Jose Gutierrez-Zavala v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 2022
• Docket: 20-73398
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 2 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE GUTIERREZ-ZAVALA, No. 20-73398

Petitioner, Agency No. A090-155-378

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

Respondent.

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

Submitted February 14, 2022** Pasadena, California

Before: BRESS and BUMATAY, Circuit Judges, and GLEASON,*** District Judge.

Jose Gutierrez-Zavala, a native and citizen of Mexico, petitions for review of

a Board of Immigration Appeals (BIA) order denying his untimely 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).

*** The Honorable Sharon L. Gleason, Chief United States District Judge for the District of Alaska, sitting by designation. his removal proceedings. We review the BIA’s denial of a motion to reopen for an

abuse of discretion, but we review purely legal questions de novo. Cuenca v. Barr,

956 F.3d 1079, 1084 (9th Cir. 2020). We have jurisdiction pursuant to 8 U.S.C.

§ 1252, we grant the pending motion for judicial notice, and we deny the petition.

We first address the government’s motion to take judicial notice of the

Department of Homeland Security’s Notice of Intent/Decision to Reinstate Prior

Order. The record demonstrates that the BIA was aware of and considered the

Notice of Intent/Decision to Reinstate, although it did not base its decision on the

reinstatement of the removal order. Gutierrez-Zavala asserts that neither he nor his

counsel were served with the order of reinstatement of removal and so the

reinstatement of removal order cannot serve as a final order that deprived the BIA

of jurisdiction. However, Gutierrez-Zavala signed an acknowledgement of the

Department of Homeland Security’s determination to reinstate the prior removal

order. The motion for judicial notice at Docket 35 is therefore GRANTED.

8 U.S.C. § 1231(a)(5) provides that a prior order of removal “is not subject to

being reopened” if “the Attorney General finds that an alien has reentered the United

States illegally after having been removed . . . [and] the prior order of removal is

reinstated from its original date.” In Cuenca, 956 F.3d at 1088, we held that

§ 1231(a)(5) deprives the BIA of jurisdiction to consider a motion to reopen filed by

2 an alien who unlawfully reentered the United States after deportation and whose

removal order has been reinstated.

Here, Gutierrez-Zavala was found removable in 1999; he was deported from

the United States in 2003; he then unlawfully reentered the country; and the removal

order was reinstated in 2019. After the removal order was reinstated, and 17 years

after his original removal, Gutierrez-Zavala filed a motion to reopen proceedings

with the BIA pursuant to 8 U.S.C. § 1229a(c)(7) and the BIA’s sua sponte authority.

Section 1231(a)(5) barred the reopening of Gutierrez-Zavala’s removal proceedings.

See Cuenca, 956 F.3d at 1088.

The BIA did not deny Gutierrez-Zavala’s motion to reopen on this ground.

Instead, the BIA determined that the motion was untimely and that equitable tolling

due to ineffective assistance of counsel and a change in the law was not warranted.

The BIA also decided not to exercise its discretion to sua sponte reopen the

proceedings based on interests of finality. Although this court’s review of BIA

decisions is generally limited to the grounds on which the BIA based its decision,

that doctrine does not apply where the BIA had no jurisdiction to consider the motion

to reopen and was statutorily required to deny the motion. See Morgan Stanley Cap.

Grp. Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cnty., 554 U.S. 527, 544–45 (2008).

Because we conclude that the BIA did not have jurisdiction to consider Gutierrez-

3 Zavala’s motion to reopen, we do not address his arguments regarding equitable

tolling and the BIA’s sua sponte authority to reopen proceedings.

PETITION DENIED.