GOMEZ GOMEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-07-09No. No. 18-72800

Summary · law.co

Holding. The petition for review was denied because federal law establishes a permanent bar to reopening removal orders reinstated due to illegal reentry, which applies both during and after the reinstatement process and cannot be overcome by arguments based on the conclusion of reinstatement proceedings, current location outside the United States, or alleged due process violations.

Ballardo Gomez-Gomez, a Nicaraguan citizen, challenged the Board of Immigration Appeals' refusal to reopen his deportation proceedings. Gomez-Gomez had been removed from the United States, but later illegally reentered the country, which triggered reinstatement of his removal order in 2012. He sought to reopen his original deportation case, arguing among other things that the bar against reopening no longer applied because his reinstatement proceeding had concluded and he was now outside the country.

The court held that federal law imposes a permanent jurisdictional bar preventing reopening of removal orders that have been reinstated due to illegal reentry. This bar applies regardless of whether the reinstatement process is ongoing or complete, and regardless of the alien's current location. By reentering illegally, Gomez-Gomez forfeited his right to seek reopening of his deportation proceedings. The court rejected his arguments that prior case law or due process considerations created an exception to this statutory bar, though it noted that the bar does not foreclose other forms of relief such as withholding of removal or Convention Against Torture claims in reinstatement proceedings.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a permanent jurisdictional bar to reopening removal orders applies after reinstatement proceedings conclude
Whether the reinstatement bar applies to aliens currently located outside the United States
Whether illegal reentry forfeits the right to challenge a prior removal order
Whether due process violations in the original deportation hearing overcome the reinstatement bar

Procedural posture

Gomez-Gomez petitioned for review of the Board of Immigration Appeals' decision denying his motion to reopen deportation proceedings following reinstatement of his removal order.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Ballardo Gomez-Gomez, a native and citizen of Nicaragua, seeks review of the decision of the Board of Immigration Appeals (BIA) denying his motion to reopen his deportation proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

Because Gomez-Gomezs removal order was reinstated for illegal reentry in November 2012, it “is not subject to being reopened or reviewed” and Gomez-Gomez “is not eligible and may not apply for” reopening. 8 U.S.C. § 1231(a)(5). Section 1231(a)(5) “institut[es] a permanent jurisdictional bar” precluding a motion to reopen under 8 U.S.C. § 1229a(c)(7). Cuenca v. Barr, 956 F.3d 1079, 1084 (9th Cir. 2020). This permanent bar applies both during the reinstatement process and after it has concluded. See id. at 1085. We therefore reject Gomez-Gomezs argument that the bar no longer applies to him because his reinstatement proceeding has concluded.

Gomez-Gomez forfeited his right to reopen his deportation proceedings under § 1229a(c)(7) by reentering the country illegally. See id.; 8 U.S.C. § 1231(a)(5). Gomez-Gomezs reliance on Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495–96 (9th Cir. 2007), and Miller v. Sessions, 889 F.3d 998, 1002–03 (9th Cir. 2018), is misplaced, because the aliens in those cases sought rescission of removal orders entered in absentia under 8 U.S.C. § 1229a(b)(5)(C)(ii), a form of relief not available to Gomez-Gomez. Gomez-Gomez points to no other statutory provision “that confers upon him the right to reopen his prior removal proceeding despite § 1231(a)(5)’s plain command.” Cuenca, 956 F.3d at 1086–87.

Because the reinstatement bar is permanent, we also reject Gomez-Gomezs argument that the reinstatement bar does not apply because he is currently outside the United States. In context, Morales-Izquierdo’s statement that if an alien “has a legitimate basis for challenging his prior removal order, he will be able to pursue it after he leaves the country” applies only to aliens who did not reenter the United States illegally after being removed. 486 F.3d at 498. As explained above, by reentering the country illegally, Gomez-Gomez forfeited his right to reopen his removal proceedings. 8 U.S.C. § 1231(a)(5). Therefore, the BIA did not err in holding that it lacked the authority to reopen his deportation proceedings.

We also reject Gomez-Gomezs argument that the reinstatement bar does not apply because the underlying order in his deportation proceedings violated his due process rights. Although Gomez-Gomez was entitled to fair procedures at his deportation hearing, he forfeited his right to a readjudication of his final removal order by unlawfully reentering the country. Cuenca, 956 F.3d at 1087–88. Moreover, the reinstatement bar does not preclude relief through an application for withholding of removal or under the Convention Against Torture in reinstatement proceedings, and does not preclude a “collateral attack on the underlying removal order during review of the reinstatement order if the [alien] can show that he has suffered a ‘gross miscarriage of justice’ in the initial deportation proceeding.” Id. at 1087 (quoting Garcia de Rincon v. Dept of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008)).

PETITION DENIED.