49 F.4th 972
5th Cir.2022Background
- Petitioner Hortencia Ruiz-Perez, a Mexican national, was removed after convictions and false statements at the border and later illegally reentered the U.S.; DHS reinstated her prior removal order after her presence was discovered in 2019.
- Ruiz-Perez lived in the U.S. for years after reentry, alleged serious domestic abuse by her husband, and sought cancellation of removal under the VAWA special-rule and withholding/CAT protection.
- She did not challenge the DHS reinstatement determination; instead she applied for cancellation before an IJ and argued the 2006 statutory note and certain inadmissibility-waiver provisions allowed consideration.
- The IJ denied relief (finding lack of jurisdiction to consider cancellation and denying withholding/CAT); the BIA affirmed, holding § 1231(a)(5) (the reinstatement statute) bars any immigration “relief,” including cancellation.
- Ruiz-Perez petitioned the Fifth Circuit only to challenge the BIA’s conclusion that she is ineligible for cancellation; the majority exercised review of the BIA decision and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1231(a)(5) bars cancellation of removal by treating cancellation as prohibited “relief.” | Ruiz-Perez: cancellation is not barred; VAWA/2006 amendment and inadmissibility-waiver authority allow consideration. | Government: § 1231(a)(5)’s unqualified bar on “any relief” applies and precludes cancellation. | Majority: Cancellation is “relief” (more protective than asylum) and is barred by § 1231(a)(5); petition denied. |
| Whether the 2006 statutory note (discretion to consent to reapplication for admission) or § 1182(a)(9)(C)(iii) waiver override § 1231(a)(5). | Ruiz-Perez: those provisions create an exception or permit I.J. consideration. | Government: those provisions are discretionary and do not create rights that override the reinstatement statute. | Majority: Those provisions do not override § 1231(a)(5); reinstatement statute controls. |
| Whether the Fifth Circuit has jurisdiction to review this challenge (finality/timeliness of reinstatement-related proceedings). | Ruiz-Perez: she challenges a BIA final decision about ineligibility (timely filed); thus court has jurisdiction. | Government/Dissent: reinstatement orders are not reviewable removal orders or are final earlier such that review may be untimely; jurisdiction is limited. | Majority: Exercised jurisdiction to review BIA’s final-order determination; dissent would dismiss for lack of jurisdiction. |
| Whether cancellation resembles asylum or withholding/CAT for purposes of the reinstatement bar. | Ruiz-Perez: cancellation is distinct and not barred like asylum. | Government: cancellation is a form of relief that prevents removal and thus falls within “any relief.” | Majority: Cancellation is like (and superior to) asylum—permanent redress—so it qualifies as barred “relief.” |
Key Cases Cited
- Nasrallah v. Barr, 140 S. Ct. 1683 (holding withholding-only decisions do not constitute a "final order of removal" because they do not affect the validity of the removal order)
- Johnson v. Guzman Chavez, 141 S. Ct. 2271 (describing reinstatement procedures and explaining that withholding-only relief is country-specific and does not preclude execution of removal)
- Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir.) (defining “relief” broadly and holding reinstatement statute bars certain forms of redress like asylum)
- Trejo v. Garland, 3 F.4th 760 (5th Cir.) (treating certain BIA ineligibility determinations as final orders reviewable by the court of appeals)
- Bhaktibhai-Patel v. Garland, 32 F.4th 180 (2d Cir.) (holding a reinstatement decision may be final for § 1252 filing purposes)
- Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir.) (earlier Fifth Circuit decision discussing the nature of reinstatement orders and reviewability)