Perez-Vargas v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2023
• Docket: 21-1101
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICENTE PEREZ-VARGAS, No. 21-1101 Agency No. Petitioner, A076-345-760 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Department of Homeland Security

Submitted August 22, 2023** San Francisco, California

Before: BUMATAY, KOH, and DESAI, Circuit Judges.

Vincente Perez-Vargas, a native and citizen of Mexico, petitions for review

of the United States Customs and Border Protection (“CBP”)’s decision to decline

to reopen and rescind his Final Administrative Removal Order (“FARO”). We

* 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). dismiss the petition.

The former Immigration and Naturalization Service issued a FARO against

Perez-Vargas in October 1999. The Department of Homeland Security reinstated

the 1999 FARO on November 21, 2018. In August 2021, Perez-Vargas requested

that CBP reopen and rescind the 1999 FARO. CBP denied the request to reopen on

October 21, 2021. Perez-Vargas filed the petition for review after receiving the CBP

denial letter.

CBP lacked jurisdiction to reopen the reinstated FARO. See 8 U.S.C.

§ 1231(a)(5); see also Cuenca v. Barr, 956 F.3d 1079, 1088 (9th Cir. 2020) (holding

that Ҥ 1231(a)(5) bars reopening a removal order that has been reinstated following

an alien’s unlawful reentry into the United States”). And because Perez-Vargas filed

the petition for review more than 30 days after the FARO was reinstated, we lack

jurisdiction to consider any collateral attack on his underlying removal order. See 8

U.S.C. § 1252(b)(1); see also Bravo-Bravo v. Garland, 54 F.4th 634, 638 & n.5 (9th

Cir. 2022) (holding that an “alien may collaterally attack the removal order

underlying the reinstatement order” if the alien “file[s] a timely petition for review

of [the] reinstated removal order” (emphasis added)).

PETITION DISMISSED.

2 21-1101