Cordova-Soto v. Holder
732 F.3d 789
| 7th Cir. | 2013Background
- Cordova-Soto, a Mexican citizen, entered the U.S. as an infant and became a lawful permanent resident in 1991.
- She was convicted in Kansas in 2005 for possessing methamphetamine, a felony under state law.
- Based on allegedly erroneous legal advice, she signed a stipulation requesting removal to Mexico in 2005 without a hearing.
- Three weeks after removal, she unlawfully reentered the U.S. and returned to Kansas with her U.S.-born children.
- In 2010, immigration authorities reinstated the 2005 removal order under 8 U.S.C. § 1231(a)(5) after detecting the illegal reentry.
- Cordova-Soto sought to reopen the 2005 order in 2011; the IJ and BIA denied, and the Tenth Circuit lacked jurisdiction to review the 2005 order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1231(a)(5) permanently bars reopening | Cordova-Soto argues the bar is temporary, not permanent. | Government argues § 1231(a)(5) is a permanent prohibition after reinstatement. | Permanent bar; no reopening after reinstatement. |
| Jurisdiction to review the reopening denial | Cordova-Soto contends circuit lacks jurisdiction to review the reopening denial. | Government asserts jurisdiction exists over legal questions about § 1231(a)(5). | We have jurisdiction to review the legal questions surrounding § 1231(a)(5). |
| Timeliness of motion to reopen | Sought reopening within standard periods or tolling considerations. | Motion untimely; no adequate tolling shown. | Motion to reopen barred by timeliness and § 1231(a)(5) bar. |
| Collateral attack on the underlying 2005 removal order during reinstatement review | Assert collateral attack on underlying order permissible during reinstatement challenge. | Collateral review barred by § 1231(a)(5) once reinstatement completed. | Collateral review barred; underlying order not reopenable. |
| Fugitive disentitlement doctrine relevance | Argues doctrine should not apply to bar reopening. | Court may apply fugitive disentitlement to deny relief. | Disentitlement doctrine supported; reopening denied. |
Key Cases Cited
- Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir.2006) (state drug possession felony not an aggravated felony)
- Tapia-Lemos v. Holder, 696 F.3d 687 (7th Cir.2012) (expedites re-removal; reinstatement finality)
- Zambrano-Reyes v. Holder, 725 F.3d 744 (7th Cir.2013) (denying petition to reopen after reinstatement)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (U.S. 2006) (finality of reinstatement under § 1231(a)(5))
- Ortega-Rodriguez v. United States, 507 U.S. 234 (U.S. 1993) (fugitive disentitlement doctrine overview)
- Jacob v. United States, 714 F.3d 1032 (7th Cir.2013) (fugitive disentitlement; dismissal of belated appeals)
- Thiam v. Holder, 677 F.3d 299 (6th Cir.2012) (venue transfers and jurisdictional considerations)
- Marinov v. Holder, 687 F.3d 365 (7th Cir.2012) (jurisdiction to review certain legal questions under § 1252(a)(2)(D))