Salvador Tapia-Lemos v. Eric Holder, Jr., 696 F.3d 687

Tapia-Lemos entered illegally in 1992 and was removed to Mexico in 1997 after convictions for obstruction of justice and hit-and-run.
He had no colorable claim to entitlement to stay and did not seek review of the 1997 removal order.
Tapia reentered illegally, was removed again, then entered a third time by stealth; DHS reinstated the 1997 order in 2010 under 8 U.S.C. §§ 1228(b), 1231(a)(5).
Tapia sought judicial review challenging notice of counsel and whether the convictions fit the aggravated felonies statute; the reinstatement petition was dismissed as untimely.
He also challenged the agency’s denial of a motion to stay removal; court held there is no jurisdiction to review a removal-stay decision.
Tapia attempted to “reopen” the decision in 2011; the agency summarily rejected the request and the petition for review was dismissed for lack of jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of review for reinstated removal order	Tapia argues for review of reinstatement order timing.	Government contends review must be timely and petition untimely.	Petition dismissed for lack of jurisdiction due to timeliness.
Effect of the 2011 motion to reopen on jurisdiction	Tapia contends Chenery prevents dismissal; seeks reopening review.	Agency treated May 2011 document as stay/motion; not a valid §1229a reopening.	No jurisdiction to review; proper reopening would be under §1229a, not reinstatement.
Regulatory reopening vs. reinstatement authority	8 C.F.R. §103.5(a) allows reopening of any non‑IJ/BIA decision.	§1231(a)(5) reinstatement is not subject to reopening; regulation cannot override statute.	Regulation cannot countermand §1231(a)(5); reopening not permitted here.
Chenery doctrine applicability	Agency’s response should not bar review under Chenery.	Chenery does not cure jurisdictional time bar for review of reinstatement.	Chenery does not defeat jurisdiction; time bar remains dispositive.

Kucana v. Holder, 130 S. Ct. 827 (2010) (time limits for petitions to review are jurisdictional)
Stone v. INS, 514 U.S. 386 (1995) (true jurisdictional limits on review)
SEC v. Chenery Corp., 332 U.S. 194 (1947) (Chenery doctrine on agency action review)
SEC v. Chenery Corp., 318 U.S. 80 (1943) (Chenery principle origin)
Ponta-Garcia v. Attorney General, 557 F.3d 158 (3d Cir. 2009) (reinstatement/removal context in Third Circuit)
Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (reinstatement/removal framework considerations)
De Sandoval v. Attorney General, 440 F.3d 1276 (11th Cir. 2006) (reinstatement and review limitations)
Tapia-Lemos v. Holder, 636 F.3d 365 (7th Cir. 2011) (precedent on timeliness of reinstatement review)