Salvador Tapia-Lemos v. Eric Holder, Jr. , 696 F.3d 687 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2721
S ALVADOR T APIA-L EMOS,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Department of Homeland Security
S UBMITTED A UGUST 17, 2012—D ECIDED A UGUST 31, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER and
R OVNER, Circuit Judges.
E ASTERBROOK, Chief Judge. Salvador Tapia-Lemos
entered the United States illegally in 1992. He was
removed to Mexico in 1997 following his convictions
for obstruction of justice and failing to report an
accident (that is, being a hit-and-run driver). Tapia did
not contest the allegation that he was removable on
account of convictions for aggravated felonies—not to
2 No. 11-2721
mention the fact that he never had a colorable claim of
entitlement to be in the United States. Nor did he seek
judicial review of the 1997 removal order. But he did
reenter this nation, again illegally (he crossed the border
by stealth), was caught, was removed again, and came
back a third time by stealth, just as illegally as before.
In 2010 the Department of Homeland Security reinstated
the 1997 removal order. See 8 U.S.C. §§ 1228(b), 1231(a)(5).
This time Tapia sought judicial review. He contended
that the 1997 order is invalid because he did not receive
proper notice of his right to counsel and because his
convictions do not meet the statutory definition of ag-
gravated felonies. Although the reinstatement of a
removal order can be reviewed on the same terms as a
newly issued order, we dismissed Tapia’s petition
because it was filed more than 30 days after the order
of reinstatement. Tapia Lemos v. Holder, 636 F.3d 365
(7th Cir. 2011). He also asked us to review the agency’s
denial of a motion to stay removal; we held that a
court does not have jurisdiction to review the agency’s
decision to execute a removal order. Id. at 367; see also
8 U.S.C. §1252(g).
After we held that Tapia’s delay put the reinstatement
decision beyond review, he asked the agency to “reopen”
its decision. The agency summarily rejected that re-
quest with the observation that it duplicated the motion
for a stay. Tapia then filed another petition for judicial
review. This, too, must be dismissed for lack of jurisdiction.
Denial of a bona fide motion to reopen is reviewable
under 8 U.S.C. §1252(a). See Kucana v. Holder, 130 S. Ct. 827
No. 11-2721 3
(2010). But, as we observed last year, the time to file a
motion to reopen the removal decision expired in 1997.
See 8 U.S.C. §1229a(c)(7)(C)(i) (motions to reopen must
be filed within 90 days of the final removal decision).
The motion Tapia filed in May 2011 did not request an
immigration judge or the Board of Immigration Appeals
to reopen the removal decision; it asked immigration
officials not to execute the 1997 order. We have already
held that such a request is not subject to judicial re-
view. Changing the caption on the document from “motion
for stay” to “motion to reopen” does not create a right of
judicial review. The sort of motion to reopen to which
§1229a(c)(7)(C)(i) and Kucana speak is one seeking re-
opening of a decision under §1229a itself—and an
order reinstating a prior removal order is entered under
§1228(b) and §1231(a)(5), not §1229a. Even if all of this
were wrong, and the order of November 1, 2010, rein-
stating the 1997 order were treated as a new removal
order for all purposes, that would have set the deadline
for reopening at the end of January 2011, long before
Tapia filed this “motion to reopen.”
Tapia does not rely on §1229a. Instead he points to
8 C.F.R. §103.5(a), a procedural regulation applicable
to administrative decisions in the removal process. This
permits reopening of any decision not made by an IJ or
the BIA, Tapia maintains. Yet §1231(a)(5) itself provides
that a reinstated order “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.” A regulation cannot countermand a statute, so
4 No. 11-2721
§103.5(a) does not apply to decisions that reinstate
removal orders. The only thing that a court of appeals
could review would be the original removal order—and,
to repeat what we held last year, that review must be
sought within 30 days of the order’s reinstatement.
Tapia missed the deadline.
He contends that the Chenery doctrine—see SEC v.
Chenery Corp., 318 U.S. 80, 88–89 (1943); SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947)—bars the agency from
asking us to dismiss the current petition. The agency’s
decision denying the May 2011 “motion to reopen” says:
“As the May 20, 2011 request is identical to the Decem-
ber 9, 2010 request [the motion for a stay], no action
will be taken on this request.” This means, Tapia
insists, that the agency has forfeited its opportunity to
deny that the document filed in May 2011 is a real
motion to reopen, and the court therefore must address
the motion on its merits.
What an agency does or does not say in response to
a motion cannot affect our jurisdiction. Reinstated
removal orders are not subject to “reopening,” and it
does not matter what caption an alien puts on a docu-
ment asking the agency to reconsider the reinstatement.
The agency could not confer subject-matter jurisdiction
on this court by an explicit waiver of the rule that a
petition for review must be filed within 30 days of the
initial agency decision; true jurisdictional rules are not
subject to waiver or forfeiture, and Stone v. INS,
514 U.S. 386 (1995), holds that the time limit for
seeking judicial review of a removal order is a true limit
on subject-matter jurisdiction.
No. 11-2721 5
Tapia wants us to treat §1231(a)(5) as forbidding re-
opening only of the original removal order, and not of
the order reinstating it. The statutory language could
be read as Tapia proposes only at the expense of draining
it of meaning—for the passage of time already forbids
reopening of the original removal order. (Recall that,
per §1229a(c)(7)(C)(i), the deadline is 90 days from
the final order of removal.) Unless §1231(a)(5) blocks re-
opening of the decision to reinstate, the prohibition
serves no function. Section 1231(a)(5) is designed to
expedite re-removal of a person who returns without
permission after being removed. See Ponta-Garcia v.
Attorney General, 557 F.3d 158, 162 (3d Cir. 2009); Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 491, 494 (9th Cir. 2007);
De Sandoval v. Attorney General, 440 F.3d 1276, 1283
(11th Cir. 2006). On Tapia’s understanding, however,
the process for reinstatement and re-removal would be
as protracted as the process for contesting an initial
removal decision. That would not be a sensible way to
read the no-reopening language in §1231(a)(5).
Tapia should deem himself fortunate that the United
States has not commenced a criminal prosecution in
response to his multiple illegal entries. His avenues
of judicial review of the removal order, and the reinstate-
ment decision, are closed by the passage of time, and
no new filings, no matter what captions they bear, can
extend a jurisdictional time limit.
The petition for review is dismissed for want of juris-
diction.
8-31-12