Appellate Case: 20-9645 Document: 010110758299 Date Filed: 10/25/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS October 25, 2022 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ JAVIER ZAPATA-CHACON, Petitioner, v. No. 20-9645 MERRICK B. GARLAND, United States Attorney General, Respondent. ----------------------------- NATIONAL IMMIGRATION LITIGATION ALLIANCE, Amicus Curiae. _________________________________ Petition for Review of an Order from the Board of Immigration Appeals _________________________________ Hans Meyer, Meyer Law Office P.C. (Andrew Bramante with him on the briefs), Denver, Colorado, for Petitioner. Timothy G. Hayes, Office of Immigration Litigation (Brian Boynton, Acting Assistant Attorney General, Civil Division; and Cindy S. Ferrier, Office of Immigration Litigation, with him on the brief), Washington, D.C., for Respondent. Kristin Macleod-Ball and Trina Realmuto, National Immigration Litigation Alliance, Brookline, Massachusetts, filed an amicus brief on behalf of the National Immigration Litigation Alliance. _________________________________ Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges. Appellate Case: 20-9645 Document: 010110758299 Date Filed: 10/25/2022 Page: 2 _________________________________ McHUGH, Circuit Judge. _________________________________ In 1999, Javier Zapata-Chacon, then a conditional permanent resident, admitted his removability based on a Colorado conviction for possession of marihuana. An Immigration Judge (“IJ”) ordered Mr. Zapata-Chacon removed and a final administrative order issued and was executed that same year. Since his removal, Mr. Zapata-Chacon has illegally reentered the United States on three occasions. In 2020, Mr. Zapata-Chacon filed a motion to reconsider the 1999 removal order, arguing his possession of marihuana conviction was not a categorical match to a federal “controlled substance offense” because Colorado’s definition of marihuana used broader language than the federal definition. An IJ denied the motion. The Board of Immigration Appeals (“BIA”) adopted and affirmed the IJ’s denial, and Mr. Zapata-Chacon filed this petition for review. With the petition pending before this court, the Government, through a letter pursuant to Federal Rule of Appellate Procedure 28(j), contends for the first time that the IJ and the BIA lack authority to reopen or review Mr. Zapata-Chacon’s proceeding based on him having illegally reentered the United States. We conclude 8 U.S.C. § 1231(a)(5) clearly strips the BIA of authority to review a prior order of removal or to grant any relief provided by the Immigration and Nationality Chapter of Title 8 once a removed alien illegally reenters the United States. Accordingly, we deny Mr. Zapata-Chacon’s petition for review. 2 Appellate Case: 20-9645 Document: 010110758299 Date Filed: 10/25/2022 Page: 3 I. BACKGROUND Mr. Zapata-Chacon was born in Mexico. It appears from the record that he entered the United States by 1994. In May 1996, Mr. Zapata-Chacon married Genoveva Perez, a United States citizen. Based on his marriage, Mr. Zapata-Chacon obtained conditional lawful permanent resident status in the United States. In 1998, a Denver police officer observed Mr. Zapata-Chacon in possession of a ziplock bag with “suspected cocaine powder” from which Mr. Zapata-Chacon “snort[ed]” some of the powder before stuffing the ziplock bag into “the fly portion of his pants.” A.R. at 175. Officers arrested Mr. Zapata-Chacon. Mr. Zapata-Chacon pleaded …
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