Guillermo Tehuitzil-Perez v. Merrick Garland

Opinion

FILED

NOT FOR PUBLICATION

FEB 14 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUILLERMO TEHUITZIL-PEREZ, AKA No. 18-70129 Guillermo Perez, Agency No. A098-289-102

Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 10, 2023** Phoenix, Arizona

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

Guillermo Tehuitzil-Perez petitions for review of the Board of Immigration Appeals’ (BIA’s) order dismissing his appeal of an Immigration Judge’s (IJ’s) decision denying his motion to reopen his removal order. Tehuitzil-Perez

*

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).

reentered the United States illegally after he had been removed in 2004, and the Department of Homeland Security (DHS) reinstated his removal order on May 17, 2015. See 8 U.S.C. § 1231(a)(5). The following month, he was apprehended after illegally reentering the United States again. DHS initiated the reinstatement process once more, but Tehuitzil-Perez was placed in withholding-only proceedings after an asylum officer found that he had a reasonable fear of persecution in Mexico. On June 22, 2017, with his withholding-only proceedings still pending, Tehuitzil-Perez filed a motion to reopen his 2004 removal order pursuant to 8 U.S.C. § 1229a(c)(7).

The IJ concluded that he lacked jurisdiction to consider Tehuitzil-Perez’s motion to reopen because 8 U.S.C. § 1231(a)(5) provides that a reinstated removal order is “not subject to being reopened or reviewed.” Alternatively, the IJ rejected Tehuitzil-Perez’s motion to reopen on timeliness grounds and on the merits. The BIA dismissed Tehuitzil-Perez’s appeal from the IJ’s decision, reasoning that it lacked jurisdiction per § 1231(a)(5). We have jurisdiction to review the BIA’s dismissal order, 8 U.S.C. § 1252, and we deny the petition for review.

1. Tehuitzil-Perez first argues that § 1231(a)(5)’s bar against reopening does not apply because his “reinstated removal process was not final but rather ongoing” due to his pending withholding-only proceedings. This argument fails for two

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reasons. First, as Tehuitzil-Perez acknowledges, the 2004 removal order had already been reinstated and executed in 2015. Second, even if the reinstated removal order could not yet be executed for a second time due to the withholding- only proceedings, the reinstated removal order was final for purposes of § 1231(a)(5). See Padilla-Ramirez v. Bible, 882 F.3d 826, 832 (9th Cir. 2017) (“Withholding-only proceedings do not, however, purport to override section 1231(a)(5)’s prohibition on reopening or reviewing a prior removal order.”).

2. Next, relying on statements from our decisions in Morales-Izquierdo v.

Gonzales, 486 F.3d 484, 497 (9th Cir. 2007) (en banc), and Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018), Tehuitzil-Perez argues that even if his removal order was reinstated, § 1231(a)(5) does not preclude review of a motion to reopen. This argument is foreclosed by our recent decision in Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020), which was issued after briefing in this case concluded. In Cuenca, we held that “§ 1231(a)(5) bars reopening a removal order that has been reinstated following an alien’s unlawful reentry into the United States.” Id. at 1088. Cuenca also explained that Morales and Miller concerned the narrower reopening procedure found in 8 U.S.C. § 1229a(b)(5)(C)(ii), which is available only to petitioners who were removed in abstentia. Id. at 1085–87. Tehuitzil-Perez was not removed in abstentia, nor does he seek reopening under § 1229a(b)(5)(C)(ii).

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Cuenca therefore governs this appeal, and we conclude that the BIA correctly dismissed Tehuitzil-Perez’s appeal for lack of jurisdiction.

PETITION FOR REVIEW DENIED.