Dada, 554 U.S. at 4–5. But, as the
Fifth Circuit explained, § 1231(a)(5) “provides that an alien
forfeits that right by reentering the country illegally. That is
the clear import of the statute’s unambiguous text.”
Rodriguez-Saragosa, 904 F.3d at 354 (emphasis in
original).>
A clean copy of the amended opinion is attached to this
order.
With the foregoing amendment, the pending petition for
panel rehearing is DENIED. (Dkt. No. 63.) The full court
has been advised of the petition for rehearing en banc, and
no judge of the court has requested a vote on it. Fed. R. App.
P. 35. Therefore, the petition for rehearing en banc is also
DENIED. (Dkt. No. 63.) No further petitions for panel
rehearing or rehearing en banc will be entertained.
OPINION
RAYES, District Judge:
Generally, when an alien is ordered removed from the
United States, he may move to reopen his removal
proceeding within 90 days of entry of the final removal order
based on new, material facts that could not have been
discovered or presented at the original removal hearing.
8 U.S.C. § 1229a(c)(7). “The motion to reopen is an
‘important safeguard’ intended ‘to ensure a proper and
lawful disposition’ of immigration proceedings.” Kucana v.
Holder, 558 U.S. 233, 242 (2010) (quoting Dada v.
Mukasey,
554 U.S. 1, 18 (2008)). If, however, an alien who
has been removed pursuant to a removal order takes matters
PADILLA CUENCA V. BARR 7
into his own hands and unlawfully reenters the United States,
another provision of the Immigration and Nationality Act
(“INA”) empowers an immigration officer to reinstate the
prior removal order, at which point it “is not subject to being
reopened[.]” 8 U.S.C. § 1231(a)(5). The question presented
in this case is whether § 1231(a)(5) permanently bars
reopening under § 1229a(c)(7), or whether the bar applies
only during the reinstatement process. We conclude that an
alien whose removal order is reinstated pursuant to
§ 1231(a)(5) may not reopen the prior removal proceeding
under § 1229a(c)(7). The bar is a consequence of having
reentered unlawfully.
I. Background
Petitioner Alfonso Padilla Cuenca (“Padilla”) is a native
Mexican citizen who arrived in the United States on
December 1, 1997, without being admitted or paroled. The
Department of Homeland Security (“DHS”) initiated
removal proceedings against Padilla on August 25, 2008.
Padilla appeared without counsel in the Immigration Court
in Eloy, Arizona on September 15, 2008. There, an
Immigration Judge (“IJ”) advised Padilla of his right to
counsel, but Padilla waived that right, admitted the
allegations against him, conceded removability, and waived
his right to apply for relief. By order of the IJ, Padilla was
physically removed to Mexico on November 28, 2008, but
he unlawfully reentered the United States the following
month.
DHS apprehended Padilla in 2015 and proceeded to
reinstate his prior removal order, a multistep process that
first requires an immigration officer to obtain the prior
removal order related to the alien, confirm that the alien
under consideration and the alien previously removed are
one and the same, and confirm that the alien unlawfully
8 PADILLA CUENCA V. BARR
reentered the United States. If the immigration officer
determines that an alien qualifies for reinstatement, the
officer then must give the alien written notice of his
determination and provide the alien with an opportunity to
make a statement contesting it. If these requirements are
met, the alien’s prior removal order is reinstated, and he may
again be removed. 8 C.F.R. § 241.8(a)–(c).
Here, DHS served Padilla with a Form I-871 Notice of
Intent/Decision to Reinstate Prior Order (“Notice”) on May
13, 2015. The Notice charged that Padilla is removable as
an alien who unlawfully reentered the United States after
previously being removed. Padilla signed and fingerprinted
the Notice and indicated that he did not wish to make a
statement contesting DHS’s determination. Consequently,
DHS reinstated Padilla’s 2008 removal order.
DHS has not executed the reinstated removal order,
however, because it determined that Padilla established a
reasonable fear that he will be persecuted and tortured due
to his mental illness if removed to Mexico. Padilla has a
history of mental health problems, and formally was
diagnosed with Schizoaffective Disorder, Depressive Type
in October 2015. Under agency regulations, if an alien
asserts a fear of returning to the country designated in his
reinstated removal order, he is referred to an asylum officer
who must then determine whether the alien has a reasonable
fear of persecution or torture. 8 C.F.R. § 241.8(e). If the
officer finds the alien’s fear to be reasonable, the case is
referred to an IJ “for full consideration of the request for
withholding of removal only.” 8 C.F.R. § 208.31(e). DHS
accordingly referred Padilla to the Immigration Court in San
Francisco, California for withholding of removal
proceedings, where an IJ determined that Padilla is mentally
incompetent to represent himself and ordered appointment
PADILLA CUENCA V. BARR 9
of counsel. This withholding of removal proceeding remains
pending, and Padilla cannot be removed to Mexico until it
concludes.
Aided by counsel, Padilla filed a motion to reopen his
2008 removal proceeding pursuant to § 1229a(c)(7) on
November 2, 2015. Padilla argued that the 90-day deadline
for filing a motion to reopen should be equitably tolled, the
IJ should reopen his 2008 removal proceeding sua sponte,1
reopening his 2008 removal proceeding is an appropriate
safeguard to protect his due process rights, and he is prima
facie eligible for asylum. At bottom, Padilla contends that
his 2008 removal proceeding violated his due process rights
because he was not competent to represent himself.
Therefore, the IJ should not have accepted his admission of
removability and instead should have appointed him
counsel. 2 Padilla seeks to reopen his 2008 removal
proceeding in order to apply for asylum, which offers
broader protection than withholding of removal.
The IJ denied Padilla’s motion, finding principally that
§ 1231(a)(5) divested the IJ of jurisdiction to reopen the
2008 removal proceeding because DHS reinstated Padilla’s
removal order. Alternatively, the IJ addressed the merits of
Padilla’s motion to reopen and, for reasons not relevant here,
concluded that the motion was untimely and equitable tolling
unavailable, Padilla was not prima facie eligible for asylum,
1
Under 8 C.F.R. § 1003.2(a), the BIA may at any time reopen
removal proceedings sua sponte.
2
Agency regulations preclude an IJ from accepting “an admission
of removability from an unrepresented respondent who is incompetent.”
8 C.F.R. § 1240.10(c).
10 PADILLA CUENCA V. BARR
and exceptional circumstances did not warrant reopening
Padilla’s 2008 removal proceeding sua sponte.
Padilla appealed the IJ’s decision to the BIA. Along with
re-arguing the merits of his motion to reopen, Padilla argued
that the IJ erred in his jurisdictional analysis because
§ 1231(a)(5) bars reopening only during the reinstatement
process, and Padilla now is in a separate withholding of
removal proceeding. The BIA agreed with the IJ, however,
that § 1231(a)(5) barred reopening Padilla’s 2008 removal
proceeding because DHS reinstated Padilla’s removal order.
It therefore denied as moot Padilla’s requests for equitable
tolling and sua sponte reopening and dismissed his appeal.
Padilla timely petitioned this Court for review of the
BIA’s decision. He again argues that § 1231(a)(5) bars
reopening only during the reinstatement process itself, and
that the BIA should not have dismissed his appeal because
he now is in a separate withholding of removal proceeding.
II. Jurisdiction and Standard of Review
We have jurisdiction to review the BIA’s dismissal order
pursuant to 8 U.S.C. § 1252. Although we review the BIA’s
denial of a motion to reopen for an abuse of discretion,
purely legal questions receive de novo review. See Cano-
Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). Whether
§ 1231(a)(5) permanently bars reopening under
§ 1229a(c)(7) is a question of law that we review de novo.
III. Analysis
“[T]he starting point for interpreting a statute is the
language of the statute itself.” Olympic Forest Coal. v.
Coast Seafoods Co., 884 F.3d 901, 905 (9th Cir. 2018)
(quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
PADILLA CUENCA V. BARR 11
Found., Inc., 484 U.S. 49, 56 (1987)). Section 1231(a)(5)
states:
If the Attorney General finds that an alien has
reentered the United States illegally after
having been removed or having departed
voluntarily, under an order of removal, the
prior order of removal is reinstated from its
original date and is not subject to be reopened
or reviewed, the alien is not eligible and may
not apply for any relief under this chapter,
and the alien shall be removed under the prior
order at any time after the reentry.
We read this language to unambiguously bar reopening a
reinstated prior removal order. The Fifth and Seventh
Circuits likewise have concluded that § 1231(a)(5)
permanently bars reopening. See Rodriguez-Saragosa v.
Sessions, 904 F.3d 349, 354 (5th Cir. 2018) (noting that the
“unambiguous text” of § 1231(a)(5) “deprive[s] the BIA of
authority to reopen” removal proceedings after the removal
order has been reinstated); Cordova-Soto v. Holder,
732 F.3d 789, 793 (7th Cir. 2013) (“[Section] 1231(a)(5)
bars reopening of a removal order that has been reinstated
after the alien’s illegal return to the United States.”). And in
unpublished decisions this Court repeatedly has interpreted
§ 1231(a)(5) as divesting the BIA of jurisdiction to reopen a
removal proceeding after reinstatement of the underlying
removal order. See, e.g., Monroy-Martinez v. Whitaker,
749 F. App’x 578, 579 (9th Cir. 2019); Rodarte-Gonzalez v.
Sessions, 736 F. App’x 708, 709 (9th Cir. 2018); Cobos-
Luna v. Boente, 678 F. App’x 498, 499 (9th Cir. 2017);
Escobedo-Fernandez v. Holder, 504 F. App’x 568, 568 (9th
Cir. 2013).
12 PADILLA CUENCA V. BARR
This plain reading of § 1231(a)(5) as instituting a
permanent jurisdictional bar also comports with the statute’s
“clear Congressional purpose[.]” Rodriguez-Saragosa,
904 F.3d at 354. Reinstatement once applied only to “a
limited class of illegal reentrants,” and “the rest got the
benefit of the ordinary deportation rules.” Fernandez-
Vargas v. Gonzales,
548 U.S. 30, 33–34 (2006). In 1996,
however, Congress enacted the Illegal Immigration Reform
and Immigrant Responsibility Act (“IIRIRA”), which
replaced the old reinstatement provision “with one that toed
a harder line[.]”
Id. at 34. The revisions applied
reinstatement to all illegal reentrants, “expanded the types of
orders that can be reinstated and limited the relief available
to aliens whose orders are reinstated.” Padilla v. Ashcroft,
334 F.3d 921, 924 (9th Cir. 2003). Section 1231(a)(5)
establishes a process to expeditiously remove an alien who
already is subject to a removal order, thereby denying the
alien “any benefits from his latest violation of U.S. law[.]”
Morales-Izquierdo v. Gonzales,
486 F.3d 484, 498 (9th Cir.
2007) (en banc). “The text of the statute does not allow room
for avoiding this clear purpose.”
Cordova-Soto, 732 F.3d at
794.
Padilla, however, contends that a strict reading of
§ 1231(a)(5) would create a conflict with § 1229a(c)(7) by
eviscerating an alien’s right to file a motion to reopen. We
disagree. Section 1229a(c)(7) “provides that every alien
ordered removed from the United States has a right to file
one motion to reopen his or her removal proceedings.”
Dada, 554 U.S. at 4–5. But, as the Fifth Circuit explained,
§ 1231(a)(5) “provides that an alien forfeits that right by
reentering the country illegally. That is the clear import of
the statute’s unambiguous text.”
Rodriguez-Saragosa,
904 F.3d at 354 (emphasis in original).
PADILLA CUENCA V. BARR 13
Padilla’s principal argument against a plain reading of
§ 1231(a)(5) is that our decisions in Morales-Izquierdo and
Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018), imposed a
temporal limit on the bar to reopening. For example, Padilla
highlights language from Morales-Izquierdo that
reinstatement “creates no new obstacles to attacking the
validity of the removal order,” and that § 1231(a)(5)
precludes reopening or review of the prior removal order
“during the course of the reinstatement
process.” 486 F.3d
at 498. He also points to language in Miller that “an
individual placed in reinstatement proceedings under
§ 1231(a)(5) cannot as a general rule challenge the validity
of the prior removal order in the reinstatement proceeding
itself.” 889 F.3d at 1002. According to Padilla, these
decisions imply that § 1231(a)(5) bars reopening only during
the time an immigration officer spends complying with
§ 241.8’s prerequisites to reinstatement, but once the prior
removal order has been reinstated the bar to reopening is
lifted. Padilla argues that, at the very least, § 1231(a)(5)
does not bar reopening a prior removal order once an alien
is placed into withholding of removal proceedings.
This latter argument is foreclosed by our decision in
Padilla-Ramirez v. Bible, in which we explained that
“[w]ithholding-only proceedings do not . . . purport to
override section 1231(a)(5)’s prohibition on reopening or
reviewing a prior removal order.” 882 F.3d 826, 832 (9th
Cir. 2017). And although Morales-Izquierdo and Miller
each contain language favorable to Padilla’s broader
argument when read in isolation, the specific factual and
procedural contexts of these decisions are materially
distinguishable from Padilla’s case.
Morales-Izquierdo came to this Court as a petition for
review of a reinstatement order itself, not from the denial of
14 PADILLA CUENCA V. BARR
a motion to reopen. 486 F.3d at 489. The petitioner,
Morales, had unlawfully entered the United States in 1994
and subsequently was ordered removed in absentia.
Id. at
488. Morales claimed, however, that he never received
notice of the hearing date.
Id. He later unlawfully reentered
the United States and his prior removal order was reinstated.
Id. at 489. Morales raised numerous challenges to the
reinstatement order and process. Of relevance here, he
argued “that a removal order may not constitutionally be
reinstated if the underlying removal proceeding itself
violated due process,” and that his underlying removal
proceeding violated due process because it was conducted in
absentia without notice to him.
Id. at 495–97. We rejected
this argument and held that “[r]einstatement of a prior
removal order—regardless of the process afforded in the
underlying order—does not offend due process because
reinstatement of a prior order does not change the alien’s
rights or remedies.”
Id. at 497. We explained:
The only effect of the reinstatement order is
to cause Morales’ removal, thus denying him
any benefits from his latest violation of U.S.
law, committed when he reentered the United
States without the Attorney General’s
permission . . . . The reinstatement order
imposes no civil or criminal penalties,
creates no new obstacles to attacking
the validity of the removal order, see,
e.g., INA § 240(b)(5)(C)(ii), 8 U.S.C.
§ 1229a(b)(5)(C)(ii) (allowing reopening of a
removal order based on lack of notice), and
does not diminish the petitioner’s access to
whatever path for lawful entry into the United
States might otherwise be available to him
under the immigration laws.
PADILLA CUENCA V. BARR 15
Id. at 497–98 (emphasis in original).
In observing that reinstatement “creates no new
obstacles to attacking the validity of the removal order,” we
explicitly referred to § 1229a(b)(5)(C)(ii) as an avenue of
relief potentially available to Morales. Id. at 498. That
provision establishes a procedure, separate from the general
motion-to-reopen 90-day limitation in § 1229a(c)(7), by
which an alien may seek rescission of a removal order
entered in absentia based on a claim of lack of notice. 3
Reinstatement does not take that away. Morales, however,
had not availed himself of this procedure, and we concluded
that § 1231(a)(5) barred him from raising such a challenge
in the reinstatement proceeding itself.
Id. at 496 n.13.
Miller came to this Court as a petition for review of the
BIA’s denial of a motion to reopen. 889 F.3d at 1001. The
petitioner, Miller, was ordered removed in absentia and later
claimed that she had not received notice of the removal
hearing.
Id. at 1000. After her removal order was reinstated,
Miller sought to reopen her removal proceeding pursuant to
§ 1229a(b)(5)(C)(ii).
Id. at 1001. The BIA determined,
however, that it lacked jurisdiction to reopen Miller’s prior
removal order because it had been reinstated.
Id. We
disagreed with the BIA and explained that Morales-
Izquierdo “construed § 1231(a)(5) as preserving a non-
citizen’s right to file a motion to reopen under
§ 1229a(b)(5)(C)(ii).”
Id. at 1002. Thus, we held that “an
individual placed in reinstatement proceedings under
§ 1231(a)(5) cannot as a general rule challenge the validity
3
Notably, earlier in the decision we observed that § 1231(a)(5)
“specifically precludes Morales from seeking to reopen the previous
removal order based on defective service or any other grounds.”
Morales-Izquierdo, 486 F.3d at 496.
16 PADILLA CUENCA V. BARR
of the prior removal order in the reinstatement proceeding
itself. But she retains the right conferred by
§ 1229a(b)(5)(C)(ii), to seek rescission of a removal order
entered in absentia, based on lack of notice, by filing a
motion to reopen ‘at any time.’”
Id. at 1002–03 (quoting
Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004) (per
curiam)) (emphasis added).
Unlike Morales-Izquierdo and Miller, Padilla’s
underlying removal order was not entered in absentia.
Padilla received far more process than did the petitioners in
either of those cases. He received notice of and appeared at
the original removal hearing, was advised of and waived his
right to counsel, and conceded removability.
Furthermore, unlike Morales-Izquierdo, Padilla petitions
for review of the BIA’s denial of his motion to reopen, not
for review of the reinstatement order itself. 4 Thus, Padilla’s
case procedurally is more akin to Miller. But unlike Miller,
Padilla’s motion to reopen was not filed pursuant to
§ 1229a(b)(5)(C)(ii), and Padilla can point to no specific
statutory provision separate from § 1229a(c)(7) that confers
upon him the right to reopen his prior removal proceeding
4
For this reason, we reject the Government’s argument that
Morales-Izquierdo requires denial of Padilla’s petition because
reinstatement of a prior removal order does not violate due process
regardless of the process afforded in the underlying removal proceeding.
Padilla’s petition comes to us in a different procedural posture than
Morales-Izquierdo. He is not presently challenging the reinstatement
order, nor could he at this time. “[W]here an alien pursues reasonable
fear withholding of removal proceedings following the reinstatement of
a prior removal order, the reinstated removal order does not become final
until the reasonable fear of persecution and withholding of removal
proceedings are complete.” Ortiz-Alfaro v. Holder, 694 F.3d 955, 958
(9th Cir. 2012).
PADILLA CUENCA V. BARR 17
despite § 1231(a)(5)’s plain command. See Rodriguez-
Saragosa, 904 F.3d at 355.
Suggesting incompetence raises questions similar to
absentia, Padilla invokes the principle of constitutional
avoidance to contend that we must allow reopening so as to
avoid a result that would require him to remain in Mexico in
order to challenge the original removal, which thereby
creates constitutional questions. This, however, is a
misapplication of the canon of constitutional avoidance.
“The canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis, the
statute is found susceptible of more than one construction;
and the canon functions as a means of choosing between
them.” Clark v. Martinez, 543 U.S. 371, 385 (2005)
(emphasis in original). Section 1231(a)(5)’s command is
clear and its results intended. As the Supreme Court
explained in Fernandez-Vargas, § 1231(a)(5) “explicitly
insulates the [underlying] removal orders from review, and
generally forecloses discretionary relief from the terms of
the reinstated
order.” 548 U.S. at 35. Though the
reinstatement provision “does not penalize an alien for the
reentry,” it “subjects him to [a] new and less generous legal
regime” because of his continued unlawful presence, which
is “an indefinitely continuing violation that the alien himself
could end at any time by voluntarily leaving the country.”
Id. at 44; see also
Morales-Izquierdo, 486 F.3d at 498
(“While aliens have a right to fair procedures, they have no
constitutional right to force the government to re-adjudicate
a final removal order by unlawfully reentering the
country.”);
Cordova-Soto, 732 F.3d at 794 (“Congress made
a reasonable and understandable choice to provide that an
alien who is removed . . . should not be able to engage in
unlawful self-help by simply sneaking back into the
country.”).
18 PADILLA CUENCA V. BARR
Moreover, even this harsher legal regime offers avenues
of relief. For example, notwithstanding § 1231(a)(5)’s bar
on any relief, “withholding of removal and [Convention
Against Torture] protection[s] are available to individuals in
reinstatement proceedings.” Perez-Guzman v. Lynch,
835 F.3d 1066, 1075 (9th Cir. 2016); see 8 C.F.R.
§§ 208.16(c)(4), 208.31(e). We also have recognized that
reinstatement does not insulate a prior removal order from
review under all circumstances. Rather, § 1252(a)(2)(D)
“permits some collateral attack on the underlying removal
order during review of the reinstatement order if the
petitioner can show that he has suffered a ‘gross miscarriage
of justice’ in the initial deportation proceeding.” Garcia de
Rincon v. Dep’t of Homeland Sec.,
539 F.3d 1133, 1138 (9th
Cir. 2008) (quoting Debeato v. Att’y Gen. of the United
States,
505 F.3d 231, 235 (3d Cir. 2007)). What Padilla
cannot do, however, is reopen his prior removal order under
§ 1229a(c)(7). Forfeiture of the right to reopen under
§ 1229a(c)(7) is part of the less favorable legal regime to
which Padilla is now subject by unlawfully reentering and
remaining in the United States despite his prior removal
order. 5
5
Another example is forfeiture of the right to apply for asylum.
Perez-Guzman, 835 F.3d at 1081. When an alien subject to a reinstated
removal order professes a reasonable fear of returning to the country
designated in his reinstated removal order, the IJ is limited to
adjudicating only his eligibility for withholding of removal. 8 C.F.R.
§ 208.31(e), (g)(2)(i). Yet under Padilla’s argument, once in
withholding of removal proceedings an alien could move to reopen his
underlying removal order so that he could then apply for asylum,
effectively eviscerating this limitation. This anomaly further undermines
Padilla’s argument.
PADILLA CUENCA V. BARR 19
IV. Conclusion
In this precedential opinion, we join the Fifth and
Seventh Circuits in concluding that § 1231(a)(5) bars
reopening a removal order that has been reinstated following
an alien’s unlawful reentry into the United States. Because
Padilla’s 2008 removal order has been reinstated, the BIA
properly concluded that § 1231(a)(5) deprived it of
jurisdiction to entertain Padilla’s motion to reopen.
PETITION DENIED.
