19 F.4th 1233
10th Cir.2021Background
- Tarango-Delgado, a Mexican national and long‑time lawful permanent resident, had two prior convictions: second‑degree burglary (1997) and aggravated animal cruelty (2015, felony) to which he pleaded guilty without immigration consequences advisement.
- In 2017 the government initiated removal proceedings; an IJ denied his application for cancellation of removal and he did not appeal; he was removed in November 2017.
- While removed, Tarango‑Delgado obtained state‑court vacatur of the 2015 conviction (ineffective assistance/Padilla), which reinstated the underlying charge.
- He filed a first motion to reopen (arguing equitable tolling and sua sponte reopening); the IJ and BIA denied it. Shortly after that denial he reentered the U.S. illegally and DHS reinstated his prior removal order.
- He sought CAT protection (referred by asylum officer) but was denied. After pleading guilty in state court to a misdemeanor animal‑cruelty charge (removing the moral‑turpitude predicate), he filed a second motion to reopen. The BIA denied, concluding 8 U.S.C. § 1231(a)(5) barred reopening because of his illegal reentry.
- The Tenth Circuit affirmed, holding § 1231(a)(5) unambiguously precludes reopening for aliens who illegally reenter after removal and rejecting arguments for exceptions or equitable/nunc pro tunc relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8 U.S.C. § 1231(a)(5) bars reopening of a prior removal order after the alien illegally reentered | Tarango‑Delgado: statute should not bar reopening here because his conviction was later vacated and he seeks reopening to remedy that vacancy | Government: § 1231(a)(5) unambiguously bars reopening when an alien illegally reenters after removal | Held: § 1231(a)(5) unambiguously bars reopening after illegal reentry; affirmance granted |
| Whether a "gross‑miscarriage‑of‑justice" exception allows review despite § 1231(a)(5) | Tarango‑Delgado: extraordinary injustice (invalid original proceeding) should permit reopening | Government: no such exception in § 1231(a)(5); statute’s text is mandatory | Held: Court declines to create exception; even under Ninth Circuit test Tarango‑Delgado fails because removal was valid at time executed |
| Whether application of § 1231(a)(5) is unconstitutional as applied (deprives right to reopen) | Tarango‑Delgado: statute effectively deprives him of ability to vindicate rights, forcing life‑risk choice to remain abroad | Government: he forfeited reopening rights by illegally reentering; he could have pursued claims from abroad or sought asylum lawfully | Held: As‑applied challenge fails; denying reopening after illegal reentry is constitutional |
| Whether nunc pro tunc or equitable relief can avoid § 1231(a)(5) bar | Tarango‑Delgado: court can grant nunc pro tunc relief to treat first motion denial as wrongful and reach pre‑reentry date | Government: nunc pro tunc is equitable and barred by his unclean hands (illegal reentry) | Held: Nunc pro tunc cannot save his claim; illegal reentry precludes equitable relief |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise client on deportation consequences of guilty plea)
- Sanchez‑Gonzalez v. Garland, 4 F.4th 411 (6th Cir. 2021) (interpretation that § 1231(a)(5) bars reopening after illegal reentry)
- Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020) (§ 1231(a)(5) limits relief for illegal reentrants)
- Gutierrez‑Gutierrez v. Garland, 991 F.3d 990 (8th Cir. 2021) (rejecting collateral review after illegal reentry)
- Rodriguez‑Saragosa v. Sessions, 904 F.3d 349 (5th Cir. 2018) (illegal reentry forfeits reopening)
- Cordova‑Soto v. Holder, 732 F.3d 789 (7th Cir. 2013) (statutory bar is mandatory and related to fugitive‑disentitlement principles)
- Fernandez‑Vargas v. Gonzales, 548 U.S. 30 (2006) (context on Congressional tightening of reinstatement for reentrants)
- Waugh v. Holder, 642 F.3d 1279 (10th Cir. 2011) (post‑conviction motions do not vitiate finality for removal unless convictions are overturned before removal)
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (actual‑innocence gateway in habeas context)
- Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) (discussion of nunc pro tunc equitable relief in immigration matters)