FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALFONSO PADILLA CUENCA, No. 16-72378 Petitioner, Agency No. v. A088-890-971 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 11, 2019 San Francisco, California Filed November 13, 2019 Before: Mary M. Schroeder and Milan D. Smith, Jr., Circuit Judges, and Douglas L. Rayes, * District Judge. Opinion by Judge Rayes * The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. 2 PADILLA CUENCA V. BARR SUMMARY ** Immigration Denying Fernando Padilla Cuenca’s petition for review of a decision of the Board of Immigration Appeals, the panel held that 8 U.S.C. § 1231(a)(5), which empowers an immigration officer to reinstate a prior removal order, permanently bars reopening of the prior removal order under 8 U.S.C. § 1229a(c)(7). After being physically removed pursuant to an immigration judge’s order of removal in 2008, Padilla unlawfully reentered the United States. Thereafter, the Department of Homeland Security (“DHS”) apprehended Padilla and proceeded to reinstate his prior removal order. DHS did not execute the reinstated order, however, because an immigration officer determined that Padilla had a reasonable fear of persecution and torture if removed to Mexico and referred his case to Immigration Court for withholding of removal proceedings. Despite his ongoing withholding of removal proceeding, Padilla sought to reopen his 2008 removal proceeding in order to apply for asylum, which offers broader protection than withholding. He filed a motion to reopen pursuant to 8 U.S.C. § 1229a(c)(7), which allows an alien to move to reopen his removal proceeding within 90 days of a final removal order based on new, material facts that could not have been discovered or presented at the original hearing. As relevant here, Padilla contended that his underlying ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PADILLA CUENCA V. BARR 3 removal proceedings violated due process because he was not mentally competent to represent himself. However, the BIA concluded that 8 U.S.C. § 1231(a)(5), which provides for reinstatement of a prior order and states that the prior order “is not subject to be reopened or reviewed,” barred reopening of Padilla’s 2008 order because it had been reinstated. The panel held that the language of § 1231(a)(5) unambiguously and permanently bars reopening a reinstated prior removal order, noting that the Fifth and Seventh Circuits likewise interpreted the statute as a permanent bar. The panel also explained that this plain reading of the statute comports with the statute’s clear Congressional purpose: expanding the types of orders that can be reinstated and limiting the relief available to aliens whose orders have been reinstated. Explaining that § 1231(a)(5) provides that an alien forfeits the right to file a motion to reopen by reentering the country illegally, the panel rejected Padilla’s contention that a strict reading of ...
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