NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ELIAS-RUIZ, No. 19-70799 19-70817 Petitioner, Agency No. A074-387-988 v. ROBERT M. WILKINSON, Acting MEMORANDUM* Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 4, 2021** Pasadena, California Before: TALLMAN and CALLAHAN, Circuit Judges, and CHRISTENSEN,*** District Judge. Jose Elias-Ruiz (“Elias”), a native and citizen of Mexico, petitions for review of two orders of the Board of Immigration Appeals (“BIA”) in this * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. consolidated case. He petitions for review of the BIA’s order dismissing his appeal from an immigration judge’s (“IJ”) denial of his motion to reopen his exclusion proceedings. He also petitions for review of the BIA’s order dismissing his appeal from an IJ’s decision denying his applications for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part and deny in part the petitions for review. 1. The BIA did not err in concluding that the IJ lacked jurisdiction over Elias’s motion to reopen his underlying exclusion proceedings. “Although we review the BIA’s denial of a motion to reopen for an abuse of discretion, purely legal questions receive de novo review.” Padilla Cuenca v. Barr, 956 F.3d 1079, 1084 (9th Cir. 2020) (citation omitted). While 8 U.S.C. § 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,” 8 U.S.C. § 1231(a)(5) “provides that an alien forfeits that right by reentering the country illegally.” Id. at 1085 (citations omitted). Elias argues that § 1231(a)(5) should not bar his application to reopen under § 1229a(c)(7) because § 1231(a)(5) does not bar applications to reopen based on a lack of notice under § 1229a(b)(5)(c)(ii) and both subsections of § 1229 do not impose time limits on filing. While Elias is correct that both subsections allow 2 filing at any time, applications to reopen based on a lack of notice under § 1229a(b)(5)(c)(ii) evade § 1231(a)(5)’s bar because of “potential due process concerns.” Miller v. Sessions, 889 F.3d 998, 1002–03 (9th Cir. 2018). Those due process concerns are not present here. Because Elias unlawfully reentered the United States in 1997 despite his prior removal order, he “forfeit[ed] the right to reopen under § 1229a(c)(7)” and is subject to “the less favorable legal regime” under § 1231(a)(5). Padilla Cuenca, 956 F.3d at 1087–88. Accordingly, the BIA correctly found that § 1231(a)(5) bars Elias from “reopen[ing] his prior removal order under § 1229a(c)(7).” Id. …
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