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
[**]
Immigration
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.
OPINION
RAYES,
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