Jose Gutierrez-Gutierrez v. Merrick B. Garland, 991 F.3d 990

Gutierrez, a Mexican national, entered the U.S. in 1996 with a border crossing card and passport, overstayed, and was placed in removal proceedings in 1998.
In 1998 an IJ (presiding by teleconference) found him removable; an order was served (initially signed by a government attorney on behalf of the judge, later a copy signed by the judge was in the record), and Gutierrez was removed to Mexico on April 20, 1998.
Gutierrez alleges he reentered the U.S. in May 1998; because he had been removed, he was inadmissible for ten years absent permission to reapply.
In 2018 DHS arrested Gutierrez and reinstated the 1998 removal order under 8 U.S.C. § 1231(a)(5); Gutierrez sought review of the reinstatement and separately moved to reopen the 1998 proceedings claiming ineffective assistance and a "gross miscarriage of justice."
The immigration court and the BIA concluded they lacked jurisdiction to reopen the reinstated order; the district court consolidated and the Eighth Circuit denied Gutierrez’s petitions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of reinstatement of 1998 removal order	The order was a "forged non-order" (signed by gov't attorney) and thus no prior order existed	Administrative record contains an IJ's oral finding and a judge-signed order; substantial evidence supports a prior order	Reinstatement proper; record shows a judge-signed order exists
Lawfulness of May 1998 reentry	Entry was inspected and admitted at the border, so reentry was lawful	Even if inspected, reentry within 10 years after removal without permission is unlawful under the inadmissibility statute	Reentry was unlawful under 8 U.S.C. § 1182(a)(9)(A)(iii); reinstatement valid
Timeliness of constitutional/ineffective-assistance claim	Counsel was ineffective in 1998, creating a constitutional claim	Such a constitutional claim about the 1998 order is untimely because not raised within 30 days of the underlying order	Claim barred as untimely under 8 U.S.C. § 1252(b)(1)
Motion to reopen based on "gross miscarriage of justice"	Alleged miscarriage of justice (ineffective counsel) should allow reopening despite reinstatement bar	§ 1231(a)(5) expressly prohibits reopening/review of reinstated orders; no recognized exception under current law	No miscarriage-of-justice exception; BIA/immigration court lacked jurisdiction to reopen

Molina Jerez v. Holder, 625 F.3d 1058 (8th Cir. 2010) (limits on review of reinstated removal orders)
Perez-Garcia v. Lynch, 829 F.3d 937 (8th Cir. 2016) (review of whether reinstatement complied with regulation)
Ochoa-Carrillo v. Gonzales, 437 F.3d 842 (8th Cir. 2006) (jurisdiction to review reinstatement decisions)
Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir. 2002) (review of reinstatement under § 241.8)
Lara-Nieto v. Barr, 945 F.3d 1054 (8th Cir. 2019) (timeliness of constitutional claims tied to removal orders)
Terrazas-Hernandez v. Barr, 924 F.3d 768 (5th Cir. 2019) (distinguishing "admission" for adjustment from lawfulness of reentry)
Rodriguez-Saragosa v. Sessions, 904 F.3d 349 (5th Cir. 2018) (forfeiture of motion-to-reopen right after illegal reentry)
Cordova-Soto v. Holder, 732 F.3d 789 (7th Cir. 2013) (no miscarriage-of-justice exception to § 1231(a)(5))
Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020) (rejecting miscarriage-of-justice exception to reinstatement bar)