Gutierrez-Gutierrez v. Garland, No. 18-2034 (8th Cir. 2021)
Annotate this Case
The Eighth Circuit denied petitions for review of the reinstatement of a 1998 removal order by the DHS and the denial of a motion to reopen the 1998 removal proceedings by the BIA. The court rejected petitioner's contention that his reinstated 1998 removal order was obtained in violation of his constitutional rights, because his counsel was ineffective. The court concluded that petitioner's contention is untimely because it was not raised within thirty days of the underlying removal order, as required by 8 U.S.C. 1252(b)(1). The court also concluded that there is substantial evidence supporting the existence of a prior removal order, and petitioner's reentry was unlawful because he reentered within ten years of his removal without the Attorney General's permission to reapply for admission.
The court concluded that the Board correctly determined that the immigration court lacked jurisdiction to reopen the 1998 proceedings. The court explained that an alien ordinarily has a right to file one motion to reopen within ninety days of a final removal order, but an alien forfeits that right by illegally reentering the country. Petitioner's motion also came well after the expiration of the ninety-day time limit for an alien’s motion. Finally, the court agreed with the Board that current law does not allow for a miscarriage-of-justice exception to the statutory prohibition on reopening a reinstated removal order.
Court Description: [Colloton, Author, with Arnold, and Kelly, Circuit Judges] Petition for Review - Immigration. The BIA did not err in reinstating petitioner's 1998 removal order; claim of ineffective assistance of counsel in the 1998 proceedings was untimely; there was substantial evidence supporting the existence of the prior removal order; petitioner's re-entry into the U.S. in May, 1998, was unlawful because he reentered within ten years of his removal without the Attorney General's permission to reapply for admission; the BIA correctly determined the immigration court lacked jurisdiction to reopen the 1998 proceeding; current law does not allow for a miscarriage-of-justice exception to the statutory prohibition on reopening a reinstated removal order.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.