Jose Rodriguez-Saragosa v. Jefferson Sessions, III, 904 F.3d 349

Background

In 1999 an IJ ordered Rodriguez-Saragosa removed to Mexico and denied his cancellation of removal because a 1989 Texas conviction was treated as a §16(b) "crime of violence;" the BIA affirmed in 2002 and he was removed.
Rodriguez-Saragosa illegally reentered the U.S. in April 2003 and lived in Texas until arrested in 2015 for DWI; DHS charged him with unlawful reentry and (according to petitioner) reinstated the 2002 removal order under 8 U.S.C. §1231(a)(5).
In 2016 petitioner learned circuit precedent had changed regarding what counts as a §16(b) crime and filed a nearly 14-year–untimely motion to reopen the 2002 removal order to seek cancellation of removal.
Petitioner sought equitable tolling of the 90‑day statutory filing deadline and alternatively requested the BIA to reopen sua sponte.
The BIA denied reopening: (1) as untimely (rejecting tolling), (2) because a favorable panel decision relied upon was vacated (an error under later Supreme Court authority), and (3) because the record indicated DHS had reinstated the prior order under §1231(a)(5), which makes prior orders “not subject to being reopened.”
The Fifth Circuit affirmed, holding §1231(a)(5) bars reopening of the prior removal proceedings (statutory motion and sua sponte), and denied the petition for review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §1231(a)(5) bars reopening petitioner’s 2002 removal proceedings	§1231(a)(5) should not prevent reopening; petitioner argued changed law entitled him to equitable tolling and reopening	DHS/BIA argued petitioner reentered illegally and §1231(a)(5) reinstated and barred reopening	Held: §1231(a)(5) unambiguously bars reopening of the prior order once DHS finds illegal reentry; BIA correctly denied reopening
Whether equitable tolling excuses the nearly 14‑year delay in filing a motion to reopen	Petitioner: circuit law changes (Armendariz‑Moreno, Gonzalez‑Longoria) and notice/inequity justify tolling	Government: untimely, no tolling; BIA relied on multiple grounds	Held: Two of BIA’s tolling rationales were infirm, but tolling is moot because §1231(a)(5) made reopening futile
Whether the BIA could reopen the 2002 proceedings sua sponte despite §1231(a)(5)	Petitioner: BIA has broad sua sponte authority and should exercise it given changed law and equities	Government: §1231(a)(5) is a mandatory statutory limitation that precludes reopening, even sua sponte	Held: BIA’s sua sponte authority cannot override §1231(a)(5); denial was correct
Whether the court has jurisdiction to review the BIA’s legal determination that §1231(a)(5) prevents sua sponte reopening	Petitioner: implicit that judicial review exists of legal questions preventing BIA action	Government: argues limited jurisdiction over sua sponte decisions	Held: Court has jurisdiction to review legal conclusions that bar BIA’s exercise of sua sponte discretion and resolved the issue on the merits

Key Cases Cited

United States v. Galvan‑Rodriguez, 169 F.3d 217 (5th Cir.) (1999) (previous circuit construction treating certain Texas conviction as §16(b) crime of violence)
United States v. Armendariz‑Moreno, 571 F.3d 490 (5th Cir.) (2009) (overruling Galvan‑Rodriguez on §16(b) analysis)
United States v. Gonzalez‑Longoria, 813 F.3d 225 (5th Cir.) (2016) (panel decision holding §16(b) unconstitutionally vague; later addressed by en banc and Supreme Court)
Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (Supreme Court reinstating core vagueness holding relevant to §16(b))
Dada v. Mukasey, 554 U.S. 1 (2008) (statutory right to file one motion to reopen removal proceedings)
Fernandez‑Vargas v. Gonzales, 548 U.S. 30 (2006) (Congressional intent to give finality to reinstated removal orders)
Cordova‑Soto v. Holder, 732 F.3d 789 (7th Cir.) (2013) (construing §1231(a)(5) to bar reopening; supports finality rationale)
Ovalles v. Holder, 577 F.3d 288 (5th Cir.) (2009) (reviewing BIA legal conclusion that regulatory bar prevented sua sponte reopening)
Lugo‑Resendez v. Lynch, 831 F.3d 337 (5th Cir.) (2016) (holding statutory reopening deadline is subject to equitable tolling)