JOSE GUTIERREZ-ZAVALA V. MERRICK GARLAND, No. 20-73398 (9th Cir. 2022)
Annotate this Case
Petitioner, a native and citizen of Mexico, seeks review of a Board of Immigration Appeals (“BIA”) decision denying his untimely motion to reopen his removal proceedings. Although the BIA denied relief on the merits, the BIA lacked jurisdiction to consider Petitioner’s motion to reopen because he was subject to a reinstated prior removal order.
The Ninth Circuit held that it can deny Petitioner’s petition for review based on the BIA’s lack of jurisdiction. The court held that under the Chenery doctrine, the court’s review is typically limited to the grounds upon which the agency relied and that the court should generally remand to the agency. However, the court concluded that the considerations underlying the Chenery doctrine did not apply because the BIA was required to deny Petitioner’s motion for lack of jurisdiction. Thus, the court concluded that it need not remand for the agency to reach the same conclusion on the BIA’s jurisdiction. Finally, the court noted that denying the petition was consistent with the court’s precedents.
Court Description: Immigration. Denying Jose Gutierrez-Zavala’s petition for review of a decision of the Board of Immigration Appeals denying a motion to reopen, the panel held that this court may deny a petition for review based on the BIA’s lack of jurisdiction under 8 U.S.C. § 1231(a)(5), even when the BIA did not rule on that basis. Gutierrez-Zavala was removed in 2003 and reentered illegally. His removal order was later reinstated under 8 U.S.C. § 1231(a)(5), which provides that “[i]f the Attorney General finds that an alien has reentered the United States illegally after having been removed . . . [and] the prior order of removal is reinstated from its original date,” that prior order “is not subject to being reopened or reviewed.” Gutierrez-Zavala then filed an untimely motion to reopen his removal proceedings. The BIA took administrative notice of the removal order, but concluded that it had jurisdiction and denied the motion on the merits. The panel granted the government’s motion for judicial notice of the form reinstating Gutierrez-Zavala’s removal order, explaining that the court may take judicial notice where, as here, the BIA considered the evidence. The panel also explained that this court has held that 8 U.S.C. § 1231(a)(2) unambiguously bars reopening a reinstated prior removal order. GUTIERREZ-ZAVALA V. GARLAND 3 The panel held that it could deny Gutierrez-Zavala’s petition under 8 U.S.C. § 1231(a)(2), even though the BIA did not rely on that jurisdictional bar. The panel observed that under the Chenery doctrine, the court’s review is typically limited to the grounds upon which the agency relied and that, where the agency offers a different justification in this court, the court should generally remand to the agency. However, the panel concluded that the considerations underlying the Chenery doctrine did not apply because the BIA was required to deny Gutierrez- Zavala’s motion for lack of jurisdiction. The panel observed that the Supreme Court has explained that the Chenery doctrine has no application where the agency was required to reach a necessary result and that Chenery does not require that the court convert judicial review of agency action into a ping-pong game. Thus, the panel concluded that it need not remand for the agency to reach the same conclusion on the BIA’s jurisdiction because to do so would be an idle and useless formality. The panel also noted that denying the petition on this ground was consistent with this court’s precedents, including in the immigration context. 4 GUTIERREZ-ZAVALA V. GARLAND
This opinion or order relates to an opinion or order originally issued on March 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.