RICARDO BRAVO-BRAVO V. MERRICK GARLAND, No. 20-71042 (9th Cir. 2022)
Annotate this Case
Petitioner, a citizen of Mexico, became a lawful permanent resident in 1997. Subsequently, he was convicted of four separate crimes in Washington state, including the delivery of a controlled substance. At the time, this offense was an "aggravated felony." and therefore, Petitioner became removable. Petitioner was removed; however, he subsequently re-entered the United States. In 2016, the government detained Petitioner and reinstated his previous removal order.
In January 2017, Petitioner filed a petition for review of the reinstatement order, which was ultimately denied. While it was still pending, Petitioner filed a motion to reopen with the immigration judge. The immigration judge denied the motion, Petitioner unsuccessfully filed an administrative appeal to the Board of Immigration Appeals, and then appealed to the Ninth Circuit.
The Ninth Circuit denied Petitioner's petition for review, finding that 8 U.S.C. Sec. 1231(a)(5), generally bars reopening reinstated orders of removal and that Petitioner did not establish a "gross miscarriage of justice." The Ninth Circuit also held that the agency lacked authority to sua sponte reopen such reinstated removal orders.
Court Description: 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. 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 not trump an otherwise applicable statute unless the regulation’s enabling statute so provides.
The court issued a subsequent related opinion or order on December 2, 2022.
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.