Eduardo Junqueira v. Merrick Garland

CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 10, 2023
Docket20-71899
StatusUnpublished

This text of Eduardo Junqueira v. Merrick Garland (Eduardo Junqueira v. Merrick Garland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eduardo Junqueira v. Merrick Garland, (9th Cir. 2023).

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDUARDO RALPH JUNQUEIRA, No. 20-71899

Petitioner, Agency No. A098-006-386

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

Respondent.

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

Submitted February 8, 2023** Phoenix, Arizona

Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.

Petitioner Eduardo Ralph Junqueira, a native and citizen of Brazil, petitions

for review of the Board of Immigration Appeals’ (“BIA”) dismissal, for lack of

jurisdiction, 8 U.S.C. § 1231(a)(5), of his appeal of the denial of a motion to

reconsider an Immigration Judge’s (“IJ”) previous denial of a motion to reopen.

* 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). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.

Our review of the denial of a motion to reopen is limited to determining

whether the BIA or IJ erred in concluding that the IJ lacked jurisdiction.1 See

Bravo-Bravo v. Garland, 54 F.4th 634, 638 (9th Cir. 2022); 8 U.S.C.

§ 1252(a)(2)(D); see also Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th

Cir. 2018) (when the BIA agrees with the IJ’s decision and adds its own reasoning,

we review both decisions). “Whether [8 U.S.C.] § 1231(a)(5) bars the agency from

reopening a prior removal order and proceeding . . . [pursuant to 8 U.S.C.]

§ 1229a(c)(7) or sua sponte” under 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1) (2020)

“are questions of law we review de novo.” Bravo-Bravo, 54 F.4th at 640.

Title 8 U.S.C. § 1231(a)(5) “explicitly insulates the underlying removal

orders from review, and generally forecloses discretionary relief from the terms of

the reinstated order.” Id. at 637 (citation and internal quotation marks omitted).

Therefore, the BIA and IJ did not err in concluding that § 1231(a)(5) bars

consideration of Junqueira’s motion to reopen his reinstated removal order. Id. at

640–41.

Junqueira seeks to attack his underlying removal order collaterally because

of an alleged gross miscarriage of justice, but such collateral attacks may be raised

1 We treat Junqueira’s motion to reconsider the denial of his motion to reopen removal proceedings as an extension of his original motion to reopen removal proceedings.

2 20-71899 “only in a petition for review of a reinstatement proceeding or order.” Id. at 640.

(emphasis added). Here, the BIA dismissed Junqueira’s appeal regarding his

motion to reconsider reopening his removal order. Thus, the statute precludes our

review.

Junqueira also attempts to analogize his case to Miller v. Sessions, 889 F.3d

998 (9th Cir. 2018), in which we held that, in an exception to the usual

jurisdictional bar in § 1231(a)(5), a petitioner may seek recission of a removal

order entered in absentia, based on lack of notice, at any time. 889 F.3d at 1002–

03. Miller does not apply because Junqueira’s removal order was not entered in

absentia, so there was no risk that he would “first learn[] of the prior removal order

at the outset of the reinstatement proceeding.” Id. at 1002.

Junqueira nonetheless attempts to place himself within Miller’s broader

lack-of-notice logic, arguing that the two-step Notice to Appear (“NTA”) he

received to commence his 2004 removal proceedings was insufficient given the

Supreme Court’s rulings in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and

Pereira v. Sessions, 138 S. Ct. 2105 (2018). Our decision in United States v.

Bastide-Hernandez, 39 F.4th 1187, 1190–93, 1191 n.6 (9th Cir. 2022) (en banc),

petition for cert. docketed No. 22-6281 (U.S. Dec. 12, 2022), forecloses this

argument.

3 20-71899 Finally, Junqueira contends that the BIA and IJ should have invoked their

sua sponte authorities to reopen his removal proceedings given his two-step NTA

and the effects of Niz-Chavez and Pereira. See 8 C.F.R. §§ 1003.2(a),

1003.23(b)(1) (2020) (then-applicable BIA and IJ sua sponte authorities).

However, § 1231(a)(5) bars the IJ and BIA from exercising their sua sponte

authorities to reopen. See Gutierrez-Zavala v. Garland, 32 F.4th 806, 809–10 (9th

Cir. 2022) (declining to address the petitioner’s arguments that the BIA should

have exercised its sua sponte reopening authority because “[t]he necessary and

certain result of § 1231(a)(5)’s bar . . . is the denial of [the petitioner’s] motion to

reopen for the BIA’s lack of jurisdiction.”).

The petition is DENIED.

4 20-71899

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Related

Jose Garcia-Martinez v. Jefferson Sessions
886 F.3d 1291 (Ninth Circuit, 2018)
Dorna Miller v. Jefferson Sessions
889 F.3d 998 (Ninth Circuit, 2018)
Pereira v. Sessions
585 U.S. 198 (Supreme Court, 2018)
Jose Gutierrez-Zavala v. Merrick Garland
32 F.4th 806 (Ninth Circuit, 2022)
United States v. Juan Bastide-Hernandez
39 F.4th 1187 (Ninth Circuit, 2022)

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