not

apply because the underlying order in his deportation proceedings violated his due

process rights. Although Gomez-Gomez was entitled to fair procedures at his

deportation hearing, he forfeited his right to a readjudication of his final removal

order by unlawfully reentering the country. Cuenca, 956 F.3d at 1087–88.

Moreover, the reinstatement bar does not preclude relief through an application for

withholding of removal or under the Convention Against Torture in reinstatement

3 proceedings, and does not preclude a “collateral attack on the underlying removal

order during review of the reinstatement order if the [alien] can show that he has

suffered a ‘gross miscarriage of justice’ in the initial deportation proceeding.” Id.

at 1087 (quoting Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133,

1138 (9th Cir. 2008)).

PETITION DENIED.