Cesar Hernandez-Rivera v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 26, 2021
• Docket: 20-70190
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CESAR ANTONIO HERNANDEZ- No. 20-70190 RIVERA, AKA Cesar R. Hernandez, Agency No. A091-077-655 Petitioner,

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. Cesar Hernandez-Rivera, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an

immigration judge’s (IJ) denial of his motion to reopen. We have jurisdiction under

8 U.S.C. § 1252, and we deny Hernandez-Rivera’s petition.

The BIA lacked jurisdiction to entertain Hernandez-Rivera’s motion to

reopen. Federal law clearly states that “[i]f the Attorney General finds that 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) (emphasis added). This Court has

recognized that § 1231(a)(5)’s language “unambiguously bar[s] reopening a

reinstated prior removal order.” Cuenca v. Barr, 956 F.3d 1079, 1084 (9th Cir.

2020). Here, Hernandez-Rivera was deported from the United States in 1997, he

reentered the country illegally, his prior removal order was reinstated in 2003, and

he was deported once more. As a result, Hernandez-Rivera’s original deportation

proceedings cannot be reopened.

Hernandez-Rivera suggests that § 1231(a)(5)’s reinstatement bar should not

apply to him because he did not actually reenter the country illegally after his initial

deportation. But Hernandez-Rivera does not dispute that the former Immigration

and Naturalization Service reinstated his original deportation order in 2003 because

it determined that he reentered the country illegally after having been removed, and

2 there is no indication in the record that he ever sought review of his deportation

order’s reinstatement. Thus, Hernandez-Rivera’s representations regarding his first

reentry into the United States are misplaced, and the reinstatement bar prevents him

from reopening his original deportation proceedings.

Finally, to the extent that Hernandez-Rivera challenges the BIA’s decision not

to reopen his deportation proceedings sua sponte, this Court lacks jurisdiction to

review such a claim absent a legal or constitutional error. See Bonilla v. Lynch, 840

F.3d 575, 588 (9th Cir. 2016). Hernandez-Rivera has not made such a showing.

PETITION DENIED.