Victor Villa Serrano v. William Barr ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 23, 2019
Decided November 12, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-1492
VICTOR MARTIN VILLA SERRANO, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A073-360-777
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
ORDER
Petitioner Victor Martin Villa Serrano seeks review of the Board of Immigration
Appeals decision not to reopen or reconsider a final removal order entered and later
reinstated against him. We have jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the
petition.
I. Background
We addressed Villa’s case recently in Villa v. Barr, 924 F.3d 370 (7th Cir. 2019). In
brief, Villa was removed to his native Mexico under a final removal order issued in 2005
No. 19-1492 Page 2
upon his conviction in state court for possessing cocaine. In 2007, he reentered this
country unlawfully. The Department of Homeland Security apprehended Villa in 2018
and reinstated the 2005 removal order.
Villa has attacked the reinstatement from two directions. First, he petitioned for
direct review of the reinstatement order in this court, which petition we dismissed in
that earlier case. Id. at 375. Second, he asked the immigration judge to reopen or
reconsider the 2005 removal order. The immigration judge denied the motion, and the
Board of Immigration Appeals affirmed. This petition seeks review of that decision.
II. Analysis
A. Jurisdiction
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1); Mata
v. Lynch, 135 S. Ct. 2150, 2154 (2015). “That jurisdiction … encompasses review of
decisions refusing to reopen or reconsider such orders.” Mata, 135 S. Ct. at 2154, citing
8 U.S.C. § 1252(b)(6). As the latter thus depends on the former, “we do not have
jurisdiction over the motions to reopen or reconsider if we lack jurisdiction over the
underlying order.” Cruz-Mayaho v. Holder, 698 F.3d 574, 577 (7th Cir. 2012).
Our jurisdiction over the underlying 2005 order is limited by two statutory
provisions: Villa’s failure to appeal within thirty days of its entry, see 8 U.S.C.
§ 1252(b)(1) and Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013); and Villa’s 2007
unlawful reentry and the resulting 2018 reinstatement of the 2005 order. See 8 U.S.C.
§ 1231(a)(5) and Zambrano-Reyes v. Holder, 725 F.3d 744, 749 (7th Cir. 2013).
Neither provision bars our review for constitutional or legal error, however. See
8 U.S.C. § 1252(a)(2)(D) and Zambrano-Reyes, 725 F.3d at 749, 751. Villa alleges legal
error in the 2005 removal order by arguing that it was entered without jurisdiction and
a nullity. Under § 1252(a)(2)(D), we would have jurisdiction to review the 2005 order for
constitutional or legal errors and thus have jurisdiction to review to the same extent the
denial of the motion to reopen or reconsider. Zambrano-Reyes, 725 F.3d at 751.
To the extent that Villa made, and the Board considered, an oxymoronic request
for the Board to exercise its discretion to reopen his removal proceedings sua sponte,
see 8 C.F.R. § 1003.2(a), our jurisdiction is narrowly circumscribed to reviewing, at the
very most, whether the Board misunderstood the basis for the request. See Malukas v.
Barr, 940 F.3d 968, 970 (7th Cir. 2019), citing Fuller v. Whitaker, 914 F.3d 514, 520 (7th Cir.
2019).
No. 19-1492 Page 3
B. Merits
We review together the decisions of the immigration judge and the Board.
Zhakypbaev v. Sessions, 880 F.3d 881, 883 (7th Cir. 2018), citing Bathula v. Holder, 723 F.3d
889, 897 (7th Cir. 2013). “We review the decision to deny a motion to reopen ‘for an
abuse of discretion, upholding it unless it was made without rational explanation,
inexplicably departed from established policies, or rested on an impermissible basis.’”
Bathula, 723 F.3d at 903, quoting Marinov v. Holder, 687 F.3d 365, 368 (7th Cir. 2012).
The immigration judge concluded, and the Board affirmed, that § 1231(a)(5)
renders Villa ineligible for the relief he seeks. That paragraph provides,
If the Attorney General finds that an alien has reentered the
United States illegally after having been removed or having
departed voluntarily, under an order of removal, the prior
order of removal is reinstated from its original date and is not
subject to being reopened or reviewed, the alien is not eligible
and may not apply for any relief under this chapter, and the
alien shall be removed under the prior order at any time after
the reentry.
8 U.S.C. § 1231(a)(5) (emphasis added).
There was no abuse of discretion here. The Board “could not reopen [Villa’s]
proceeding, and he is ineligible for the relief he seeks,” notwithstanding any equitable
tolling of the deadline within which to move to reopen or reconsider. Zambrano-Reyes,
725 F.3d at 752; see also Cordova-Soto, 732 F.3d at 795–96 (reaching same result in case
presenting many of the same equities as Villa’s).
To the extent that the Board held § 1231(a)(5) destroyed its regulatory discretion
to reopen sua sponte, Villa has not shown that the Board mischaracterized the basis for
his sua sponte reopening request.
Villa also contends that § 1231(a)(5) does not bar reopening or review in his case
because there was never a “prior order of removal.” The 2005 order purporting to be a
final order of removal was a nullity, argues Villa, because the statutory procedure for
initiating removal proceedings was not complied with. See 8 U.S.C. § 1229(a)(1)(G)(i)
(notices to appear must contain “time and place” at which removal proceedings will be
held); 8 C.F.R. § 1003.14(a) (“Jurisdiction vests” in immigration court when notice to
appear filed). However, we have recently held that a failure to comply with the time
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and place requirements of § 1229(a)(1)(G)(i) is not a jurisdictional defect but only a
claim-processing error that can be waived or forfeited. Ortiz-Santiago v. Barr, 924 F.3d
956, 963 (7th Cir. 2019) (“A failure to comply with the statute dictating the content of a
Notice to Appear is not one of those fundamental flaws that divests a tribunal of
adjudicatory authority.”), discussing among others Pereira v. Sessions, 138 S. Ct. 2105(2018). Thus the 2005 removal order was not a nullity and § 1231(a)(5) bars its reopening
or review.
Because it was not an abuse of discretion to deny Villa relief for which he is
statutorily ineligible, Villa’s petition is DENIED.