Gudelia Ochoa v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 10, 2020
• Docket: 16-73791
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUDELIA CARMELA OCHOA, No. 16-73791

Petitioner, Agency No. A206-571-864

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted December 12, 2019 Seattle, Washington

Before: GRABER and BERZON, Circuit Judges, and EZRA,** District Judge.

Petitioner Gudelia Carmela Ochoa seeks review of the Department of

Homeland Security’s (“DHS”) reinstatement of Petitioner’s prior removal order,

the Washington Immigration Judge’s (“IJ”) agreement with a DHS asylum

officer’s negative reasonable fear determination, and the New York IJ’s decision to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. terminate Petitioner’s proceedings. For the reasons stated below, we deny in part

and dismiss in part the petition.

1. The reinstatement of the initial removal order was valid regardless of the

validity of the initial removal order. “Reinstatement of a prior removal order—

regardless of the process afforded in the underlying order—does not offend due

process because reinstatement of a prior order does not change the alien’s rights or

remedies.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir. 2007) (en

banc). Under 8 U.S.C. § 1231(a)(5), a prior removal order is “reinstated from its

original date” and the initial removal order “is not subject to being reopened or

reviewed.” See Cuenca v. Barr, 941 F.3d 1213, 1218 (9th Cir. 2019) (“Section

1231(a)(5) establishes a process to expeditiously remove an alien who already is

subject to a removal order, thereby denying the alien any benefits from his latest

violation of U.S. law.” (citation, brackets, and internal quotation marks omitted)).

2. The Washington IJ’s negative reasonable fear determination was

supported by substantial evidence. An alien must demonstrate “a reasonable

possibility that he or she would be persecuted on account of his or her race,

religion, nationality, membership in a particular social group or political opinion,

or a reasonable possibility that he or she would be tortured in the country of

removal.” 8 C.F.R. § 208.31(c); see Andrade-Garcia v. Lynch, 828 F.3d 829, 832

2 (9th Cir. 2016). We must uphold the IJ’s negative reasonable fear determination

“unless, based on the evidence, ‘any reasonable adjudicator would be compelled to

conclude to the contrary.’” Id. at 833 (quoting Ai Jun Zhi v. Holder, 751 F.3d

1088, 1091 (9th Cir. 2014)). No reasonable adjudicator would feel so compelled

and, thus, we uphold the Washington IJ’s decision.

3. Whatever the alleged imperfections in the New York proceedings, we do

not have jurisdiction over them. Whatever may be the case where there is an

ongoing immigration proceeding and a reinstatement of removal order, and the two

pertain to the same event (such as the same border crossing), a pending proceeding

does not preclude a reinstatement order triggered by a different border crossing—

which is our case. That is, the proceedings here are not parallel or intertwined, but

rather are separate and distinct. The proceeding in New York pertained to

Petitioner’s having crossed the border without inspection in 1993. The

reinstatement here stems from Petitioner’s illegally trying to cross the border again

in mid-2016, after having done so in early 2016. The statutes authorize

reinstatement in this situation, and we cannot reach the New York proceedings,

whether they occurred before or after the reinstatement order.

Petition DENIED IN PART and DISMISSED IN PART.