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Cuenca v. Barr

United States Court of Appeals, Ninth Circuit

November 13, 2019

Alfonso Padilla Cuenca, Petitioner,
William P. Barr, Attorney General, Respondent.

          Argued and Submitted June 11, 2019 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A088-890-971

          Judah Lakin (argued), Van Der Hout Brigagliano & Nightingale LLP, San Francisco, California; Frances Kreimer, Dolores Street Community Services, San Francisco, California, for Petitioner.

          Jonathan K. Ross (argued) and Enitan O. Otunla, Trial Attorneys; Bernard A. Joseph, Senior Litigation Counsel; Derek C. Julius, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Mary M. Schroeder and Milan D. Smith, Jr., Circuit Judges, and Douglas L. Rayes, [*] District Judge.

         SUMMARY [**]


         Denying Fernando Padilla Cuenca's petition for review of a decision of the Board of Immigration Appeals, the panel held that 8 U.S.C. § 1231(a)(5), which empowers an immigration officer to reinstate a prior removal order, permanently bars reopening of the prior removal order under 8 U.S.C. § 1229a(c)(7).

         After being physically removed pursuant to an immigration judge's order of removal in 2008, Padilla unlawfully reentered the United States. Thereafter, the Department of Homeland Security ("DHS") apprehended Padilla and proceeded to reinstate his prior removal order. DHS did not execute the reinstated order, however, because an immigration officer determined that Padilla had a reasonable fear of persecution and torture if removed to Mexico and referred his case to Immigration Court for withholding of removal proceedings.

         Despite his ongoing withholding of removal proceeding, Padilla sought to reopen his 2008 removal proceeding in order to apply for asylum, which offers broader protection than withholding. He filed a motion to reopen pursuant to 8 U.S.C. § 1229a(c)(7), which allows an alien to move to reopen his removal proceeding within 90 days of a final removal order based on new, material facts that could not have been discovered or presented at the original hearing. As relevant here, Padilla contended that his underlying removal proceedings violated due process because he was not mentally competent to represent himself. However, the BIA concluded that 8 U.S.C. § 1231(a)(5), which provides for reinstatement of a prior order and states that the prior order "is not subject to be reopened or reviewed," barred reopening of Padilla's 2008 order because it had been reinstated.

         The panel held that the language of § 1231(a)(5) unambiguously and permanently bars reopening a reinstated prior removal order, noting that the Fifth and Seventh Circuits likewise interpreted the statute as a permanent bar. The panel also explained that this plain reading of the statute comports with the statute's clear Congressional purpose: expanding the types of orders that can be reinstated and limiting the relief available to aliens whose orders have been reinstated.

         Explaining that § 1231(a)(5) provides that an alien forfeits the right to file a motion to reopen by reentering the country illegally, the panel rejected Padilla's contention 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.

         Padilla also contended that § 1231(a)(5) imposed a temporal limit on the bar to reopening such that the bar applies only during the time an immigration officer spends complying with the regulatory prerequisites to reinstatement, but once the prior removal order has been reinstated the bar to reopening is lifted. Padilla relied on this court's decisions in Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc), which stated that reinstatement creates no new obstacles to attacking the validity of a prior removal order, and Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018), which held that an individual placed in reinstatement proceedings retains the right conferred by § 1229a(b)(5)(C)(ii), to seek rescission of an in absentia order, based on lack of notice, by filing a motion to reopen at any time.

         However, the panel concluded that the specific factual and procedural contexts of these decisions were materially distinguishable from Padilla's case. In addition to noting that Morales-Izquierdo came to this court as a petition for review of a reinstatement order, not from a denial of a motion to reopen, the panel explained that, unlike Morales-Izquierdo and Miller, Padilla's underlying removal order was not entered in absentia, and Padilla received far more process than did the petitioners in those cases. The panel also explained that, unlike Miller, Padilla's motion was not filed pursuant to § 1229a(b)(5)(C)(ii) to reopen an in absentia order, and Padilla had pointed to no statutory provision separate from § 1229a(c)(7) that confers the right to reopen his prior proceeding despite § 1231(a)(5)'s plain command.

         Padilla also suggested that incompetence raises questions similar to absentia, invoking the principle of constitutional avoidance to support reopening. The panel rejected this contention as a misapplication of the canon of constitutional avoidance because § 1231(a)(5)'s command is clear and its results intended.

         Further, the panel noted that even this harsher regime offers avenues of relief: withholding of removal and protection under the Convention Against Torture are available in reinstatement proceedings, and some collateral attack on an underlying order during reinstatement proceedings may be available if the petitioner can show that he suffered a gross miscarriage of justice in the initial proceeding.


          RAYES, ...

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