Jose Gutierrez-Zavala v. Merrick Garland ( 2022 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOSE MANUEL GUTIERREZ-ZAVALA,                      No. 20-73398
    Petitioner,
    Agency No.
    v.                           A090-155-378
    MERRICK B. GARLAND, Attorney
    General,                                             OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted February 14, 2022 *
    Pasadena, California
    Filed April 26, 2022
    Before: Daniel A. Bress and Patrick J. Bumatay, Circuit
    Judges, and Sharon L. Gleason, ** District Judge.
    Opinion by Judge Bress
    *
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    **
    The Honorable Sharon L. Gleason, Chief United States District
    Judge for the District of Alaska, sitting by designation.
    2              GUTIERREZ-ZAVALA V. GARLAND
    SUMMARY ***
    Immigration
    Denying Jose Gutierrez-Zavala’s petition for review of a
    decision of the Board of Immigration Appeals denying a
    motion to reopen, the panel held that this court may deny a
    petition for review based on the BIA’s lack of jurisdiction
    under 
    8 U.S.C. § 1231
    (a)(5), even when the BIA did not rule
    on that basis.
    Gutierrez-Zavala was removed in 2003 and reentered
    illegally. His removal order was later reinstated under
    
    8 U.S.C. § 1231
    (a)(5), which provides that “[i]f the Attorney
    General finds that an alien has reentered the United States
    illegally after having been removed . . . [and] the prior order
    of removal is reinstated from its original date,” that prior
    order “is not subject to being reopened or reviewed.”
    Gutierrez-Zavala then filed an untimely motion to reopen his
    removal proceedings. The BIA took administrative notice
    of the removal order, but concluded that it had jurisdiction
    and denied the motion on the merits.
    The panel granted the government’s motion for judicial
    notice of the form reinstating Gutierrez-Zavala’s removal
    order, explaining that the court may take judicial notice
    where, as here, the BIA considered the evidence. The panel
    also explained that this court has held that 
    8 U.S.C. § 1231
    (a)(2) unambiguously bars reopening a reinstated
    prior removal order.
    ***
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    GUTIERREZ-ZAVALA V. GARLAND                    3
    The panel held that it could deny Gutierrez-Zavala’s
    petition under 
    8 U.S.C. § 1231
    (a)(2), even though the BIA
    did not rely on that jurisdictional bar. The panel observed
    that under the Chenery doctrine, the court’s review is
    typically limited to the grounds upon which the agency
    relied and that, where the agency offers a different
    justification in this court, the court should generally remand
    to the agency. However, the panel concluded that the
    considerations underlying the Chenery doctrine did not
    apply because the BIA was required to deny Gutierrez-
    Zavala’s motion for lack of jurisdiction. The panel observed
    that the Supreme Court has explained that the Chenery
    doctrine has no application where the agency was required
    to reach a necessary result and that Chenery does not require
    that the court convert judicial review of agency action into a
    ping-pong game. Thus, the panel concluded that it need not
    remand for the agency to reach the same conclusion on the
    BIA’s jurisdiction because to do so would be an idle and
    useless formality. The panel also noted that denying the
    petition on this ground was consistent with this court’s
    precedents, including in the immigration context.
    4            GUTIERREZ-ZAVALA V. GARLAND
    COUNSEL
    Douglas Jalaie, Los Angeles, California, for Petitioner.
    Justin R. Markel and Paul Fiorino, Senior Litigation
    Counsel; Brian Boynton, Acting Assistant Attorney General;
    Office of Immigration Litigation, Civil Division, United
    States Department of Justice, Washington, D.C.; for
    Respondent.
    OPINION
    BRESS, Circuit Judge:
    Jose Gutierrez-Zavala, a native and citizen of Mexico,
    seeks review of a Board of Immigration Appeals (BIA)
    decision denying his untimely motion to reopen his removal
    proceedings. Although the BIA denied relief on the merits,
    the BIA lacked jurisdiction to consider Gutierrez-Zavala’s
    motion to reopen because he was subject to a reinstated prior
    removal order. See 
    8 U.S.C. § 1231
    (a)(5); Cuenca v. Barr,
    
    956 F.3d 1079
    , 1084 (9th Cir. 2020). We hold here that we
    can deny Gutierrez-Zavala’s petition for review based on the
    BIA’s lack of jurisdiction, even though the BIA did not rule
    on that basis. We therefore deny the petition for review.
    On December 29, 1988, Gutierrez-Zavala was admitted
    to the United States as a lawful permanent resident. In
    January 1998, he was convicted of burglary in the second
    degree in California state court, 
    Cal. Penal Code §§ 459
    ,
    460(b), and sentenced to 16 months in prison. In August
    1998, the former Immigration and Naturalization Service
    (INS) served Gutierrez-Zavala with a Notice to Appear,
    charging him with removability as an alien who, after
    GUTIERREZ-ZAVALA V. GARLAND                      5
    admission, had been convicted of an aggravated felony. See
    
    8 U.S.C. § 1227
    (a)(2)(A)(iii). Gutierrez-Zavala admitted
    the factual allegations against him, and an Immigration
    Judge (IJ) ordered Gutierrez-Zavala removed to Mexico.
    After his lawyer failed to file a brief in support of his appeal
    to the BIA, Gutierrez-Zavala was removed to Mexico in May
    2003.
    Later that year, Gutierrez-Zavala illegally reentered the
    United States. In September 2019, the Department of
    Homeland Security (DHS) detained Gutierrez-Zavala and
    reinstated his prior removal order. See 
    8 U.S.C. § 1231
    (a)(5)
    (providing for the reinstatement of prior removal orders for
    non-citizens who reenter the United States illegally); Lopez
    v. Garland, 
    17 F.4th 1232
    , 1234 (9th Cir. 2021) (describing
    requirements for reinstatement of a prior removal order).
    In January 2020, nearly 20 years after Gutierrez-Zavala
    was ordered removed to Mexico, he filed an untimely motion
    to reopen and terminate his removal proceedings. See
    8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R § 1003.2(c)(2).
    Subject to certain exceptions, a motion to reopen must be
    filed within 90 days of the removal order. 8 U.S.C.
    § 1229a(c)(7)(A), (C); 8 C.F.R § 1003.2(c)(2). Gutierrez-
    Zavala acknowledged that his motion to reopen was
    untimely but argued that the deadline should be tolled and
    his motion deemed timely. Specifically, Gutierrez-Zavala
    argued for tolling because his prior counsel provided
    ineffective assistance by failing to file a brief in support of
    his appeal to the BIA challenging his removal order.
    Gutierrez-Zavala also sought tolling on the ground that he
    was allegedly no longer removable based on his burglary
    conviction, relying on the Supreme Court’s intervening
    decision in Descamps v. United States, 
    570 U.S. 254
     (2013).
    6              GUTIERREZ-ZAVALA V. GARLAND
    Gutierrez-Zavala further maintained that the BIA should
    reopen his removal proceedings sua sponte.
    In its decision on the motion to reopen, the BIA took
    administrative notice of the fact that Gutierrez-Zavala was
    subject to a reinstated order of removal. But citing our
    decision in Morales-Izquierdo v. Gonzales, 
    486 F.3d 484
    ,
    497–98 (9th Cir. 2007), the BIA concluded that it had
    jurisdiction to consider Gutierrez-Zavala’s motion to reopen
    notwithstanding the reinstatement of his removal order. The
    BIA therefore proceeded to the merits and denied Gutierrez-
    Zavala’s motion to reopen after concluding that he had not
    exercised due diligence in pursuing relief and that sua sponte
    reopening was not justified.         Gutierrez-Zavala then
    petitioned for review in our court.
    We have jurisdiction under 
    8 U.S.C. § 1252
     and review
    the BIA’s denial of a motion to reopen for abuse of
    discretion. Agonafer v. Sessions, 
    859 F.3d 1198
    , 1203 (9th
    Cir. 2017). The government requests that we take judicial
    notice of the Form I-871 reinstating Gutierrez-Zavala’s
    removal order. We may take judicial notice of out-of-record
    evidence where, among other situations, “the Board
    considers the evidence.” Fisher v. INS, 
    79 F.3d 955
    , 964
    (9th Cir. 1996) (en banc). Here the BIA’s decision expressly
    noted the fact of the reinstatement order. We therefore grant
    the government’s motion for judicial notice. 1
    1
    We reject as unsupported Gutierrez-Zavala’s assertion that neither
    he nor his counsel were served with the reinstatement order. Gutierrez-
    Zavala signed an acknowledgement on the Form I-871 reinstating the
    prior removal order. And he otherwise identifies no evidence suggesting
    that he did not receive the reinstated removal order or that he was
    unaware of it.
    GUTIERREZ-ZAVALA V. GARLAND                    7
    Although the BIA recognized that Gutierrez-Zavala was
    subject to a reinstated removal order, it denied his motion to
    reopen on the merits. We have held, however, that the BIA
    lacks jurisdiction to “reopen[] a removal order that has been
    reinstated following an alien’s unlawful reentry into the
    United States.” Cuenca, 956 F.3d at 1088. Under 
    8 U.S.C. § 1231
    (a)(5), “[i]f the Attorney General finds that an alien
    has reentered the United States illegally after having been
    removed . . . [and] the prior order of removal is reinstated
    from its original date,” that prior order “is not subject to
    being reopened or reviewed.” 
    8 U.S.C. § 1231
    (a)(5)
    (emphasis added). That provision, we held, “unambiguously
    bar[s] reopening a reinstated prior removal order.” Cuenca,
    956 F.3d at 1084. Although 8 U.S.C. § 1229a(c)(7)
    generally provides non-citizens the right to file motions to
    reopen, the non-citizen “forfeits that right by reentering the
    country illegally. That is the clear import of the statute’s
    unambiguous text.” Id. at 1085 (quoting Rodriguez-
    Saragosa v. Sessions, 
    904 F.3d 349
    , 354 (5th Cir. 2018)).
    The BIA did not discuss our decision in Cuenca, in
    which we issued an amended opinion only several months
    before the BIA ruled in this case. Instead, in determining
    that it had jurisdiction to consider Gutierrez-Zavala’s motion
    to reopen, the BIA cited our earlier decision in Morales-
    Izquierdo. But in Cuenca, we explained that Morales-
    Izquierdo did not govern the question of whether a petitioner
    subject to a reinstated removal order could seek to reopen his
    removal proceedings under § 1229a(c)(7). See Cuenca,
    956 F.3d at 1085–88 (explaining, inter alia, that Morales-
    Izquierdo “came to this Court as a petition for review of a
    reinstatement order itself, not from the denial of a motion to
    reopen,” and that the petitioner there was subject to special
    rules governing in absentia orders). Although it is not clear
    if the BIA in this case was aware of Cuenca, that decision
    8            GUTIERREZ-ZAVALA V. GARLAND
    conclusively explains why the BIA’s reliance on Morales-
    Izquierdo was in error. Thus, under Cuenca, § 1231(a)(5)
    “institute[es] a permanent jurisdictional bar” on the BIA’s
    ability to entertain a motion to reopen a reinstated removal
    order. 956 F.3d at 1084.
    The BIA, as we have noted, did not base its denial of
    Gutierrez-Zavala’s motion to reopen on § 1231(a)(5)’s
    jurisdictional bar. And we recognize that, under the
    venerable Chenery doctrine, our review is typically “limited
    to ‘[t]he grounds upon which . . . the record discloses that
    [the agency’s] action was based.’” Hernandez-Cruz v.
    Holder, 
    651 F.3d 1094
    , 1109 (9th Cir. 2011) (alterations in
    original) (quoting SEC v. Chenery Corp., 
    318 U.S. 80
    , 87
    (1943)).      Under Chenery, “[w]e will not uphold a
    discretionary agency decision where the agency has offered
    a justification in court different from what it provided in its
    opinion.” Morgan Stanley Cap. Grp. Inc. v. Pub. Util. Dist.
    No. 1, 
    554 U.S. 527
    , 544 (2008) (citing Chenery, 
    318 U.S. at
    94–95). Instead, “[g]enerally speaking, a court of appeals
    should remand a case to an agency for decision of a matter
    that statutes place primarily in agency hands.” INS v.
    Orlando Ventura, 
    537 U.S. 12
    , 16 (2002).
    But because the BIA was required to deny Gutierrez-
    Zavala’s motion to reopen for lack of jurisdiction, these
    same considerations do not apply. As the Supreme Court
    has explained, “[t]he Chenery doctrine has no application”
    where the agency “was required” to reach a “necessary
    result.” Morgan Stanley, 
    554 U.S. at
    544–45. Put another
    way, there is an “‘exception’ to Chenery . . . based upon
    subjective certainty . . . with respect to the outcome of the
    agency decision upon remand.” Arnold v. Morton, 
    529 F.2d 1101
    , 1105 (9th Cir. 1976).
    GUTIERREZ-ZAVALA V. GARLAND                     9
    The necessary and certain result of § 1231(a)(5)’s bar
    and our decision in Cuenca is the denial of Gutierrez-
    Zavala’s motion to reopen for the BIA’s lack of jurisdiction.
    See Cuenca, 956 F.3d at 1084, 1088. It follows that where
    we review the denial of a motion to reopen that the BIA did
    not have jurisdiction to consider, we need not remand for the
    agency to reach that same conclusion because to do so
    “would be an idle and useless formality.” NLRB v. Wyman-
    Gordon Co., 
    394 U.S. 759
    , 766 n.6 (1969) (plurality
    opinion). As the Supreme Court has long instructed,
    “Chenery does not require that we convert judicial review of
    agency action into a ping-pong game.” 
    Id.
    Denying Gutierrez-Zavala’s petition on this ground is
    consistent with our precedents, including in the immigration
    context. In Safaryan v. Barr, 
    975 F.3d 976
    , 979 (9th Cir.
    2020), for example, we considered whether a published BIA
    decision holding that a violation of California Penal Code
    § 245(a)(1) is a crime involving moral turpitude was entitled
    to Chevron deference. The precedential decision at issue,
    Matter of Wu, 
    27 I. & N. Dec. 8
     (B.I.A. 2017), was published
    while Safaryan’s petition for review was pending in our
    court. 
    Id. at 983
    . In Safaryan, the parties “briefed the matter
    on the premise that, if we determine that Matter of Wu is
    entitled to Chevron deference, then Matter of Wu governs
    this case and renders Safaryan inadmissible.” 
    Id.
     We held
    that the interpretation in Matter of Wu was entitled to
    Chevron deference. See 
    id.
     But rather than remand for the
    BIA to consider Safaryan’s arguments in light of Matter of
    Wu, we saw “no need to pointlessly remand the matter to the
    BIA so that it can formally invoke Matter of Wu in this case.”
    
    Id.
     (citing Morgan Stanley, 
    554 U.S. at 545
    ).
    Similarly, in Singh v. Barr, 
    935 F.3d 822
    , 827 (9th Cir.
    2019) (per curiam), we did not remand even though the BIA
    10           GUTIERREZ-ZAVALA V. GARLAND
    incorrectly applied the nexus standard applicable to Singh’s
    request for withholding of removal. Specifically, the BIA
    applied the “one central reason” standard for both his asylum
    and withholding claims. 
    Id.
     Under our precedents, an
    applicant for withholding of removal must show that a
    protected ground was merely “a reason” for persecution. 
    Id.
    (citing Barajas-Romero v. Lynch, 
    846 F.3d 351
    , 360 (9th
    Cir. 2017)). We declined to remand, however, “[b]ecause
    the BIA adopted the IJ’s finding of no nexus between the
    harm to Singh and the alleged protected ground,” and thus to
    “remand to the BIA ‘would be an idle and useless
    formality.’” 
    Id.
     (quoting Wyman-Gordon, 
    394 U.S. at
    766
    n.6). Here too, that the BIA “provided a different rationale
    for the necessary result is no cause for upsetting its ruling.”
    Morgan Stanley, 
    554 U.S. at 545
    .
    When the BIA denies a motion to reopen a reinstated
    removal order on grounds other than a lack of jurisdiction,
    we may deny a petition challenging that ruling based on the
    BIA’s lack of jurisdiction under 
    8 U.S.C. § 1231
    (a)(5).
    Accordingly, the petition is
    DENIED.