32 F.4th 806
9th Cir.2022Background
- Jose Gutierrez‑Zavala, a Mexican national admitted as an LPR in 1988, was convicted in California of second‑degree burglary in 1998 and the INS charged him as removable for an aggravated felony.
- An IJ ordered removal; after counsel failed to file a BIA brief, Gutierrez‑Zavala was removed to Mexico in May 2003.
- He illegally reentered the U.S.; DHS detained him in 2019 and reinstated his prior removal order under 8 U.S.C. § 1231(a)(5).
- In January 2020 he filed an untimely motion to reopen, arguing tolling for ineffective assistance of counsel and, on the merits, that Descamps undermined his removability; he also sought sua sponte reopening.
- The BIA acknowledged the reinstatement but, citing Morales‑Izquierdo, proceeded to deny the motion on the merits for lack of diligence and refused sua sponte reopening.
- The Ninth Circuit took judicial notice of the reinstatement, held the BIA lacked jurisdiction under § 1231(a)(5) as explained in Cuenca, and denied the petition for review without remanding because the jurisdictional bar made a remand futile.
Issues
| Issue | Gutierrez‑Zavala's Argument | Garland's Argument | Held |
|---|---|---|---|
| Whether the BIA had jurisdiction to consider a motion to reopen a removal order that had been reinstated after illegal reentry | §1229a(c)(7) permits motions to reopen; BIA may consider relief despite reinstatement | §1231(a)(5) bars reopening or review of reinstated prior removal orders after illegal reentry | BIA lacked jurisdiction under §1231(a)(5) as explained in Cuenca; petition denied on that ground |
| Whether the untimely motion to reopen was tolled due to ineffective assistance of counsel | Counsel’s failure to file the BIA brief tolled the 90‑day deadline; motion should be deemed timely | Even if argued, BIA lacked jurisdiction to reach tolling because order was reinstated | Court did not reach tolling on the merits because §1231(a)(5) jurisdictional bar controlled |
| Whether the BIA should have reopened proceedings sua sponte | Sua sponte reopening was warranted given alleged nonremovability under Descamps | Sua sponte reopening is discretionary and not justified here | BIA’s refusal to reopen sua sponte was not reached on merits—case dismissed for lack of jurisdiction |
| Whether the Ninth Circuit may deny the petition based on a jurisdictional bar the BIA did not rely upon | Remand is required when agency gives different rationale (Chenery) | Court may deny here because §1231(a)(5) made denial on jurisdictional grounds compelled and remand would be futile | Chenery exception applies; court may (and did) deny petition for lack of jurisdiction without remand |
Key Cases Cited
- Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020) (§1231(a)(5) bars reopening/review of reinstated removal orders)
- Morales‑Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (BIA decision the BIA relied on but distinguished in Cuenca)
- Lopez v. Garland, 17 F.4th 1232 (9th Cir. 2021) (describing requirements for reinstatement of a prior removal order)
- Descamps v. United States, 570 U.S. 254 (2013) (statutory interpretation affecting aggravated‑felony analysis; relied on by petitioner)
- Morgan Stanley Cap. Grp. Inc. v. Pub. Util. Dist. No. 1, 554 U.S. 527 (2008) (Chenery doctrine and its limits when outcome on remand is compelled)
- NLRB v. Wyman‑Gordon Co., 394 U.S. 759 (1969) (remand is unnecessary where it would be an idle and useless formality)