Ricardo Bravo-Bravo v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO BRAVO-BRAVO, No. 20-71042
Petitioner,
Agency No.
v. A075-265-535
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2022 *
Seattle, Washington
Filed July 18, 2022
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges, and Karen K. Caldwell ** District Judge.
Opinion by Judge Ikuta
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Karen K. Caldwell, United States District Judge
for the Eastern District of Kentucky, sitting by designation.
2 BRAVO-BRAVO V. GARLAND
SUMMARY ***
Immigration
Denying Ricardo Bravo-Bravo’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that: 1) 8 U.S.C. § 1231(a)(5), which generally bars
reopening reinstated orders of removal, is not subject to an
exception for removal orders that result in a gross
miscarriage of justice; and 2) the agency lacks authority to
reopen such reinstated removal orders sua sponte.
Relying on Cuenca v. Barr, 956 F.3d 1079 (9th Cir.
2020), the BIA concluded that the IJ lacked jurisdiction to
reopen Bravo-Bravo’s removal order because the order had
been reinstated under § 1231(a)(5). The panel explained that
an alien may generally not reopen 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 this court will deny a petition to review that denial.
Bravo-Bravo argued that the IJ had jurisdiction over his
motion because an alien may collaterally challenge a
removal order when it results in a gross miscarriage of
justice. The panel concluded that this argument was not
cognizable in the context of this current appeal, explaining
that an alien may raise such a collateral attack, but only in a
petition for review of a reinstatement proceeding or order.
By contrast, as explained in Cuenca, Bravo-Bravo’s motion
to reopen was barred by § 1231(a)(5) such that neither the IJ
nor the BIA had jurisdiction over his collateral challenge.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BRAVO-BRAVO V. GARLAND 3
Second, Bravo-Bravo argued that, because the IJ had
authority under a former 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), the IJ retained such
authority notwithstanding § 1231(a)(5). The panel
disagreed, explaining that Cuenca read § 1231(a)(5) to
unambiguously bar reopening a reinstated removal order and
to divest the BIA of jurisdiction to reopen a removal
proceeding after reinstatement. The panel further explained
that, although the then-applicable regulation gave the agency
the authority to reopen cases sua sponte, that regulation did
not expressly provide that such authority overrode
§ 1231(a)(5). Nor could it, the panel observed, given that a
regulation does not trump an otherwise applicable statute
unless the regulation’s enabling statute so provides.
COUNSEL
Sylvia L. Esparza, Las Vegas, Nevada, for Petitioner.
Brian Boynton, Acting Assistant Attorney General; Claire L.
Workman, Senior Litigation Counsel; Edward C. Durant,
Attorney; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
4 BRAVO-BRAVO V. GARLAND
OPINION
IKUTA, Circuit Judge:
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.
§ 1229a(c)(7). 1 An alien may also ask the IJ or BIA to
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).
BRAVO-BRAVO V. GARLAND 5
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. § 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
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).
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.
6 BRAVO-BRAVO V. GARLAND
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 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
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).
BRAVO-BRAVO V. GARLAND 7
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 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 the reinstated prior
removal order or proceeding, because the BIA must deny a
motion to reopen for lack of jurisdiction under § 1231(a)(5),
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).
8 BRAVO-BRAVO V. GARLAND
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.
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
BRAVO-BRAVO V. GARLAND 9
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 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
10 BRAVO-BRAVO V. GARLAND
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 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-
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.
BRAVO-BRAVO V. GARLAND 11
Bravo argues that his initial removal order was unjust. But
this 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.
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 former 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
12 BRAVO-BRAVO V. GARLAND
argues, the IJ retained such authority in his case
notwithstanding the statutory bar in § 1231(a)(5). 7
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 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
7
We note that for proceedings that take place after January 15, 2021,
the IJ and BIA no longer have the authority to reopen proceedings sua
sponte to address substantive issues.
BRAVO-BRAVO V. GARLAND 13
override that command.” Rodriguez-Saragosa v. Sessions,
904 F.3d 349, 355 (5th Cir. 2018). 8
PETITION DENIED.
8
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.