RICARDO BRAVO-BRAVO V. MERRICK GARLAND, No. 20-71042 (9th Cir. 2022)
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Petitioner sought review of an opinion by the Board of Immigration Appeals (BIA), which upheld a decision by the immigration judge (IJ) denying his motion to reopen his prior removal proceedings. Petitioner 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 Ninth Circuit filed: 1) an order amending the opinion filed July 18, 2022; and 2) an amended opinion denying Petitioner’s petition.
The court held that: 1) 8 U.S.C. Section 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. 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. 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 Section 1231(a)(5). Nor could it, the panel observed, given that a regulation does not trump an otherwise applicable statute unless the regulation’s enabling statute so provides.
This opinion or order relates to an opinion or order originally issued on July 18, 2022.
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