Juan Carlos Alfaro-Garcia v. U.S. Attorney General

981 F.3d 978

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 30, 2020
• Docket: 19-12068
• Status: Published

Opinion

USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 1 of 11

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12068 ________________________

Agency No. A088-920-176

JUAN CARLOS ALFARO-GARCIA,

Petitioner,

versus

UNITED STATES ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(November 30, 2020)

Before JORDAN, LAGOA, and BRASHER, Circuit Judges.

LAGOA, Circuit Judge:

This appeal requires this Court to reconcile two immigration statutes—8

U.S.C. § 1229a(c)(7) and 8 U.S.C. § 1231(a)(5). Juan Carlos Alfaro-Garcia petitions USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 2 of 11

this Court for review of the Board of Immigration Appeals’ (“BIA”) final order

affirming the immigration judge’s denial of his motion to reopen his removal

proceedings. Alfaro-Garcia argues that the BIA’s decision conflicts with his

statutory right under § 1229a(c)(7) to “file one motion to reopen proceedings.”

Section 1231(a)(5), however, provides that if an alien illegally reenters the United

States after having been removed, “the prior order of removal is reinstated from its

original date and is not subject to being reopened or reviewed” and the alien “is not

eligible and may not apply for any relief under this chapter.” Because § 1231(a)(5)

unambiguously bars the reopening of a reinstated removal order where the alien has

illegally reentered the United States following his removal, we deny the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Alfaro-Garcia, a native and citizen of Mexico, entered the United States

without inspection at an unknown place on an unknown date.1 On November 20,

2007, the State of Florida charged Alfaro-Garcia with the following three offenses:

(1) committing a battery on a law enforcement officer (a felony offense); (2) driving

with a suspended license; and (3) resisting an officer without violence. Alfaro-

Garcia was adjudicated guilty of these offenses and sentenced to a term of

imprisonment of 180 days.

1 In his motion to reopen, Alfaro-Garcia claims that he initially entered the United States in July 1996. 2 USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 3 of 11

On March 4, 2008, the Department of Homeland Security (“DHS”) personally

served Alfaro-Garcia with a Notice to Appear, charging him as removable under

section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as “an alien present

in the United States without being admitted or paroled” and ordered him to appear

before an immigration judge. On August 5, 2008, Alfaro-Garcia entered a

“Stipulated Request for Order of Removal and Waiver of Hearing” (the “Stipulated

Request”). In the Stipulated Request, Alfaro-Garcia agreed that: (1) he “voluntarily

and knowingly” entered into the stipulation; (2) he received the Notice to Appear;

(3) he was advised of his right to be represented by counsel; (4) he was not a United

States citizen; (5) he understood he had a right to a hearing before an immigration

judge, waived that right, and requested that his removal proceeding be conducted

based on the written record without a hearing; (6) he requested removal; (7) he

admitted all the factual allegations in the Notice to Appear; (8) he would not apply

for any relief from removal; (9) he waived his right to appeal the written decision;

and (10) he read the entire document, understood its consequences, and entered into

it “voluntarily, knowingly, and intelligently.” Alfaro-Garcia also signed a copy of

the document translated into Spanish.

On August 8, 2008, the immigration judge ordered Alfaro-Garcia removed

from the United States to Mexico based on the Stipulated Request. On August 12,

2008, DHS removed Alfaro-Garcia from the United States to Mexico. According to

3 USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 4 of 11

Alfaro-Garcia, he illegally reentered the United States in November 2008 and has

continuously resided in the country since his illegal reentry. When Alfaro-Garcia’s

wife filed an I-130 Petition for Alien Relative, DHS learned that Alfaro-Garcia was

living in the United States.

On April 23, 2018, DHS issued a “Notice of Intent/Decision to Reinstate Prior

Order,” which alleged that Alfaro-Garcia illegally reentered the United States on an

unknown date. On that same day, DHS reinstated the prior 2008 order of removal.

On August 9, 2018, Alfaro-Garcia filed a motion to reopen his removal

proceedings. In his motion, Alfaro-Garcia argued that reopening the removal

proceeding was warranted based on two grounds: (1) conditions in Mexico had

changed since his order of removal to warrant reopening of the proceedings; and (2)

he was eligible for cancellation of removal, and therefore the immigration judge

should sua sponte reopen the proceedings. Attached to his motion was the 2017

Human Rights Report for Mexico, an application for cancellation of removal and

adjustment of status for certain nonpermanent residents, and his arrest records. On

August 24, 2018, the immigration judge granted the motion to reopen on the basis

that DHS had not filed a response to the motion.

On August 31, 2018, DHS filed a motion to reconsider the immigration

judge’s order, arguing that it was not properly served with Alfaro-Garcia’s motion

to reopen, that Alfaro-Garcia’s motion was not timely filed, that the immigration

4 USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 5 of 11

judge should not exercise its sua sponte powers to reopen the case, and that Alfaro-

Garcia failed to establish he was eligible for relief. On September 12, 2018, the

immigration judge granted DHS’s motion to reconsider, explaining that the

immigration judge was unaware that Alfaro-Garcia had reentered the United States

illegally after being removed to Mexico pursuant to the stipulated order of removal

and that DHS had executed a Notice of Intent/Decision to Reinstate Prior Order of

Removal against Alfaro-Garcia. As the immigration judge determined that he lacked

jurisdiction to reopen the proceedings, the August 24, 2018, order was rescinded.

Alfaro-Garcia appealed the immigration judge’s decision to the BIA. On May

1, 2019, the BIA dismissed the appeal, concluding that “once the Immigration Judge

was made aware that the DHS was reinstating the respondent’s August 8, 2008,

stipulated order of removal, the Immigration Judge was statutorily precluded from

exercising jurisdiction over the respondent’s motion to reopen” pursuant to 8 U.S.C.

§ 1231(a)(5). The BIA also addressed Alfaro-Garcia’s claim that he feared returning

to Mexico, finding that because Alfaro-Garcia had never undergone a reasonable

fear interview with a DHS officer, his remedy was to request one from DHS.

Additionally, the BIA found that Alfaro-Garcia did not establish a “gross

miscarriage of justice,” as he failed to demonstrate that he was not removable when

he waived his right to a hearing before an immigration judge and failed to timely

appeal his removal order. This timely petition for review ensued.

5 USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 6 of 11

II. STANDARD OF REVIEW

“We review the [BIA’s] denial of a motion to reopen removal proceedings for

abuse of discretion.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009)

(alteration in original) (quoting Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir.

2007)). “The BIA abuses its discretion when it misapplies the law in reaching its

decision . . . [or] by not following its own precedents without providing a reasoned

explanation for doing so.” Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th

Cir. 2013). However, “[t]o the extent that the decision of the [BIA] was based on a

legal determination, our review is de novo.” Li, 488 F.3d at1374. “The moving

party bears a heavy burden, as motions to reopen are disfavored, especially in

removal proceedings.” Zhang, 572 F.3d at 1319 (citation omitted). Additionally,

our review is limited to the BIA’s decision, except to the extent that it expressly

adopts the immigration judge’s opinion. See id.

III. ANALYSIS

In his petition, Alfaro-Garcia contends that the BIA’s decision to not reopen

his removal proceedings conflicts with his statutory right, under 8 U.S.C. §

1229a(c)(7), to file at least one motion to reopen and that 8 U.S.C. § 1231(a)(5) does

not preempt that right.2

2 Alfaro-Garcia does not challenge DHS’s reinstatement of his prior order of removal. 6 USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 7 of 11

Our analysis begins with the plain language of the two statutes. See United

States v. Zuniga–Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012). The fundamental

principle governing any exercise in statutory interpretation is that “we ‘begin[]

where all such inquiries must begin: with the language of the statute itself,’ and we

give effect to the plain terms of the statute.” In re Valone, 784 F.3d 1398, 1402 (11th

Cir. 2015) (alteration in original) (quoting United States v. Ron Pair Enters., Inc.,

489 U.S. 235, 241 (1989)). Under § 1229a(c)(7), an alien generally “may file one

motion to reopen proceedings” within ninety days of the date of entry of a final order

of removal. However, § 1231(a)(5) provides that

[i]f the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

(emphasis added). The plain language of § 1231(a)(5) unambiguously bars the

reopening or review of a reinstated removal order where an alien—like Alfaro-

Garcia—has illegally reentered the United States following his removal.

Alfaro-Garcia, nonetheless, argues that under § 1229a(c)(7) and this Court’s

decision in Jian Le Lin v. United States Attorney General, 681 F.3d 1236 (11th Cir.

2012), he is guaranteed the right to file at least one motion to reopen. In Jian Le Lin,

this Court determined that Congress, in enacting the Illegal Immigration Reform and

7 USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 8 of 11

Immigrant Responsibility Act of 1996, “guarantee[d] an alien the right to file one

motion to reopen,” and that the “departure bar” regulation, which required an alien

to be physically present in the United States to file a motion to reopen,

“impermissibly undercut[] that right.” Id. at 1240–41. But although an alien is

afforded the right to file one motion to reopen his removal proceedings under §

1229a(c)(7), Congress unambiguously provided in § 1231(a)(5) that this right is

forfeited when the alien illegally reenters the United States and his previous order of

removal is reinstated.

Indeed, three other circuit courts have reached this conclusion when

addressing the interplay between §§ 1229a(c)(7) and 1231(a)(5) in this context. For

example, in Cuenca v. Barr, 956 F.3d 1079, 1084 (9th Cir. 2020), the Ninth Circuit

determined that § 1231(a)(5) unambiguously barred the reopening of a reinstated

prior removal order. The Ninth Circuit noted that this plain reading of § 1231(a)(5)

“comport[ed] with the statute’s ‘clear Congressional purpose.’” Id. (quoting

Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 354 (5th Cir. 2018)). The Ninth

Circuit explained that, while “[r]einstatement once applied only to ‘a limited class

of illegal reentrants,’ and ‘the rest got the benefit of the ordinary deportation rules,’”

Congress had since enacted the Illegal Immigration Reform and Immigrant

Responsibility Act, “which replaced the old reinstatement provision ‘with one that

toed a harder line.’” Id. (quoting Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33–

8 USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 9 of 11

34 (2006)). Thus, § 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.’” Id. at 1085 (quoting Morales-

Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir. 2007) (en banc)). The Ninth

Circuit rejected the petitioner’s argument that its reading of § 1231(a)(5) created “a

conflict with § 1229a(c)(7) by eviscerating an alien’s right to file a motion to

reopen,” explaining that while § 1229a(c)(7) provides an alien the right to file one

motion to reopen his or her proceedings, § 1231(a)(5) “provides that an alien forfeits

that right by reentering the country illegally.” Id. at 1085 (emphasis in original)

(quoting Rodriguez-Saragosa, 904 F.3d at 354). The Fifth and Seventh Circuits

have similarly determined that § 1231(a)(5) institutes a permanent jurisdictional bar

for reopening a reinstated prior removal order. See Rodriguez-Saragosa, 904 F.3d

at 355 (“Rodriguez-Saragosa’s situation is precisely that which § 1231(a)(5) is

designed to cover: where a removed alien reenters the United States illegally with

full knowledge that he had been ordered removed. In such circumstances, ‘the prior

order of removal . . . is not subject to being reopened.’” (alteration in original)

(quoting § 1231(a)(5))); Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013)

(holding that Ҥ 1231(a)(5) bars reopening of a removal order that has been

reinstated after the alien’s illegal return to the United States”).

9 USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 10 of 11

We join the Fifth, Seventh, and Ninth Circuits in concluding that the plain

language of § 1231(a)(5) bars the reopening of a reinstated removal order following

an alien’s unlawful reentry into the United States. Here, Alfaro-Garcia stipulated to

being removed from the United States to Mexico. The immigration judge issued an

order of removal based on this stipulation, and DHS physically removed Alfaro-

Garcia to Mexico. Rather than remaining in Mexico to file a motion to reopen his

removal proceedings, Alfaro-Garcia illegally reentered the United States several

months after his initial removal. The facts of this case place Alfaro-Garcia “squarely

within the terms of § 1231(a)(5).” Cordova-Soto, 732 F.3d at 794–95. Section

1231(a)(5) bars the reopening of Alfaro-Garcia’s reinstated order of removal

because Alfaro-Garcia forfeited his statutory right to file a motion to reopen his

removal proceedings when he illegally reentered the United States. Indeed,

“[f]orfeiture of the right to reopen under § 1229a(c)(7) is part of the less favorable

regime to which [Alfaro-Garcia] is now subject by unlawfully reentering and

remaining in the United States despite his prior removal order.” Cuenca, 956 F.3d

at 1087–88. Therefore, the BIA did not abuse its discretion in denying Alfaro-

Garcia’s motion to reopen his removal proceedings.

IV. CONCLUSION

Section 1231(a)(5) unambiguously bars the reopening of a reinstated removal

order where the alien has illegally reentered the United States following his or her

10 USCA11 Case: 19-12068 Date Filed: 11/30/2020 Page: 11 of 11

initial removal. Because Alfaro-Garcia illegally reentered the United States from

Mexico following his removal, the BIA correctly determined that it could not reopen

the removal proceedings. Accordingly, we deny Alfaro-Garcia’s petition for review.

PETITION DENIED.