Jose Zambrano v. Eric Holder, Jr. , 725 F.3d 744 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2882
JOSE M. ZAMBRANO-REYES, also
known as JOSE MANUEL ZAMBRANO-
REYES,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A090-933-006
ARGUED FEBRUARY 15, 2013 — DECIDED AUGUST 2, 2013
Before FLAUM, WOOD, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This petition for judicial review
presents questions affecting aliens who were lawful permanent
residents and were removed because of criminal conduct, and
especially those who then reentered the United States unlaw-
fully. Petitioner Jose Zambrano-Reyes was a lawful permanent
2 No. 12-2822
resident of the United States, but he was ordered removed in
2000 on account of two felony convictions. Shortly after his
removal, he reentered the United States unlawfully. In 2011, he
was arrested by immigration officers and his removal order
from 2000 was reinstated. He then asked the Board of Immigra-
tion Appeals to reopen his original removal proceedings. He
argued that his initial removal was in error because he was
prevented from seeking discretionary relief from removal in
2000, while intervening Supreme Court decisions show that
discretionary relief should have been available to him back in
2000.
The Board denied his motion to reopen, finding that it was
untimely and that the 90-day statutory deadline should not be
equitably tolled to permit Zambrano-Reyes to reopen his
removal eleven years later. The Board also found that the
discretionary relief he sought was not available to him, despite
the changes in the law, because he had reentered the country
unlawfully. Zambrano-Reyes seeks review of the denial of his
motion to reopen. We have jurisdiction to review his petition
under 8 U.S.C. § 1252(a)(2)(D), but we agree with the Board
that Zambrano-Reyes’s unlawful reentry means he is not
eligible for the relief he seeks. See 8 U.S.C. § 1231(a)(5) (barring
reopening of removal proceedings); 8 C.F.R. § 1003.44(k)(2)
(barring discretionary relief from removal).
I. Factual, Legal, and Procedural Background
Zambrano-Reyes is a citizen of Mexico who entered the
United States in 1979 and was granted lawful permanent
resident status in 1989. In 1993, he pled guilty to two felony
counts of aggravated sexual abuse of a minor. He was sen-
No. 12-2822 3
tenced to six months in prison and four years of probation.
These convictions set the stage for the legal troubles that
followed.
A. Relevant Legal Background
To understand the legal issues Zambrano-Reyes presents,
we must begin with a brief history of the discretionary relief
from removal that he seeks. Under section 212(c) of the
Immigration and Nationality Act of 1952 (INA), if a lawful
permanent resident left the United States and would have been
excluded from reentering the country on one of the grounds
listed in the statute, he or she could seek discretionary relief
from that exclusion from the Attorney General. Pub. L. No. 82-
414, § 212(c), 66 Stat. 163, 187. The Board of Immigration
Appeals made that discretionary relief available to lawful
permanent residents who were subject to being deported, in
addition to those subject to exclusion. See Matter of S—, 6 I. &
N. Dec. 392, 396 (BIA 1954); Matter of Silva, 16 I. & N. Dec. 26,
27 (BIA 1976).1
In 1996 Congress twice amended the relevant portions of
the INA. The first amendment barred discretionary relief under
section 212(c) for those who had committed certain criminal
offenses. See Antiterrorism and Effective Death Penalty Act of
1
Under immigration law, an alien is “excludable” or “inadmissible” if the
government may prevent him or her from entering or reentering the United
States. Both terms are also used to describe an alien who is removable
because he or she is present in the United States without having been
lawfully admitted. See 8 U.S.C. § 1182(a) (setting forth the grounds of
inadmissibility). “Deportation” or “removal” refers to the removal of an
alien who falls into any of the classes of “deportable aliens” under 8 U.S.C.
§ 1227(a).
4 No. 12-2822
1996 (AEDPA), Pub. L. No. 104-132, § 440(d), 110 Stat. 1214,
1277. Congress then eliminated section 212(c) relief altogether,
replacing it with another form of discretionary
relief—“cancellation of removal”—which is not available to
permanent residents who have been convicted of an “aggra-
vated felony.” Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
§ 304(a), 110 Stat. 3009-546, -594; cancellation of removal
codified at 8 U.S.C. § 1229b(a).
AEDPA and IIRIRA did not specify whether or how their
new bars to discretionary relief under section 212(c) would
apply to someone in Zambrano-Reyes’s position—permanent
residents who were convicted of disqualifying felonies before
the new laws took effect. The Attorney General issued an
opinion in 1997 stating that discretionary relief under former
section 212(c) was not available in any removal proceedings
occurring after AEDPA became effective. Matter of Soriano,
21 Op. OLC 1 (Op. Att’y Gen. 1997). Under the Attorney
General’s view in Soriano, even if a permanent resident had
pled guilty to a disqualifying crime before AEDPA was passed,
as Zambrano-Reyes had done, he was ineligible for section
212(c) discretionary relief. Id. at 6.
In 2000, though, five weeks before the Board affirmed the
order to remove Zambrano-Reyes, we issued an opinion that
departed from the Attorney General’s view. We held that a
permanent resident who had pled guilty to crimes in reliance
upon the old section 212(c) discretionary relief could not be
barred from that relief. Jideonwo v. I.N.S., 224 F.3d 692, 700 (7th
Cir. 2000). The next year, after Zambrano-Reyes had been
removed and then returned illegally, the Supreme Court
No. 12-2822 5
similarly held that section 212(c) relief was available to
permanent residents who pled guilty to crimes before AEDPA
and IIRIRA that would have disqualified them from such relief
under those new laws. I.N.S. v. St. Cyr, 533 U.S. 289, 326 (2001).
Thus, St. Cyr meant that permanent residents who were
removable on account of certain crimes could still seek discre-
tionary relief if they pled guilty to the relevant crimes before
AEDPA and IIRIRA became effective.
In evaluating such applications for relief in the wake of St.
Cyr, the Board faced a further question. Though the text of the
original section 212(c) applied only as relief from exclusion but
not from deportation, it had been applied to both. Yet exclu-
sion and deportation have separate statutory lists of grounds
for those respective consequences. Compare 8 U.S.C. § 1182(a)
with § 1227(a). The Board needed a way to determine if a
permanent resident subject to deportation on grounds listed in
that statute section could be eligible for relief under the
exclusion statute.
As we explained in the companion criminal case, United
States v. Zambrano-Reyes, No. 12-1524, — F.3d —, 2013 WL
3871002 (7th Cir. July 29, 2013), in 2005 the Board decided that
section 212(c) discretionary relief would be available to a
permanent resident subject to removal only if the statutory
ground of removal with which the permanent resident was
charged comprised a range of offenses that was “substantially
equivalent” to the range of offenses covered by a statutory
ground of exclusion. See In re Blake, 23 I. & N. Dec. 722, 728
(BIA 2005); In re Brieva-Perez, 23 I. & N. Dec. 766, 772-73 (BIA
2005). We affirmed this approach, known as the “comparable
6 No. 12-2822
grounds” rule. See, e.g., Frederick v. Holder, 644 F.3d 357, 363
(7th Cir. 2011); Zamora-Mallari v. Mukasey, 514 F.3d 679, 692-93
(7th Cir. 2008). But in 2011, after the Board had reinstated
Zambrano-Reyes’s removal order and after he had pled guilty
to a new 2011 indictment for unlawful reentry under 8 U.S.C.
§ 1326(a), the Supreme Court rejected the “comparable
grounds” rule as arbitrary and capricious and effectively
overruled those decisions. Judulang v. Holder, 132 S. Ct. 476,
490 (2011).
In sum, only after St. Cyr was it settled that discretionary
relief from removal was available to a permanent resident like
Zambrano-Reyes who had pled guilty to certain criminal
offenses that made him removable prior to AEDPA and
IIRIRA, and only after Judulang was the path to seeking
discretionary relief clear for a permanent resident whose
criminal offenses rendered him removable based on a category
that did not have a “comparable ground” in the list of grounds
for exclusion.
B. Zambrano-Reyes’s Case
In November 1997, immigration authorities issued
Zambrano-Reyes a Notice to Appear for removal proceedings
and charged him as removable for having been convicted of an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). He hired
an attorney to represent him. At his removal hearing on June
23, 1998, the immigration judge determined that Zambrano-
Reyes was removable because of his convictions for sexual
abuse of a minor. The judge also ruled that, in light of the
Attorney General’s Soriano opinion, Zambrano-Reyes was not
eligible for the discretionary relief from removal that would
No. 12-2822 7
have been available to him under section 212(c) prior to
enactment of AEDPA and IIRIRA. Zambrano-Reyes appealed
and the Board affirmed without opinion on September 29,
2000. Zambrano-Reyes did not seek judicial review, and he was
removed to Mexico on November 13, 2000. He returned to the
United States unlawfully sometime in January 2001. And as we
explain below, that unlawful reentry has decisive consequences
here.
Zambrano-Reyes apparently avoided detection for years,
but he was arrested by immigration officers in June 2011. The
Department of Homeland Security reinstated his original
removal order that was affirmed by the Board in 2000. AR
1922. He did not contest his removability. On July 19, 2011, he
was also indicted for illegal reentry in violation of 8 U.S.C. §
1326. Zambrano-Reyes pled guilty to the illegal reentry charge.
After Judulang was decided, and before he was sentenced in
his criminal case, Zambrano-Reyes filed a motion to withdraw
his guilty plea and challenged the legality of the 2000 removal
order. He argued that he was wrongly deprived of the oppor-
tunity to seek discretionary relief under section 212(c) in his
removal proceedings in 1998 because St. Cyr later overruled
the Board and held that such discretionary relief was available
to someone in his position. He also argued that, since his
ground for removability did not have a counterpart in the
statutory grounds for exclusion, he was still barred from
seeking such relief until Judulang rejected the comparable
grounds rule in 2011. He argued that only after Judulang was
the path clear for him to seek discretionary relief. The district
court denied the motion. Zambrano-Reyes appealed, and we
8 No. 12-2822
affirmed. See United States v. Zambrano-Reyes, No. 12-1524,
— F.3d —, 2013 WL 3871002 (7th Cir. July 29, 2013).
On May 14, 2012, Zambrano-Reyes filed a motion with the
Board to reopen his removal proceedings. He argued that his
prior immigration attorney had provided ineffective assistance
by failing to request explicitly a section 212(c) waiver during
his removal proceedings and by failing to advise him that such
relief might be available to him. Alternatively, he urged the
Board to reopen his removal proceedings sua sponte in light of
St. Cyr and Judulang. He also filed an emergency motion to stay
his removal. The Board denied the motion, though, and
Zambrano-Reyes was removed to Mexico on May 22, 2012.
On July 16, 2012 the Board denied the motion to reopen.
The Board found that Zambrano-Reyes’s motion to reopen was
untimely. It was filed more than eleven years after his original
removal order was entered, long past the statutory 90-day
deadline for moving to reopen removal proceedings. See
8 U.S.C. § 1229a(c)(7)(C)(i). The Board declined to apply
equitable tolling to that deadline, which it may do when the
petitioner has exercised due diligence, meaning that a reason-
able person in that position would not have been aware of the
possibility that he or she had suffered an injury and could not
reasonably have been expected to file earlier. App. 4, citing
Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006) (equitable
tolling “requires a showing of due diligence”); Pervaiz v.
Gonzales, 405 F.3d 488, 490 (7th Cir. 2005) (the test for equitable
tolling “is whether the claimant could reasonably have been
expected to have filed earlier”). The Board found that
Zambrano-Reyes did not exercise due diligence and could
No. 12-2822 9
reasonably have been expected to file sooner because he
indicated that he thought at the time of his representation that
his attorney was not satisfactory, and thus he should have
known to move to reopen at that time. In the alternative, the
Board found that Zambrano-Reyes’s attorney was not ineffec-
tive, stating that it could not “conclude that the respondent’s
former attorney acted ineffectively by not advising the respon-
dent to pursue this form of relief.” Id. The Board also declined
to reopen his removal order sua sponte, finding that even with
the changes from St. Cyr and Judulang, Zambrano-Reyes would
not be eligible for reopening or discretionary relief because of
his unlawful reentry into the United States. See 8 U.S.C. §
1231(a)(5); 8 C.F.R. § 1003.44(k)(2). Zambrano-Reyes now
petitions for review of the Board’s denial of his motion to
reopen his removal proceedings.
II. Analysis
A. Jurisdiction
We have jurisdiction to review the Board’s denial of
Zambrano-Reyes’s motion to reopen, though that conclusion
takes a bit of an explanation. To summarize, we have jurisdic-
tion to review a denial of a motion to reopen so long as we
would have jurisdiction to review the underlying order. We
would have jurisdiction over Zambrano-Reyes’s original
removal order because he claims that it involved constitutional
and legal error. Our jurisdiction does not mean, however, that
relief on the merits could be available.
Appellate courts ordinarily have jurisdiction to review the
Board’s denial of a motion to reopen. See Kucana v. Holder,
558 U.S. 233, 248-54 (2010) (courts have jurisdiction over
10 No. 12-2822
motion to reopen where Board’s decision on the motion is
committed to agency discretion by regulation rather than by
statute); see also Tapia-Lemos v. Holder, 696 F.3d 687, 689 (7th
Cir. 2012) (“Denial of a bona fide motion to reopen is reviewable
under 8 U.S.C. § 1252(a).”). But Kucana left open the question
“whether review of a reopening denial would be precluded if
the court would lack jurisdiction over the alien’s underlying
claim for relief.” Kucana, 558 U.S. at 250 n.17. In this circuit, the
default answer is that “we do not have jurisdiction over the
motions to reopen or reconsider if we lack jurisdiction over the
underlying order.” See Cruz-Mayaho v. Holder, 698 F.3d 574, 577
(7th Cir. 2012). Thus, we have jurisdiction to review the Board’s
denial of Zambrano-Reyes’s motion to reopen his removal
order only if we would have jurisdiction to review the Board’s
2000 removal order itself.2
Our jurisdiction extends to Zambrano-Reyes’s original
removal order to the extent that he argues on judicial review
that it involved constitutional or legal error. Section
1252(a)(2)(D) of Title 8 of the U.S. Code provides that “Nothing
in subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates
2
There is an exception to our default rule. Judicial review of procedural
motions “is foreclosed only if the agency’s rationale for denying the
procedural request also establishes the petitioner's inability to prevail on
the merits of his underlying claim.” See Cruz-Mayaho, 698 F.3d at 576–77
(internal quotations omitted), citing Calma v. Holder, 663 F.3d 868, 876 (7th
Cir. 2011). But we held in Moral-Salazar v. Holder, 708 F.3d 957, 961–62 (7th
Cir. 2013), that the Calma exception did not apply where the underlying
order was a removal order that would be barred from review because it was
entered on account of an aggravated felony. Zambrano-Reyes’s was such a
removal order, so the Calma exception does not give us jurisdiction here.
No. 12-2822 11
judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition
for review … .” 8 U.S.C. § 1252(a)(2)(D). This exception applies
to nearly all limits on jurisdiction in the INA, including two
that would otherwise apply to Zambrano-Reyes. First, it
expressly applies to section 1252(a)(2)(C), which would
otherwise bar our review of Zambrano-Reyes’s removal order
because it was on account of an aggravated felony. See
Alvarado-Fonseca v. Holder, 631 F.3d 385, 389 (7th Cir. 2011)
(section 1252(a)(2)(D) allowed jurisdiction to review order
removing alien convicted of committing an aggravated felony
despite section 1252(a)(2)(C)).
Second, section 1252(a)(2)(D) also applies to our jurisdiction
despite 8 U.S.C. § 1231(a)(5), which provides that if an alien
who was removed reenters the United States illegally, as
Zambrano-Reyes did, the order of removal “is not subject to
being reopened or reviewed.” 8 U.S.C. § 1231(a)(5). Section
1252(a)(2)(D) applies to all “other provision[s] of this chapter
(other than this section),” which includes section 1231(a)(5).
8 U.S.C. § 1252(a)(2)(D).3
3
Other circuits have found that section 1252(a)(2)(D) can override section
1231(a)(5) to the extent the latter might otherwise bar appellate jurisdiction.
See, e.g., Villegas de la Paz v. Holder, 640 F.3d 650, 656 (6th Cir. 2010)
(collecting cases and stating on direct review of reinstatement proceedings
that “the circuit courts that have considered the interplay between §
1252(a)(2)(D) and § 1231(a)(5) have held that § 1252(a)(2)(D) re-vests the
circuit courts with jurisdiction over constitutional claims or questions of
law raised in the context of reinstatement proceedings;”) (quotations
omitted). Although these cases addressed jurisdiction to review an
underlying removal order as a challenge to the order’s reinstatement,
(continued...)
12 No. 12-2822
Zambrano-Reyes has raised constitutional and legal claims
in his petition for review of the denial of his motion to reopen.
He argues that he was denied due process in his original
removal proceeding because he received ineffective assistance
of counsel and that the Board erred in determining that his
counsel was not ineffective. Although aliens in immigration
proceedings do not have a Sixth Amendment right to the
effective assistance of counsel, see Pervaiz v. Gonzales, 405 F.3d
488, 489–90 (7th Cir. 2005), they do “have a due-process right
to a fair hearing.” Solis-Chavez v. Holder, 662 F.3d 462, 466 (7th
Cir. 2011), citing Kay v. Ashcroft, 387 F.3d 664, 676 (7th Cir.
2004) (in removal proceedings, “counsel’s ineffectiveness may
rise to the level of a due process violation if the alleged errors
likely affected the outcome of the proceeding”). In holding as
much, we have relied on the Board’s “body of caselaw holding
that an alien’s due-process rights can be violated by his
attorney’s ineffective assistance in removal proceedings.” Solis-
Chavez, 662 F.3d at 466, citing Matter of Lozada, 19 I. & N. Dec.
637, 638 (BIA 1988) (“Ineffective assistance of counsel in a
deportation proceeding is a denial of due process only if the
proceeding was so fundamentally unfair that the alien was
3
(...continued)
section 1252(a)(2)(D)’s broad language should also apply to a motion to
reopen a reinstated order. Some of the circuit cases cited by Villegas de la Paz
endorsed (but did not actually apply) a “gross miscarriage of justice”
exception to section 1231(a)(5). See, e.g., Garcia de Rincon v. Dep't of
Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008). We need not and do not
endorse that standard for the purposes of this opinion. As we explain
below, the potential availability of appellate jurisdiction does not mean that
the Board or other immigration authorities could actually grant the relief
that section 1231(a)(5) bars on the merits.
No. 12-2822 13
prevented from reasonably presenting his case.”), overruling
vacated by Matter of Compean, 25 I. & N. Dec. 1 (BIA 2009).
This is true even though an alien may not have a protected
liberty interest in discretionary relief. “An alien resisting
removal, which would deprive him of his liberty to remain in
the United States, is entitled to due process, which compre-
hends the right to present a defense.” Jezierski v. Mukasey,
543 F.3d 886, 889–90 (7th Cir. 2008) (internal citations omitted)
(also acknowledging that there is no “entitlement to reopen on
the basis of ineffective assistance of counsel,” but finding that
the complexity of an immigration case “in a particular removal
proceeding might be so great that forcing the alien to proceed
without the assistance of a competent lawyer would deny him
due process of law”). But we have declined to find jurisdiction
under section 1252(a)(2)(D) over petitions raising ineffective
assistance of counsel claims where we found that the Board’s
denial of reopening rested on a finding that any ineffectiveness
in counsel did not actually prejudice the petitioner. We have
treated the question of prejudice as factual rather than legal or
constitutional. Jezierski, 543 F.3d at 891 (finding no jurisdiction
because Board’s prejudice determination was factual, not legal,
and petitioner did not allege infringement of constitutional
right).
In this case, the Board determined that Zambrano-Reyes’s
counsel was not ineffective, which is a legal determination. It
required analyzing the relevant controlling law on the retroac-
tivity of AEDPA and IIRIRA at the time of Zambrano-Reyes’s
14 No. 12-2822
removal proceedings, a task requiring legal analysis.4 And to
the extent that the Board also determined that any ineffective
assistance did not prejudice Zambrano-Reyes, that finding
would need to be reconsidered if the Board’s initial legal
determination was erroneous and thus does not defeat our
jurisdiction. See Sanchez v. Keisler, 505 F.3d 641, 647-50 (7th Cir.
2007) (where discretionary determinations rested on Board’s
erroneous initial determination that counsel was not ineffec-
tive, no jurisdictional bar despite Board’s alternate discretion-
ary holdings).
We conclude that our jurisdiction extends to Zambrano-
Reyes’s removal order because he raises a constitutional claim
or legal question with regard to his underlying order of
4
In denying Zambrano-Reyes’s motion to reopen, the Board overlooked a
significant legal development in our circuit shortly before its original
affirmance of his removal order in 2000. The Board wrote in 2012: “At the
time of the respondent’s hearings before the Immigration Judge and during
the pendency of his appeal to this Board, the controlling law indicated that
he was not eligible for a section 212(c) waiver.” App. 4, citing Matter of
Soriano, 21 Op. OLC 1 (Op. Att’y Gen. 1997); Turkham v. Perryman, 188 F.3d
814 (7th Cir. 1999). As noted above, over a month before the Board’s order
affirming Zambrano-Reyes’s order of removal on September 29, 2000, we
held in Jideonwo that “where specific facts demonstrate that an alien pled
guilty to an aggravated felony before the enactment of AEDPA and relied,
at least in part, on the availability of § 212(c) relief in making his decision
to so plead, AEDPA’s § 440(d) cannot be applied retroactively to bar that
alien from receiving a discretionary waiver under INA § 212(c).” 224 F.3d
at 700. As we noted in the companion case, United States v. Zambrano-Reyes,
— F.3d —, No. 12-1524, 2013 WL 3871002, slip op. at 8–9 (7th Cir. July 29,
2013), this would have been a strong argument for a motion to reopen at the
time. But Zambrano-Reyes’s decision to reenter the United States illegally
had the effect of blocking any relief he might have sought on this basis.
No. 12-2822 15
removal. Under Kucana and our default rule, we thus have
jurisdiction to review the Board’s denial of his motion to
reopen that order of removal.5 Because he raises constitutional
and legal claims, our jurisdiction also extends to the Board’s
refusal to reopen Zambrano-Reyes’ removal proceedings sua
sponte. See Anaya-Aguilar v. Holder, 697 F.3d 1189 (7th Cir. 2012)
(bar on review of motions to reopen sua sponte does not apply
where petitioner raises constitutional or legal claims), denying
reh’g of 683 F.3d 369 (7th Cir. 2012). The potential obstacles to
our jurisdiction here do not overcome the “strong presumption
in favor of judicial review of administrative action.” St. Cyr,
533 U.S. at 298 & n.9 (collecting cases).
B. Merits of the Denial of the Motion to Reopen
Although we have jurisdiction, we must deny Zambrano-
Reyes’s petition on the merits. The Board gave three reasons
for denying Zambrano-Reyes’s motion to reopen: first, that he
was not entitled to equitable tolling of the deadline of his
motion to reopen; second, that he did not show that his former
attorney was so ineffective as to impinge on the fundamental
fairness of his proceedings; and third, that his case did not
involve “exceptional circumstances” such that the Board would
5
In Moral-Salazar v. Holder, 708 F.3d 957, 961-62 (7th Cir. 2013), we declined
to extend “Kucana to removal orders where an alien has been convicted of
a crime covered by the jurisdictional bar in subsection (C),” and we
interpreted the phrase “final order of removal” in subsection (C) to
“encompass not only the actual removal order, but all decisions closely
related to the proceeding”). But Moral-Salazar did not reject the application
of section 1252(a)(2)(D)’s exception to subsection (C)’s jurisdictional bar. We
noted that “[n]otwithstanding subsection (C)’s jurisdictional bar, we would
have jurisdiction to review any legal and constitutional issues that Moral
raises,” but found that he had raised none. Id. at 962.
16 No. 12-2822
reopen his proceedings sua sponte. The Board’s reasoning on
the third point is sufficient to deny Zambrano-Reyes’s petition
on all grounds. Because of his unlawful reentry after his
removal, Zambrano-Reyes is simply barred as a matter of law
from the discretionary relief and the reopening of his removal
proceedings that he seeks.
The Board found that, even though St. Cyr and Judulang
cleared two obstacles to Zambrano-Reyes seeking section
212(c) discretionary relief, one obstacle remained that could not
be overcome: his illegal reentry. A regulation establishes
procedures for former permanent residents such as Zambrano-
Reyes, who were subject to removal on account of guilty pleas
to crimes prior to the enactment of AEDPA and IIRIRA, to seek
section 212(c) discretionary relief in light of St. Cyr. 8 C.F.R.
§ 1003.44. Under this regulation, aliens who have been “issued
a final order of deportation or removal who then illegally
returned to the United States” are not eligible to apply for such
relief. 8 C.F.R. § 1003.44(k)(2). In denying Zambrano-Reyes’s
motion to reopen, the Board cited this regulation and con-
cluded that even when the law changed under St. Cyr,
Zambrano-Reyes “was not entitled to reopening of his pro-
ceedings because he had returned to this country illegally.”
That provision of the regulation implements 8 U.S.C. §
1231(a)(5), which provides that a prior order of removal “is not
subject to being reopened or reviewed” if the alien has reen-
tered the United States illegally. See 69 Fed. Reg. 57826-01,
57827 (Sept. 28, 2004) (final rule); 67 Fed. Reg. 52627, 52629
(Aug. 13, 2002) (proposed rule).
We agree with the Board that 8 C.F.R. § 1003.44(k)(2) bars
Zambrano-Reyes from seeking section 212(c) discretionary
No. 12-2822 17
relief because of his illegal reentry, despite the later develop-
ments in St. Cyr and Judulang. In publishing the rule, the
Department of Justice commented that “the decision to
preclude aliens under a deportation or removal order from
obtaining section 212(c) relief is grounded in Congress’s intent
to limit its availability to those not under deportation orders.”
69 Fed. Reg. at 57828. The Sixth Circuit has held that 8 C.F.R.
§ 1003.44(k)(2) barred a permanent resident from seeking
section 212(c) relief where he was subject to a final order of
removal and his reentry into the United States was only for the
purpose of standing trial. See Mansour v. Gonzales, 470 F.3d
1194, 1200 (6th Cir. 2006). Here, there is no question that
Zambrano-Reyes entered the country unlawfully after having
been removed pursuant to a final order of removal. Under 8
C.F.R. § 1003.44(k)(2), even if the Board were to reopen
Zambrano-Reyes’s removal proceedings, the discretionary
relief he seeks would still not be available to him.
The Board correctly stated that Zambrano-Reyes is “not
entitled to reopening of his proceedings because he had
returned to this country illegally.” The Board cited section
1003.44(k)(2) for this proposition. To be precise, the regulation
itself does not expressly state that illegal reentry bars reopening,
but it clearly has that consequence. The statute that the
regulation implements specifically bars review or reopening
after illegal reentry: 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) (emphasis
added).
18 No. 12-2822
Thus, although section 1231(a)(5) does not bar jurisdiction
over Zambrano-Reyes’s petition for judicial review, it shows on
the merits that his removal proceeding cannot be reopened.
Any remand would be futile. The Board could not reopen his
proceeding, and he is ineligible for the relief he seeks. “We
need not remand an immigration case where doing so would
prove futile.” Marin-Garcia v. Holder, 647 F.3d 666, 672 (7th Cir.
2011).
III. Conclusion
Regardless of St. Cyr and Judulang, Zambrano-Reyes is
barred from section 212(c) discretionary relief and his removal
proceedings may not be reopened because of his illegal
reentry. We need not reach his other arguments against the
Board’s decision. The petition is denied.