51 F.4th 1191
10th Cir.2022Background
- In 1999 Javier Zapata-Chacon pleaded guilty in Colorado to possession of more than eight ounces of marijuana; an Immigration Judge ordered him removed and the order was executed that year.
- Mr. Zapata-Chacon illegally reentered the United States three times after his 1999 removal; INS reinstated his 1999 removal order after a 2005 illegal reentry and removed him again that year.
- In 2020 he filed a motion to reconsider, arguing his Colorado marijuana conviction was not a categorical match to a federal “controlled substance offense” because Colorado’s statutory definition was broader than the federal definition.
- The IJ denied the motion as untimely, refused equitable tolling, and declined sua sponte reconsideration; the BIA adopted and affirmed the IJ’s decision without invoking 8 U.S.C. § 1231(a)(5).
- The Government raised § 1231(a)(5) for the first time in a Rule 28(j) letter to this court, arguing that an alien who illegally reenters is barred from reopening or obtaining relief and that the BIA lacked authority to consider the motion.
- The Tenth Circuit held § 1231(a)(5) clearly strips the BIA of authority to review or grant any relief under the Immigration and Nationality Chapter after illegal reentry and denied the petition for review as remand would be futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8 U.S.C. § 1231(a)(5) bars the BIA from reviewing or granting relief after an alien illegally reenters | Zapata-Chacon: § 1231(a)(5) does not apply because he filed a motion to reconsider (not reopen) and his order was not reinstated after the most recent reentry | Government: § 1231(a)(5) precludes reopening, agency review, and any relief once an alien illegally reenters (reinstatement in 2005 triggered the bar) | Court: § 1231(a)(5) bars agency review and relief after illegal reentry; petition denied |
| Whether the Government may raise § 1231(a)(5) belatedly via Rule 28(j) | Zapata-Chacon: improper to raise new, long-available argument by Rule 28(j) | Government: jurisdictional defects may be asserted at any time; § 1231(a)(5) is jurisdiction-stripping | Court: considered the argument; jurisdictional nature permits late invocation and remand would be futile |
| Whether classifying the filing as a motion to reconsider (vs. motion to reopen) avoids § 1231(a)(5) | Zapata-Chacon: reconsideration differs and should not be barred | Government: regardless of label, § 1231(a)(5) prevents review and relief; reconsideration necessarily seeks review/relief | Court: classification does not avoid § 1231(a)(5); the statutory bar applies to review and relief |
Key Cases Cited
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (interpreting § 1231(a)(5) to insulate reinstated removal orders from review and foreclose discretionary relief after illegal reentry)
- Tarango-Delgado v. Garland, 19 F.4th 1233 (10th Cir. 2021) (applied § 1231(a)(5) to hold BIA lacked authority to reopen removal order after illegal reentry)
- Berdiev v. Garland, 13 F.4th 1125 (10th Cir. 2021) (standard of review for BIA decisions on motions to reopen/reconsider)
- Gutierrez-Zavala v. Garland, 32 F.4th 806 (9th Cir. 2022) (remand futility doctrine when governing law compels a particular agency result)
- NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969) (remand is unnecessary where it would be an idle and useless formality)
- Tapia-Lemos v. Holder, 696 F.3d 687 (7th Cir. 2012) (noting § 1231(a)(5)’s purpose to expedite re-removal of illegal reentrants)
- Lorenzo v. Mukasey, 508 F.3d 1278 (10th Cir. 2007) (discussed in context of judicial-review limitations; cited by amici)