Ballardo Gomez-Gomez v. Merrick Garland
18-72800
| 9th Cir. | Jul 9, 2021Background
- Petitioner Ballardo Gomez-Gomez, a Nicaraguan national, sought review of the BIA’s denial of his motion to reopen prior deportation proceedings.
- His prior removal order was reinstated for illegal reentry in November 2012.
- The BIA denied reopening based on 8 U.S.C. § 1231(a)(5), which bars reopening or review of a reinstated removal order.
- Gomez-Gomez argued the reinstatement bar did not apply because the reinstatement proceeding had concluded, he was currently outside the U.S., and his original removal order violated due process.
- The Ninth Circuit denied the petition, holding the reinstatement bar is permanent, survives conclusion of reinstatement proceedings, and precludes reopening; but noted withholding/CAT relief remains available in reinstatement proceedings and collateral attack is possible only on a showing of a gross miscarriage of justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1231(a)(5) permanently bars motions to reopen under § 1229a(c)(7) after reinstatement | Bar does not apply after reinstatement concluded | § 1231(a)(5) creates a permanent jurisdictional bar to reopening | Court: § 1231(a)(5) is a permanent bar; reopening precluded |
| Whether illegal reentry forfeits the right to reopen prior removal proceedings | Gomez‑Gomez can still challenge prior order (relying on Morales‑Izquierdo) | Illegal reentry forfeits reopening rights under § 1231(a)(5) | Court: Illegal reentry forfeits the right to reopen; Morales‑Izquierdo not controlling here |
| Whether being outside the U.S. avoids the reinstatement bar | Leaving the U.S. lets alien pursue challenge after exit | Reinstatement bar applies regardless of current location if alien illegally reentered | Court: Bar applies even if alien is now outside the U.S.; Morales‑Izquierdo limited to aliens who did not illegally reenter |
| Whether a due‑process defect in the original removal proceeding permits reopening despite § 1231(a)(5) | Due‑process violation should allow readjudication | Reinstatement bar still precludes reopening; other relief routes exist | Court: Due‑process claim does not overcome the reinstatement bar; withholding/CAT available in reinstatement proceedings and collateral attack only for gross miscarriage of justice |
Key Cases Cited
- Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020) (reinstatement bar is a permanent jurisdictional bar to motions to reopen)
- Morales‑Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (discusses ability to challenge prior removal after leaving the U.S.; limited to aliens who did not illegally reenter)
- Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018) (involves rescission of in absentia removal orders; distinguishable)
- Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133 (9th Cir. 2008) (permits collateral attack on underlying removal order during reinstatement review if gross miscarriage of justice shown)