Ricardo Bravo-Bravo v. Merrick Garland

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICARDO BRAVO-BRAVO, No. 20-71042 Petitioner, Agency No. v. A075-265-535 MERRICK B. GARLAND, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 15, 2022 * Seattle, Washington Filed July 18, 2022 Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and Karen K. Caldwell ** District Judge. Opinion by Judge Ikuta * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation. 2 BRAVO-BRAVO V. GARLAND SUMMARY *** Immigration Denying Ricardo Bravo-Bravo’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) 8 U.S.C. § 1231(a)(5), which generally bars reopening reinstated orders of removal, is not subject to an exception for removal orders that result in a gross miscarriage of justice; and 2) the agency lacks authority to reopen such reinstated removal orders sua sponte. Relying on Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020), the BIA concluded that the IJ lacked jurisdiction to reopen Bravo-Bravo’s removal order because the order had been reinstated under § 1231(a)(5). The panel explained that an alien may generally not reopen the reinstated prior removal order or proceeding, because the BIA must deny a motion to reopen for lack of jurisdiction under § 1231(a)(5), and this court will deny a petition to review that denial. Bravo-Bravo argued that the IJ had jurisdiction over his motion because an alien may collaterally challenge a removal order when it results in a gross miscarriage of justice. The panel concluded that this argument was not cognizable in the context of this current appeal, explaining that an alien may raise such a collateral attack, but only in a petition for review of a reinstatement proceeding or order. By contrast, as explained in Cuenca, Bravo-Bravo’s motion to reopen was barred by § 1231(a)(5) such that neither the IJ nor the BIA had jurisdiction over his collateral challenge. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BRAVO-BRAVO V. GARLAND 3 Second, Bravo-Bravo argued that, because the IJ had authority under a former regulation to “reopen or reconsider any case in which he or she has made a decision,” at any time, 8 C.F.R. § 1003.23(b)(1) (2020), the IJ retained such authority notwithstanding § 1231(a)(5). The panel disagreed, explaining that Cuenca read § 1231(a)(5) to unambiguously bar reopening a reinstated removal order and to divest the BIA of jurisdiction to reopen a removal proceeding after reinstatement. The panel further explained that, although the then-applicable regulation gave the agency the authority to reopen cases sua sponte, that regulation did not expressly provide that such authority overrode § 1231(a)(5). Nor could it, the panel observed, given that a regulation does …

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