Garcia Sarmiento v. Garland, 45 F.4th 560

Garcia Sarmiento, a Honduran national who first entered the U.S. as an LPR in 2001, was removed in 2008 after a cocaine-possession conviction.
In Honduras he ran a barbershop; in 2014 gangs extorted him, threatened him, and murdered his brother; he unlawfully reentered the U.S. in 2014 and later pleaded guilty to illegal reentry. DHS reinstated his prior removal order in July 2019.
He expressed fear of return and sought withholding of removal and CAT protection; the IJ found him credible but denied withholding (no protected social group, no nexus, and government could control the violence) and denied CAT relief. The BIA affirmed on January 16, 2020.
On January 24, 2020 he moved to reopen based on vacatur of the 2008 conviction, asserting eligibility for cancellation of removal or voluntary departure; the BIA denied the motion on June 10, 2020, finding he is barred by 8 U.S.C. § 1231(a)(5) and, alternatively, failed to show prima facie eligibility for cancellation (ten years' continuous presence/hardship).
The petition for review was filed July 9, 2020; the First Circuit held it untimely as to the January 16 decision and therefore dismissed that challenge, and denied review of the June 10 denial because the BIA did not abuse its discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction over Jan 16 BIA affirmance	Garcia Sarmiento challenged the BIA's January 16 denial of withholding/CAT.	Gov't: petition was not filed within the 30-day limit.	Court: Petition untimely for Jan 16 decision; no jurisdiction; claim dismissed.
Whether §1231(a)(5) bars reopening of reinstated removal order	Garcia Sarmiento sought reopening after vacatur of prior conviction to pursue cancellation/voluntary departure.	Gov't: §1231(a)(5) bars reopening and any relief for illegal reentrants with reinstated orders.	Court: §1231(a)(5) bars reopening of the reinstated order; BIA did not abuse discretion.
Prima facie eligibility for cancellation of removal	Vacatur would remove the conviction-based bar and permit cancellation (requires 10 years' continuous presence and hardship).	Gov't/BIA: he failed to show ten years' continuous presence or qualifying-relative hardship.	Court: Even if §1231(a)(5) did not bar relief, he failed to establish prima facie eligibility.
Voluntary departure claim	Garcia Sarmiento sought voluntary departure as alternative relief.	Gov't: Argument not properly raised/exhausted before the BIA.	Court: Petition dismissed as to independent voluntary-departure claim for failure to exhaust administrative remedies.

Johnson v. Guzman Chavez, 141 S. Ct. 2271 (Sup. Ct. 2021) (reinstated removal orders are not subject to reopening or review)
Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (Congress hardened consequences for unlawful reentrants in IIRIRA amendments)
Lattab v. Ashcroft, 384 F.3d 8 (1st Cir. 2004) (reinstatement produces reinstated order, ineligibility for relief, and removal under prior order)
Tarango-Delgado v. Garland, 19 F.4th 1233 (10th Cir. 2021) (circuit holding that reinstated orders bar reopening)
Stone v. INS, 514 U.S. 386 (1995) (motions to reopen do not toll the judicial-review filing period)
Ven v. Ashcroft, 386 F.3d 357 (1st Cir. 2004) (same)
Zhang v. INS, 348 F.3d 289 (1st Cir. 2003) (judicial-review time limit is jurisdictional)