Pineda v. Garland, 20-9623

Pineda, a Mexican national, entered the U.S. as a child (1988) and became a lawful permanent resident in 1999.
In 2004 DHS charged him with removability for alien smuggling; he failed to appear, was ordered removed in absentia, but the IJ later rescinded that order and allowed him to seek cancellation of removal under 8 U.S.C. § 1229b(a).
The IJ denied cancellation for failure to show seven years of continuous residence after admission; the BIA dismissed in October 2015, DHS removed Pineda to Mexico, and this court denied his petition for review.
Pineda illegally reentered in February 2017; DHS reinstated the 2015 removal order under 8 U.S.C. § 1231(a)(5) and removed him again.
In July 2018 Pineda moved the BIA to reopen/reconsider based on Pereira (defective NTA does not trigger stop-time). The BIA initially denied in 2019, the court remanded, and DHS then conceded the stop-time application was erroneous.
On remand the BIA found DHS’s reinstatement of the removal order was a previously undisclosed, "significant development" that under § 1231(a)(5) divested the BIA of jurisdiction to reopen or review; the BIA denied the motion and Pineda sought review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1231(a)(5) bars the BIA from reopening or reconsidering a reinstated removal order	Pineda: BIA retained authority to reopen and should have done so	DHS: Reinstatement under § 1231(a)(5) precludes reopening or review	Court: § 1231(a)(5) operates as a mandatory bar to the BIA reopening or reconsidering a reinstated removal order; denial affirmed
Whether Pereira’s rule about defective NTAs prevents triggering the stop-time rule	Pineda: Defective NTA did not stop accrual of continuous residence and undermines the basis for denial of cancellation	DHS (initially): A subsequent notice of hearing cured the defective NTA; (on remand) DHS conceded the stop-time application was erroneous	Court: DHS conceded and Tenth Circuit law (Banuelos) supports that an incomplete NTA combined with a notice of hearing does not trigger stop-time; but reinstatement nonetheless barred relief
Whether Lorenzo/Mendiola limit § 1231(a)(5)’s effect on BIA authority	Pineda: Cited Lorenzo and Mendiola to argue § 1231(a)(5) does not categorically preclude review of legal/constitutional claims	DHS: § 1231(a)(5) prevents the BIA from reopening a reinstated order despite preserved judicial review of certain legal claims	Court: Distinguished those cases; § 1231(a)(5) nevertheless commands that the BIA may not reopen or review a reinstated removal order (while judicial review of some legal claims remains separately preserved)

Pereira v. Sessions, 138 S. Ct. 2105 (U.S. 2018) (Supreme Court holding an NTA that omits time and place does not trigger the stop-time rule)
Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020) (holding an incomplete NTA plus a notice of hearing does not trigger stop-time)
Lorenzo v. Mukasey, 508 F.3d 1278 (10th Cir. 2007) (discussing limits on review of reinstated orders and preserved judicial review of legal claims)
Rodriguez-Saragosa v. Sessions, 904 F.3d 349 (5th Cir. 2018) (concluding § 1231(a)(5) prevents BIA from reopening reinstated removal orders)
Alfaro-Garcia v. U.S. Att’y Gen., 981 F.3d 978 (11th Cir. 2020) (holding § 1231(a)(5) forfeits reopening relief after unlawful reentry and reinstatement)
Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020) (joining other circuits in concluding § 1231(a)(5) bars reopening reinstated orders)
Cordova-Soto v. Holder, 732 F.3d 789 (7th Cir. 2013) (concluding § 1231(a)(5) prevents belated attack on reinstated removal order)
Mena-Flores v. Holder, 776 F.3d 1152 (10th Cir. 2015) (standard of review for BIA motions to reopen/reconsider)
Qiu v. Sessions, 870 F.3d 1200 (10th Cir. 2017) (BIA abuse-of-discretion and legal error standards)
Reyes-Vargas v. Barr, 958 F.3d 1295 (10th Cir. 2020) (jurisdiction to review when BIA relies on incorrect legal premise)