enjoined. See Cath. Legal Immigr. Network, Inc. v. Exec. Office for Immigr. Rev.,
No. 21-00094, 2021 WL 3609986 at *1 (D.D.C. Apr. 4, 2021); Centro Legal de la
Raza v. Exec. Office for Immigr. Rev., 524 F. Supp. 3d 919, 928 (N.D. Cal. 2021).
We do not express a view on the current status of the regulation or the impact of
the stays. >. On slip opinion page 11, replace with .
On slip opinion page 12, delete footnote 7.
The respondent’s motion to amend (Dkt. 51) is hereby granted in part and
denied in part.
The time to file a petition for rehearing or petition for rehearing en banc is
not extended by this amendment. The petition for rehearing or petition for
rehearing en banc is due on or before December 6, 2022. OPINION
Under the Immigration and Nationality Act, if an alien has reentered the
United States illegally after having been removed, “the prior order of removal is
reinstated from its original date and is not subject to being reopened or reviewed.”
8 U.S.C. § 1231(a)(5). In this case, an alien subject to such a reinstated removal
order claims there is an exception to § 1231(a)(5) for removal orders that result in a
gross miscarriage of justice or alternatively, that the immigration agency has
authority to reopen such removal orders sua sponte. Because neither of these
exceptions overrides the unambiguous bar on reopening in § 1231(a)(5), we deny
the alien’s petition for review.
I
Ricardo Bravo-Bravo seeks review of an opinion by the Board of
Immigration Appeals (BIA), which upheld a decision by the immigration judge (IJ)
denying his motion to reopen his prior removal proceedings. Before addressing the
merits of Bravo-Bravo’s appeal, we provide background regarding the applicable
legal framework.
After an alien has been ordered removed from the United States, the alien
generally may file only one motion to reopen proceedings, and must do so within
90 days of the date the final order of removal was entered. 8 U.S.C.
2 § 1229a(c)(7).1 An alien may also ask the IJ or BIA to reopen proceedings sua
sponte. 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1).2
If the alien “takes matters into his own hands and unlawfully reenters the
United States” after being removed, Cuenca v. Barr, 956 F.3d 1079, 1082 (9th Cir.
2020), an immigration officer may reinstate the prior removal order. 8 U.S.C.
1 There is no time limit for filing a motion to reopen under certain circumstances related to changed conditions in the country to which the alien is ordered removed, or if the basis for removal relates to domestic violence. 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv). 2 At the time the agency ruled in this case, the applicable regulation permitted an IJ to “upon his or her own motion at any time . . . reopen or reconsider any case in which he or she has made a decision.” 8 C.F.R. § 1003.23(b)(1) (2020). After revisions in January 15, 2021, the regulation now states that an IJ may reopen a case “solely in order to correct a ministerial mistake or typographical error in that decision or to reissue the decision to correct a defect in service.” 8 C.F.R. § 1003.23(b)(1) (2021). The current regulation has been stayed and preliminarily enjoined. See Cath. Legal Immigr. Network, Inc. v. Exec. Office for Immigr. Rev., No. 21-00094, 2021 WL 3609986 at *1 (D.D.C. Apr. 4, 2021); Centro Legal de la Raza v. Exec. Office for Immigr. Rev., 524 F. Supp. 3d 919, 928 (N.D. Cal. 2021). We do not express a view on the current status of the regulation or the impact of the stays. 3 § 1231(a)(5).3 In such a case, “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.” Id.
Section 1231(a)(5) “explicitly insulates the [underlying] removal orders from
review, and generally forecloses discretionary relief from the terms of the
reinstated order.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006). Despite
this bar, we have jurisdiction to review certain challenges to the reinstatement
proceedings and orders under 8 U.S.C. § 1252(a)(2)(D) (giving circuit courts
jurisdiction to hear “constitutional claims or questions of law”). First, we may
review an alien’s claims that the agency failed to comply with applicable
reinstatement regulations in conducting the reinstatement proceeding. See Garcia
de Rincon v. Dep’t of Homeland Security, 539 F.3d 1133, 1137 (9th Cir. 2008).
Second, we may review an alien’s “collateral attack on the underlying removal
3 8 U.S.C. § 1231(a)(5) provides:
If 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. 4 order . . . if the [alien] can show that he has suffered a gross miscarriage of justice”
in the initial removal proceedings. Cuenca, 956 F.3d at 1087) (quoting Garcia de
Rincon, 539 F.3d at 1138) (internal quotation marks omitted).
While we have jurisdiction to review the reinstatement order and
proceedings under the circumstances described above, an alien is barred by
§ 1231(a)(5) from bringing a motion to reopen a reinstated removal order under
§ 1229a(c)(7). Id.4 This “bar is a consequence of having reentered unlawfully,”
which makes the alien subject to a “less favorable legal regime,” including
“forfeiture of the right to reopen under § 1229a(c)(7).” Id. at 1082, 1087. Such
forfeiture “is the clear import of the statute’s unambiguous text.” Gutierrez-Zavala
v. Garland, 32 F.4th 806, 809 (9th Cir. 2022) (citing Cuenca, 956 F.3d at 1084).
Accordingly, the BIA is required to deny such a motion to reopen for lack of
jurisdiction. Id. at 810. Although we have jurisdiction to review the denial of a
motion to reopen a reinstated removal order for legal or constitutional error, see
Nath v. Gonzales, 467 F.3d 1185, 1188 (9th Cir. 2006) (citing 8 U.S.C.
§ 1252(a)(2)(D)), our review is generally limited to ascertaining that the BIA was
4 There is one exception to this general rule. An alien “retains the right conferred by [8 U.S.C.] § 1229a(b)(5)(C)(ii), to seek rescission of a removal order entered in absentia, based on lack of notice, by filing a motion to reopen ‘at any time.’” Miller v. Sessions, 889 F.3d 998, 1002–03 (9th Cir. 2018). 5 required to deny such a motion for lack of jurisdiction, see Gutierrez-Zavala, 32
F.4th at 810–11. Even if the BIA denied the motion to reopen on non-
jurisdictional grounds, we do not remand the petition to the agency
(notwithstanding “the “venerable Chenery doctrine” that our review is typically
limited to the reasons given by the agency). Id. at 810 (citing SEC v. Chenery
Corp., 318 U.S. 80, 87 (1943)). This is because the BIA’s denial of a motion to
reopen a reinstated removal order is “[t]he necessary and certain result of
§ 1231(a)(5)’s bar and our decision in Cuenca,” and we need not engage in the
“idle and useless formality” of remand. Id. (quoting NLRB v. Wyman-Gordon Co.,
394 U.S. 759, 766 n.6 (1969) (plurality opinion)).
In summary, an alien may file a timely petition for review of a reinstated
removal order on several grounds.5 First, the alien may challenge errors or defects
in the reinstatement proceeding or reinstatement order. Second, the alien may
collaterally attack the removal order underlying the reinstatement order, provided
that the alien can claim there was a gross miscarriage of justice in the proceedings
resulting in the underlying removal order. But the alien may generally not reopen
5 Although “[t]he petition for review must be filed not later than 30 days after the date of the final order of removal,” 8 U.S.C. § 1252(b)(1), we have held that the thirty days runs from the date of the final reinstatement order. Vega-Anguiano v. Barr, 982 F.3d 542, 545 (9th Cir. 2019). 6 the reinstated prior removal order or proceeding, because the BIA must deny a
motion to reopen for lack of jurisdiction under § 1231(a)(5), and we will deny a
petition to review that denial. Gutierrez-Zavala, 32 F.4th at 810.
II
We now turn to the facts of this case. Bravo-Bravo is a native and citizen of
Mexico whose status was adjusted to that of a lawful permanent resident in 1997.
After his adjustment of status, Bravo-Bravo was convicted of four separate crimes
in Washington state court, including for the offense of criminal delivery of a
controlled substance in July 2002, see Wash. Rev. Code § 69.50.401(a)(1).
Because at that time the July 2002 conviction qualified as an aggravated felony
under immigration law, 8 U.S.C. § 1101(a)(43)(B), Bravo-Bravo was therefore
removable under 8 U.S.C. § 1227(a)(2)(A)(iii). At the removal hearing on June 9,
2003, Bravo-Bravo was ordered removed to Mexico, and was subsequently
removed.
Some time later, Bravo-Bravo illegally reentered the United States. See
Bravo-Bravo v. Barr, 808 F. App’x 593, 594 (9th Cir. 2020). In 2016, the
government detained Bravo-Bravo and reinstated his 2003 removal order under
§ 1231(a)(5). Id. at 593–94.
7 In January 2017, Bravo-Bravo filed a petition for review of the reinstatement
order. Id. at 593. Bravo-Bravo argued that “the reinstatement was improper
because his reentry to the United States was not illegal, and that his underlying
removal order constituted a gross miscarriage of justice.” Id. at 593–94. We
rejected both claims, however, in a memorandum disposition filed June 12, 2020.
Id. First, we held that Bravo-Bravo’s reentry into the United States was illegal,
because he deceived the border control agent into thinking he was authorized to
enter the country. Id. at 594. Second, we held that his collateral attack on his prior
removal order failed. Bravo-Bravo had argued that his prior removal order was
unjust because “his state conviction serving as the basis of his removal was
expunged by the state court, and because this court subsequently held that a
conviction under Wash. Rev. Code § 69.50.401(a)(1) is not an aggravated felony.”
Id. We rejected this argument, holding that even if the state court had expunged
Bravo-Bravo’s crime, “that expungement does not speak to the fairness of his
underlying removal proceeding.” Id. Given that the Washington conviction “was
an aggravated felony at the time [Bravo-Bravo] was convicted,” we concluded
there was no miscarriage of justice. Id.
While Bravo-Bravo’s petition for review of the reinstatement order and
proceeding was still pending, Bravo-Bravo filed a motion with the IJ to reopen his
8 2003 removal order and proceedings under 8 U.S.C. § 1229a(c)(7), or in the
alternative to exercise the sua sponte authority to reopen the removal order and
proceedings under 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1). In asking the IJ to reopen
his original removal order and proceedings, Bravo-Bravo reiterated the argument
he had raised in his petition for review of the reinstated removal order: that his
2002 conviction had been expunged by the Washington state court and the offense
was no longer categorized as an aggravated felony. Although Bravo-Bravo
recognized that a motion to reopen had to be filed within 90 days after the entry of
a final order of removal, 8 U.S.C. § 1229a(c)(7), 8 C.F.R. § 1003.23(b)(1), he
argued that the deadline should be equitably tolled. In the alternative, Bravo-Bravo
asked the IJ to sua sponte reopen the 2003 removal order and proceedings under 8
C.F.R. § 1003.23.
In May 2019, the IJ denied the motion to reopen as untimely and rejected
Bravo-Bravo’s arguments for equitable tolling. The IJ declined to sua sponte
reopen the prior removal order and proceedings due to the absence of exceptional
circumstances. Bravo-Bravo filed an administrative appeal, which the BIA
dismissed. Relying on Cuenca, the BIA held that 8 U.S.C. § 1231(a)(5) constitutes
a “permanent jurisdictional bar” to reopening the prior removal order, and
9 therefore the IJ lacked jurisdiction to reopen Bravo-Bravo’s removal order and
proceedings. Bravo-Bravo timely petitioned for review.6
III
Our jurisdiction to review the denial of Bravo-Bravo’s motion to reopen is
limited to determining whether the BIA erred in concluding that the IJ lacked
jurisdiction. See 8 U.S.C. § 1252(a)(2)(D). “Although we review the BIA’s denial
of a motion to reopen for an abuse of discretion, purely legal questions receive de
novo review.” Cuenca, 956 F.3d at 1084. Whether § 1231(a)(5) bars the agency
from reopening a prior removal order and proceeding on Bravo-Bravo’s motion
under § 1229a(c)(7) or sua sponte under 8 C.F.R. § 1003.23(b)(1) are questions of
law we review de novo. Id.
On appeal, Bravo-Bravo first argues that the IJ had jurisdiction to consider
his motion to reopen his 2003 removal order and proceedings because an alien may
collaterally challenge a removal order when it results in a gross miscarriage of
justice. As he did in his first petition for review of his reinstatement proceeding
and order, Bravo-Bravo argues that his initial removal order was unjust. But this
6 Bravo-Bravo filed this petition for review in April 2020. In June 2021, Bravo-Bravo filed an unopposed motion to refer his petition to the Ninth Circuit’s Mediation Office, which we granted. After mediation efforts proved unsuccessful, we resumed consideration of the petition. 10 time he raises a new theory of injustice: he argues that his underlying conviction,
which served as the sole predicate for his removal, was expunged because the state
court held that his defense counsel failed to inform him of the immigration
consequences of his guilty plea, which amounted to a violation of his right to
counsel under the Sixth Amendment.
We reject this argument, because it is not cognizable in the context of this
current appeal. An alien such as Bravo-Bravo may make a collateral attack on the
underlying removal order on the ground that it results in a gross miscarriage of
justice, but only in a petition for review of a reinstatement proceeding or order.
Cuenca, 956 F.3d at 1087. Indeed, Bravo-Bravo raised a related challenge in his
petition for review of his reinstatement order, which we rejected. Bravo-Bravo,
808 F. App’x at 594. By contrast, as explained in Cuenca, Bravo-Bravo’s motion
to reopen a reinstated prior removal order is barred under § 1231(a)(5). Neither the
IJ nor the BIA had jurisdiction to address Bravo-Bravo’s arguments regarding the
underlying removal order. Our jurisdiction is limited to determining whether the
BIA made a legal error in dismissing Bravo-Bravo’s appeal. It did not, because the
BIA correctly determined that it lacked jurisdiction over Bravo-Bravo’s collateral
challenge.
11 Second, Bravo-Bravo argues that the BIA erred in holding that the IJ lacked
jurisdiction to reopen his prior removal order and proceedings sua sponte. Because
the IJ had authority under the then-applicable regulation to “reopen or reconsider
any case in which he or she has made a decision,” at any time, 8 C.F.R.
§ 1003.23(b)(1) (2020), Bravo-Bravo argues, the IJ retained such authority in his
case notwithstanding the statutory bar in § 1231(a)(5).
We disagree. Cuenca read the language of § 1231(a)(5) “to unambiguously
bar reopening a reinstated prior removal order” and to divest the BIA “of
jurisdiction to reopen a removal proceeding after reinstatement of the underlying
removal order.” 956 F.3d at 1084. Although the then-applicable regulation cited
by Bravo-Bravo gave the BIA and the IJ the authority to reopen cases sua sponte,
that regulation did not expressly provide that such authority overrode the language
of § 1231(a)(5) precluding the agency from reopening a reinstated prior removal
order. Nor could it, given that “a regulation does not trump an otherwise
applicable statute unless the regulation’s enabling statute so provides.” United
States v. Maes, 546 F.3d 1066, 1068 (9th Cir. 2008). This case is therefore unlike
Miller, where a statute gave aliens the right to seek a motion to reopen “at any time
if the alien demonstrates that the alien did not receive notice” of the agency’s
decision. See 889 F.3d at 999 n.1 (citing 8 U.S.C. § 1229a(b)(5)(C)(ii)). As the
12 Fifth Circuit explained in rejecting a similar argument relating to the BIA’s sua
sponte reopening authority, under § 1231(a)(5), an alien’s prior removal order and
proceedings are “‘not subject to being reopened,’ and the regulation providing the
BIA’s sua sponte reopening authority cannot override that command.”
Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 355 (5th Cir. 2018).7
PETITION DENIED.
7 Bravo-Bravo urges us to overrule Cuenca because its interpretation of § 1231(a)(5) is not reconcilable with other Ninth Circuit precedents. Because we are bound by our precedent unless its reasoning is “clearly irreconcilable with the reasoning of intervening higher authority,” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), we reject this argument. 13