981 F.3d 978
11th Cir.2020Background
- Alfaro-Garcia, a Mexican national, entered the U.S. without inspection and in August 2008 executed a stipulated removal to Mexico, waiving a hearing and appeal.
- DHS removed him to Mexico on August 12, 2008; he alleges he illegally reentered the U.S. in November 2008 and remained.
- In April 2018 DHS issued a Notice of Intent/Decision to Reinstate Prior Order and reinstated the 2008 removal under 8 U.S.C. § 1231(a)(5).
- On August 9, 2018 Alfaro-Garcia filed a motion to reopen claiming changed country conditions and eligibility for cancellation of removal; the IJ initially granted reopening for lack of DHS response but then rescinded that grant after learning of the reinstatement.
- The BIA dismissed his appeal, holding § 1231(a)(5) bars reopening of a reinstated removal order after illegal reentry; Alfaro-Garcia timely petitioned for review and does not challenge the reinstatement itself.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an alien who illegally reentered after removal retains the statutory right to file one motion to reopen under 8 U.S.C. § 1229a(c)(7) despite reinstatement under § 1231(a)(5) | Alfaro-Garcia: § 1229a(c)(7) guarantees at least one motion to reopen; Jian Le Lin confirms that right | Government/DHS: § 1231(a)(5) unambiguously reinstates prior removal orders and bars reopening or review for aliens who illegally reenter | Court: § 1231(a)(5) unambiguously bars reopening of a reinstated removal order following illegal reentry; BIA did not abuse discretion |
Key Cases Cited
- Jian Le Lin v. United States Attorney General, 681 F.3d 1236 (11th Cir. 2012) (recognized statutory right to file one motion to reopen)
- Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020) (held § 1231(a)(5) bars reopening of reinstated removal orders)
- Rodriguez-Saragosa v. Sessions, 904 F.3d 349 (5th Cir. 2018) (interpreting § 1231(a)(5) as a permanent bar for illegal reentrants)
- Cordova-Soto v. Holder, 732 F.3d 789 (7th Cir. 2013) (held reinstatement statute precludes reopening)
- Ron Pair Enters., Inc. v. United States, 489 U.S. 235 (U.S. 1989) (principle that statutory text controls interpretation)