Padilla Cuenca v. Barr, No. 16-72378 (9th Cir. 2019)Annotate this Case
8 U.S.C. 1231(a)(5) bars reopening a removal order that has been reinstated following an alien's unlawful reentry into the United States. Petitioner filed a motion to reopen his 2008 removal proceeding, which the IJ denied. The BIA then denied as moot petitioner's requests for equitable tolling and sua sponte reopening and dismissed his appeal.
The Ninth Circuit held that, because petitioner's 2008 removal order has been reinstated, the BIA properly concluded that section 1231(a)(5) deprived it of jurisdiction to entertain his motion to reopen. The panel explained that Morales-Izquierdo v. Gonzales, which stated that reinstatement creates no new obstacles to attacking the validity of a prior removal order, and Miller v Sessions, which held that an individual placed in reinstatement proceedings retains the right conferred by section 1229a(b)(5)(C)(ii), to seek rescission of an in absentia order, were materially distinguishable from petitioner's case. Finally, the panel rejected petitioner's claim that incompetence raised questions similar to abstentia, and noted that even this harsher legal regime offered avenues of relief. Accordingly, the court denied the petition for review of the BIA's decision.