Evelio Sanchez-Gonzalez v. Merrick B. Garland, 4 F.4th 411

Evelio Sanchez Gonzalez, a lawful permanent resident from Honduras, pleaded guilty in 1999 to sexual battery in Ohio; immigration authorities ordered him removed in 2008 as the conviction was a crime involving moral turpitude.
Sanchez illegally reentered the U.S. twice; DHS reinstated the 2008 removal order after each illegal reentry (2012 and 2018) and removed him accordingly.
In state post-conviction proceedings the sexual-battery conviction was vacated because the trial judge failed to advise Sanchez of deportation consequences under Ohio law; he pleaded to simple assault (not a CIMT).
Sanchez moved the BIA to reopen the 2008 removal order, arguing the vacated conviction and ineffective assistance of counsel undermined the original removal basis.
The BIA denied the motion, concluding it lacked jurisdiction to reopen because 8 U.S.C. § 1231(a)(5) bars reopening or review of a prior removal order reinstated after an illegal reentry.
Sanchez petitioned the Sixth Circuit; the court considered whether it had jurisdiction to review the BIA’s statutory interpretation, whether § 1231(a)(5) precludes reopening, and whether a gross-miscarriage-of-justice exception applies.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Jurisdiction to review BIA denial and interpret § 1231(a)(5)	Sanchez: Court can review legal questions under § 1252(a)(2)(D) when BIA denies a motion to reopen.	Gov: Review of the underlying removal order is time-barred; § 1252(b)(1) bars late petitions for review.	Court: Has jurisdiction to review legal questions about § 1231(a)(5) under § 1252(a)(2)(D), but cannot grant relief that reopens the underlying removal order (time-bar remains).
2. Whether § 1231(a)(5) bars reopening a reinstated removal order	Sanchez: He should be allowed to reopen because his conviction was vacated and the removal basis no longer exists.	Gov: § 1231(a)(5) unambiguously states reinstated orders "are not subject to being reopened or reviewed."	Court: § 1231(a)(5) precludes reopening; petitioner who illegally reentered forfeits right to reopen the prior removal order.
3. Whether a "gross miscarriage of justice" exception allows review	Sanchez: Even if § 1231(a)(5) bars reopening generally, an exception for gross miscarriage of justice should permit review given the vacated conviction and ineffective assistance claims.	Gov: No textual basis for such an exception; allowing it would circumvent statutory time bars.	Court: Declines to create or apply the exception; no support in § 1231(a)(5) or Sixth Circuit precedent and Sanchez would not meet the exception’s standard anyway.

Cordova-Soto v. Holder, 732 F.3d 789 (7th Cir. 2013) (interpreting § 1231(a)(5) as barring reopening of reinstated orders)
Moreno-Martinez v. Barr, 932 F.3d 461 (6th Cir. 2019) (time-bar and limits on collateral challenges to prior removal orders)
Rodriguez-Saragosa v. Sessions, 904 F.3d 349 (5th Cir. 2018) (savings-clause analysis and interpretation of § 1231(a)(5))
Kucana v. Holder, 558 U.S. 233 (2010) (federal courts generally have jurisdiction over denials of motions to reopen)
Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (legislative history regarding reinstatement statute)
Vega-Anguiano v. Barr, 982 F.3d 542 (9th Cir. 2019) (applying a gross-miscarriage-of-justice exception in reinstatement context)
Martinez v. Larose, 968 F.3d 555 (6th Cir. 2020) (reaffirming that illegal reentrants cannot challenge prior removal orders by reopening)