Alfonso Padilla Cuenca v. William Barr
956 F.3d 1079
| 9th Cir. | 2019Background
- Padilla, a Mexican national, was ordered removed in 2008 after appearing pro se, waiving counsel, admitting removability, and waiving relief; he was removed to Mexico on November 28, 2008.
- Padilla unlawfully reentered the U.S. the following month; DHS located him in 2015 and issued Form I-871, reinstating his 2008 removal order under 8 U.S.C. § 1231(a)(5).
- Padilla asserted a fear of persecution/torture; an asylum officer found his fear reasonable and referred him to withholding-only proceedings; an IJ found him incompetent and appointed counsel for those proceedings.
- Withholding proceedings remain pending, so the reinstated removal order has not been executed.
- Padilla moved to reopen his 2008 removal proceeding under 8 U.S.C. § 1229a(c)(7), arguing equitable tolling, incompetence at the original hearing (due process), and that reopening was necessary to seek asylum.
- The IJ and BIA held they lacked jurisdiction to reopen because § 1231(a)(5) bars reopening of reinstated orders; Padilla petitioned the Ninth Circuit, which reviewed whether § 1231(a)(5) permanently bars reopening under § 1229a(c)(7).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1231(a)(5) permanently bars reopening under § 1229a(c)(7) or only during the reinstatement process | Padilla: bar is temporal — applies only during the reinstatement process; once in withholding proceedings or after reinstatement, he may reopen under § 1229a(c)(7) | Government: § 1231(a)(5)’s plain text unambiguously forbids reopening or review of a reinstated order; it permanently divests jurisdiction | Court: § 1231(a)(5) unambiguously bars reopening under § 1229a(c)(7) after reinstatement; petition denied |
| Whether constitutional-avoidance or due-process concerns (incompetence at original hearing) require allowing reopening despite § 1231(a)(5) | Padilla: reopening is needed to cure due-process defects (incompetence) and avoid being forced to litigate only from Mexico | Government: statutory text is clear; Congress intended harsher consequences for unlawful reentry but other remedies remain (withholding, CAT, limited collateral review) | Court: canonical avoidance not triggered because statute is unambiguous; due-process claim does not overcome § 1231(a)(5)’s bar; alternative avenues exist |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (motion-to-reopen is an important safeguard)
- Dada v. Mukasey, 554 U.S. 1 (2008) (on motions to reopen and relief availability)
- Rodriguez-Saragosa v. Sessions, 904 F.3d 349 (5th Cir. 2018) (§ 1231(a)(5) unambiguously deprives BIA authority to reopen)
- Cordova-Soto v. Holder, 732 F.3d 789 (7th Cir. 2013) (§ 1231(a)(5) bars reopening of reinstated orders)
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (reinstatement does not create new obstacles to attacking validity; preserves certain post-reinstatement avenues)
- Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018) (distinguishing reopening under § 1229a(b)(5)(C)(ii) for in absentia orders)
- Padilla-Ramirez v. Bible, 882 F.3d 826 (9th Cir. 2017) (withholding-only proceedings do not override § 1231(a)(5)’s prohibition on reopening)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (IIRIRA’s reinstatement regime subjects reentrants to a less generous legal regime)
- Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016) (withholding and CAT protections remain available in reinstatement proceedings)
- Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133 (9th Cir. 2008) (§ 1252(a)(2)(D) permits collateral attack for gross miscarriage of justice)