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Alfonso Padilla CUENCA, Petitioner, v. William P. BARR, Attorney General, Respondent.
Generally, when an alien is ordered removed from the United States, he may move to reopen his removal proceeding within 90 days of entry of the final removal order based on new, material facts that could not have been discovered or presented at the original removal hearing. 8 U.S.C. § 1229a(c)(7). “The motion to reopen is an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Kucana v. Holder, 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (quoting Dada v. Mukasey, 554 U.S. 1, 18, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008)). If, however, an alien who has been removed pursuant to a removal order takes matters into his own hands and unlawfully reenters the United States, another provision of the Immigration and Nationality Act (“INA”) empowers an immigration officer to reinstate the prior removal order, at which point it “is not subject to being reopened[.]” 8 U.S.C. § 1231(a)(5). The question presented in this case is whether § 1231(a)(5) permanently bars reopening under § 1229a(c)(7), or whether the bar applies only during the reinstatement process. We conclude that an alien whose removal order is reinstated pursuant to § 1231(a)(5) may not reopen the prior removal proceeding under § 1229a(c)(7). The bar is a consequence of having reentered unlawfully.
Petitioner Alfonso Padilla Cuenca (“Padilla”) is a native Mexican citizen who arrived in the United States on December 1, 1997, without being admitted or paroled. The Department of Homeland Security (“DHS”) initiated removal proceedings against Padilla on August 25, 2008. Padilla appeared without counsel in the Immigration Court in Eloy, Arizona on September 15, 2008. There, an Immigration Judge (“IJ”) advised Padilla of his right to counsel, but Padilla waived that right, admitted the allegations against him, conceded removability, and waived his right to apply for relief. By order of the IJ, Padilla was physically removed to Mexico on November 28, 2008, but he unlawfully reentered the United States the following month.
DHS apprehended Padilla in 2015 and proceeded to reinstate his prior removal order, a multistep process that first requires an immigration officer to obtain the prior removal order related to the alien, confirm that the alien under consideration and the alien previously removed are one and the same, and confirm that the alien unlawfully reentered the United States. If the immigration officer determines that an alien qualifies for reinstatement, the officer then must give the alien written notice of his determination and provide the alien with an opportunity to make a statement contesting it. If these requirements are met, the alien’s prior removal order is reinstated, and he may again be removed. 8 C.F.R. § 241.8(a)–(c).
Here, DHS served Padilla with a Form I-871 Notice of Intent/Decision to Reinstate Prior Order (“Notice”) on May 13, 2015. The Notice charged that Padilla is removable as an alien who unlawfully reentered the United States after previously being removed. Padilla signed and fingerprinted the Notice and indicated that he did not wish to make a statement contesting DHS’s determination. Consequently, DHS reinstated Padilla’s 2008 removal order.
DHS has not executed the reinstated removal order, however, because it determined that Padilla established a reasonable fear that he will be persecuted and tortured due to his mental illness if removed to Mexico. Padilla has a history of mental health problems, and formally was diagnosed with Schizoaffective Disorder, Depressive Type in October 2015. Under agency regulations, if an alien asserts a fear of returning to the country designated in his reinstated removal order, he is referred to an asylum officer who must then determine whether the alien has a reasonable fear of persecution or torture. 8 C.F.R. § 241.8(e). If the officer finds the alien’s fear to be reasonable, the case is referred to an IJ “for full consideration of the request for withholding of removal only.” 8 C.F.R. § 208.31(e). DHS accordingly referred Padilla to the Immigration Court in San Francisco, California for withholding of removal proceedings, where an IJ determined that Padilla is mentally incompetent to represent himself and ordered appointment of counsel. This withholding of removal proceeding remains pending, and Padilla cannot be removed to Mexico until it concludes.
Aided by counsel, Padilla filed a motion to reopen his 2008 removal proceeding pursuant to § 1229a(c)(7) on November 2, 2015. Padilla argued that the 90-day deadline for filing a motion to reopen should be equitably tolled, the IJ should reopen his 2008 removal proceeding sua sponte,1 reopening his 2008 removal proceeding is an appropriate safeguard to protect his due process rights, and he is prima facie eligible for asylum. At bottom, Padilla contends that his 2008 removal proceeding violated his due process rights because he was not competent to represent himself. Therefore, the IJ should not have accepted his admission of removability and instead should have appointed him counsel.2 Padilla seeks to reopen his 2008 removal proceeding in order to apply for asylum, which offers broader protection than withholding of removal.
The IJ denied Padilla’s motion, finding principally that § 1231(a)(5) divested the IJ of jurisdiction to reopen the 2008 removal proceeding because DHS reinstated Padilla’s removal order. Alternatively, the IJ addressed the merits of Padilla’s motion to reopen and, for reasons not relevant here, concluded that the motion was untimely and equitable tolling unavailable, Padilla was not prima facie eligible for asylum, and exceptional circumstances did not warrant reopening Padilla’s 2008 removal proceeding sua sponte.
Padilla appealed the IJ’s decision to the BIA. Along with re-arguing the merits of his motion to reopen, Padilla argued that the IJ erred in his jurisdictional analysis because § 1231(a)(5) bars reopening only during the reinstatement process, and Padilla now is in a separate withholding of removal proceeding. The BIA agreed with the IJ, however, that § 1231(a)(5) barred reopening Padilla’s 2008 removal proceeding because DHS reinstated Padilla’s removal order. It therefore denied as moot Padilla’s requests for equitable tolling and sua sponte reopening and dismissed his appeal.
Padilla timely petitioned this Court for review of the BIA’s decision. He again argues that § 1231(a)(5) bars reopening only during the reinstatement process itself, and that the BIA should not have dismissed his appeal because he now is in a separate withholding of removal proceeding.
II. Jurisdiction and Standard of Review
We have jurisdiction to review the BIA’s dismissal order pursuant to 8 U.S.C. § 1252. Although we review the BIA’s denial of a motion to reopen for an abuse of discretion, purely legal questions receive de novo review. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). Whether § 1231(a)(5) permanently bars reopening under § 1229a(c)(7) is a question of law that we review de novo.
“[T]he starting point for interpreting a statute is the language of the statute itself.” Olympic Forest Coal. v. Coast Seafoods Co., 884 F.3d 901, 905 (9th Cir. 2018) (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)). Section 1231(a)(5) states:
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 be 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.
We read this language to unambiguously bar reopening a reinstated prior removal order. The Fifth and Seventh Circuits likewise have concluded that § 1231(a)(5) permanently bars reopening. See Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 354 (5th Cir. 2018) (noting that the “unambiguous text” of § 1231(a)(5) “deprive[s] the BIA of authority to reopen” removal proceedings after the removal order has been reinstated); Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013) (“[Section] 1231(a)(5) bars reopening of a removal order that has been reinstated after the alien’s illegal return to the United States.”). And in unpublished decisions this Court repeatedly has interpreted § 1231(a)(5) as divesting the BIA of jurisdiction to reopen a removal proceeding after reinstatement of the underlying removal order. See, e.g., Monroy-Martinez v. Whitaker, 749 F. App'x 578, 579 (9th Cir. 2019); Rodarte-Gonzalez v. Sessions, 736 F. App'x 708, 709 (9th Cir. 2018); Cobos-Luna v. Boente, 678 F. App'x 498, 499 (9th Cir. 2017); Escobedo-Fernandez v. Holder, 504 F. App'x 568, 568 (9th Cir. 2013).
This plain reading of § 1231(a)(5) as instituting a permanent jurisdictional bar also comports with the statute’s “clear Congressional purpose[.]” Rodriguez-Saragosa, 904 F.3d at 354. Reinstatement once applied only to “a limited class of illegal reentrants,” and “the rest got the benefit of the ordinary deportation rules.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33–34, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). In 1996, however, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which replaced the old reinstatement provision “with one that toed a harder line[.]” Id. at 34, 126 S.Ct. 2422. The revisions applied reinstatement to all illegal reentrants, “expanded the types of orders that can be reinstated and limited the relief available to aliens whose orders are reinstated.” Padilla v. Ashcroft, 334 F.3d 921, 924 (9th Cir. 2003). Section 1231(a)(5) establishes a process to expeditiously remove an alien who already is subject to a removal order, thereby denying the alien “any benefits from his latest violation of U.S. law[.]” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir. 2007) (en banc). “The text of the statute does not allow room for avoiding this clear purpose.” Cordova-Soto, 732 F.3d at 794.
Padilla, however, contends that a strict reading of § 1231(a)(5) would create a conflict with § 1229a(c)(7) by eviscerating an alien’s right to file a motion to reopen. We disagree. As the Fifth Circuit explained, § 1229a(c)(7) “provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings,” and § 1231(a)(5) “provides that an alien forfeits that right by reentering the country illegally. That is the clear import of the statute’s unambiguous text.” Rodriguez-Saragosa, 904 F.3d at 354 (quoting Dada, 554 U.S. at 4–5, 128 S.Ct. 2307) (emphasis in original).
Padilla’s principal argument against a plain reading of § 1231(a)(5) is that our decisions in Morales-Izquierdo and Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018), imposed a temporal limit on the bar to reopening. For example, Padilla highlights language from Morales-Izquierdo that reinstatement “creates no new obstacles to attacking the validity of the removal order,” and that § 1231(a)(5) precludes reopening or review of the prior removal order “during the course of the reinstatement process.” 486 F.3d at 498. He also points to language in Miller that “an individual placed in reinstatement proceedings under § 1231(a)(5) cannot as a general rule challenge the validity of the prior removal order in the reinstatement proceeding itself.” 889 F.3d at 1002. According to Padilla, these decisions imply that § 1231(a)(5) bars reopening only during the time an immigration officer spends complying with § 241.8’s prerequisites to reinstatement, but once the prior removal order has been reinstated the bar to reopening is lifted. Padilla argues that, at the very least, § 1231(a)(5) does not bar reopening a prior removal order once an alien is placed into withholding of removal proceedings.
This latter argument is foreclosed by our decision in Padilla-Ramirez v. Bible, in which we explained that “[w]ithholding-only proceedings do not ․ purport to override section 1231(a)(5)’s prohibition on reopening or reviewing a prior removal order.” 882 F.3d 826, 832 (9th Cir. 2017). And although Morales-Izquierdo and Miller each contain language favorable to Padilla’s broader argument when read in isolation, the specific factual and procedural contexts of these decisions are materially distinguishable from Padilla’s case.
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. 486 F.3d at 489. The petitioner, Morales, had unlawfully entered the United States in 1994 and subsequently was ordered removed in absentia. Id. at 488. Morales claimed, however, that he never received notice of the hearing date. Id. He later unlawfully reentered the United States and his prior removal order was reinstated. Id. at 489. Morales raised numerous challenges to the reinstatement order and process. Of relevance here, he argued “that a removal order may not constitutionally be reinstated if the underlying removal proceeding itself violated due process,” and that his underlying removal proceeding violated due process because it was conducted in absentia without notice to him. Id. at 495–97. We rejected this argument and held that “[r]einstatement of a prior removal order—regardless of the process afforded in the underlying order—does not offend due process because reinstatement of a prior order does not change the alien’s rights or remedies.” Id. at 497. We explained:
The only effect of the reinstatement order is to cause Morales’ removal, thus denying him any benefits from his latest violation of U.S. law, committed when he reentered the United States without the Attorney General’s permission ․ The reinstatement order imposes no civil or criminal penalties, creates no new obstacles to attacking the validity of the removal order, see, e.g., INA § 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii) (allowing reopening of a removal order based on lack of notice), and does not diminish the petitioner’s access to whatever path for lawful entry into the United States might otherwise be available to him under the immigration laws.
Id. at 497–98 (emphasis in original).
In observing that reinstatement “creates no new obstacles to attacking the validity of the removal order,” we explicitly referred to § 1229a(b)(5)(C)(ii) as an avenue of relief potentially available to Morales. Id. at 498. That provision establishes a procedure, separate from the general motion-to-reopen 90-day limitation in § 1229a(c)(7), by which an alien may seek rescission of a removal order entered in absentia based on a claim of lack of notice.3 Reinstatement does not take that away. Morales, however, had not availed himself of this procedure, and we concluded that § 1231(a)(5) barred him from raising such a challenge in the reinstatement proceeding itself. Id. at 496 n.13.
Miller came to this Court as a petition for review of the BIA’s denial of a motion to reopen. 889 F.3d at 1001. The petitioner, Miller, was ordered removed in absentia and later claimed that she had not received notice of the removal hearing. Id. at 1000. After her removal order was reinstated, Miller sought to reopen her removal proceeding pursuant to § 1229a(b)(5)(C)(ii). Id. at 1001. The BIA determined, however, that it lacked jurisdiction to reopen Miller’s prior removal order because it had been reinstated. Id. We disagreed with the BIA and explained that Morales-Izquierdo “construed § 1231(a)(5) as preserving a non-citizen’s right to file a motion to reopen under § 1229a(b)(5)(C)(ii).” Id. at 1002. Thus, we held that “an individual placed in reinstatement proceedings under § 1231(a)(5) cannot as a general rule challenge the validity of the prior removal order in the reinstatement proceeding itself. But she retains the right conferred by § 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.’ ” Id. at 1002–03 (quoting Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam)) (emphasis added).
Unlike Morales-Izquierdo and Miller, Padilla’s underlying removal order was not entered in absentia. Padilla received far more process than did the petitioners in either of those cases. He received notice of and appeared at the original removal hearing, was advised of and waived his right to counsel, and conceded removability.
Furthermore, unlike Morales-Izquierdo, Padilla petitions for review of the BIA’s denial of his motion to reopen, not for review of the reinstatement order itself.4 Thus, Padilla’s case procedurally is more akin to Miller. But unlike Miller, Padilla’s motion to reopen was not filed pursuant to § 1229a(b)(5)(C)(ii), and Padilla can point to no specific statutory provision separate from § 1229a(c)(7) that confers upon him the right to reopen his prior removal proceeding despite § 1231(a)(5)’s plain command. See Rodriguez-Saragosa, 904 F.3d at 355.
Suggesting incompetence raises questions similar to absentia, Padilla invokes the principle of constitutional avoidance to contend that we must allow reopening so as to avoid a result that would require him to remain in Mexico in order to challenge the original removal, which thereby creates constitutional questions. This, however, is a misapplication of the canon of constitutional avoidance. “The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found susceptible of more than one construction; and the canon functions as a means of choosing between them.” Clark v. Martinez, 543 U.S. 371, 385, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (emphasis in original). Section 1231(a)(5)’s command is clear and its results intended. As the Supreme Court explained in Fernandez-Vargas, § 1231(a)(5) “explicitly insulates the [underlying] removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order.” 548 U.S. at 35, 126 S.Ct. 2422. Though the reinstatement provision “does not penalize an alien for the reentry,” it “subjects him to [a] new and less generous legal regime” because of his continued unlawful presence, which is “an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country.” Id. at 44, 126 S.Ct. 2422; see also Morales-Izquierdo, 486 F.3d at 498 (“While aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.”); Cordova-Soto, 732 F.3d at 794 (“Congress made a reasonable and understandable choice to provide that an alien who is removed ․ should not be able to engage in unlawful self-help by simply sneaking back into the country.”).
Moreover, even this harsher legal regime offers avenues of relief. For example, notwithstanding § 1231(a)(5)’s bar on any relief, “withholding of removal and [Convention Against Torture] protection[s] are available to individuals in reinstatement proceedings.” Perez-Guzman v. Lynch, 835 F.3d 1066, 1075 (9th Cir. 2016); see 8 C.F.R. §§ 208.16(c)(4), 208.31(e). We also have recognized that reinstatement does not insulate a prior removal order from review under all circumstances. Rather, § 1252(a)(2)(D) “permits some collateral attack on the underlying removal order during review of the reinstatement order if the petitioner can show that he has suffered a ‘gross miscarriage of justice’ in the initial deportation proceeding.” Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008) (quoting Debeato v. Att’y Gen. of the United States, 505 F.3d 231, 235 (3d Cir. 2007)). What Padilla cannot do, however, is reopen his prior removal order under § 1229a(c)(7). Forfeiture of the right to reopen under § 1229a(c)(7) is part of the less favorable legal regime to which Padilla is now subject by unlawfully reentering and remaining in the United States despite his prior removal order.5
In this precedential opinion, we join the Fifth and Seventh Circuits in concluding that § 1231(a)(5) bars reopening a removal order that has been reinstated following an alien’s unlawful reentry into the United States. Because Padilla’s 2008 removal order has been reinstated, the BIA properly concluded that § 1231(a)(5) deprived it of jurisdiction to entertain Padilla’s motion to reopen.
1. Under 8 C.F.R. § 1003.2(a), the BIA may at any time reopen removal proceedings sua sponte.
2. Agency regulations preclude an IJ from accepting “an admission of removability from an unrepresented respondent who is incompetent.” 8 C.F.R. § 1240.10(c).
3. Notably, earlier in the decision we observed that § 1231(a)(5) “specifically precludes Morales from seeking to reopen the previous removal order based on defective service or any other grounds.” Morales-Izquierdo, 486 F.3d at 496.
4. For this reason, we reject the Government’s argument that Morales-Izquierdo requires denial of Padilla’s petition because reinstatement of a prior removal order does not violate due process regardless of the process afforded in the underlying removal proceeding. Padilla’s petition comes to us in a different procedural posture than Morales-Izquierdo. He is not presently challenging the reinstatement order, nor could he at this time. “[W]here an alien pursues reasonable fear withholding of removal proceedings following the reinstatement of a prior removal order, the reinstated removal order does not become final until the reasonable fear of persecution and withholding of removal proceedings are complete.” Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012).
5. Another example is forfeiture of the right to apply for asylum. Perez-Guzman, 835 F.3d at 1081. When an alien subject to a reinstated removal order professes a reasonable fear of returning to the country designated in his reinstated removal order, the IJ is limited to adjudicating only his eligibility for withholding of removal. 8 C.F.R. § 208.31(e), (g)(2)(i). Yet under Padilla’s argument, once in withholding of removal proceedings an alien could move to reopen his underlying removal order so that he could then apply for asylum, effectively eviscerating this limitation. This anomaly further undermines Padilla’s argument.
RAYES, District Judge:
Response sent, thank you
Docket No: No. 16-72378
Decided: November 13, 2019
Court: United States Court of Appeals, Ninth Circuit.
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