Felipe Cobos-Luna v. Dana J. Boente
678 F. App'x 498
9th Cir.2017Background
- Cobos-Luna is subject to a prior removal order that was reinstated after he reentered the U.S.; he filed a motion to reopen the original 2001 removal proceedings.
- The Immigration Judge (IJ) denied the motion to reopen; the Board of Immigration Appeals (BIA) dismissed his appeal.
- Reinstatement of a prior removal order under 8 U.S.C. § 1231(a)(5) bars reopening or review of that prior order.
- Cobos-Luna raised new arguments on appeal (challenge to IJ review of asylum officer fear determinations; CAT relief exclusion from § 1231(a)(5)) that were not presented to the agency.
- The motion to reopen was untimely and no statutory or regulatory exceptions were shown; the BIA also considered and declined sua sponte reopening because no exceptional circumstances were identified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ/BIA had jurisdiction to consider reopening after reinstatement under § 1231(a)(5) | Cobos-Luna: IJ could consider reopening because record lacks IJ concurrence of asylum officer negative fear findings; CAT relief should not be barred by § 1231(a)(5) | Reinstatement under § 1231(a)(5) bars reopening or review of prior removal orders | Court: § 1231(a)(5) barred jurisdiction; BIA/IJ lacked jurisdiction to reopen the reinstated order |
| Whether issues not raised before the agency may be reviewed | Cobos-Luna: asks court to reach merits of arguments raised for first time on review | Agency exhaustion required under 8 U.S.C. § 1252(d)(1) | Court: Issues unexhausted; no jurisdiction to consider them |
| Whether a gross miscarriage of justice exception permits collateral review | Cobos-Luna: claims miscarriage of justice would allow review | Gross miscarriage of justice exception applies in limited circumstances but must be properly raised | Court: Petitioner did not raise miscarriage claim below; he sought review of BIA denial of motion to reopen, not reinstatement, so exception not available here |
| Whether BIA was required to sua sponte consider gross miscarriage or exceptional circumstances when denying reopening | Cobos-Luna: BIA should have independently considered miscarriage/exceptional circumstances | No statutory, regulatory, or caselaw duty for BIA to sua sponte raise or decide such arguments | Court: No duty; BIA permissibly declined sua sponte reopening; decision not reviewable |
Key Cases Cited
- Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (de novo review of legal questions and agency jurisdiction)
- Padilla v. Ashcroft, 334 F.3d 921 (9th Cir. 2003) (reinstatement under § 1231(a)(5) bars reopening or review of prior removal order)
- Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004) (exhaustion under § 1252(d)(1) generally bars review of unraised claims)
- Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133 (9th Cir. 2008) (gross miscarriage of justice exception to collateral-review bar described)
- Toufighi v. Mukasey, 538 F.3d 988 (9th Cir. 2008) (limiting scope of review when petition seeks review of denial of motion to reopen rather than reinstatement)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (BIA’s denial of sua sponte reopening generally not subject to further review absent legal error)