Yoni Solis-Ramirez v. Loretta E. Lynch , 668 F. App'x 821 ( 2016 )

FILED
NOT FOR PUBLICATION
SEP 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YONI ROLANDO SOLIS-RAMIREZ, No. 13-72649
Petitioner, Agency No. A044-612-096
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 30, 2016
Pasadena, California
Before: KOZINSKI and BYBEE, Circuit Judges, and WALTER,** District Judge.
Yoni Solis-Ramirez petitions this court for review of the Board of
Immigration Appeals’ (“BIA”) decisions not to reopen sua sponte or cancel his
removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald E. Walter, United States District Judge for the
Western District of Louisiana, sitting by designation.
deny the petition. The parties are familiar with the facts, and we will not recite
them here.
Solis-Ramirez contends that the BIA erred when it refused to reopen sua
sponte or cancel his removal proceedings. It did not. Because Solis-Ramirez’s
removal order was merely a reinstatement of a previous removal order, 8 U.S.C.
§ 1231(a)(5) provides that “the prior order of removal is reinstated . . . and is not
subject to being reopened or reviewed.” Nonetheless, Solis-Ramirez urged the
BIA to reopen or cancel the removal proceedings on the basis that the “prior order
of removal” was a gross miscarriage of justice for two reasons: ineffective
assistance of counsel and the reclassification of a crime that was one of the bases
for the initial removal order.
The BIA is barred from reopening or reviewing a reinstated removal order
unless its refusal to do so would result in a “gross miscarriage of justice.” Garcia
de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008). Solis-
Ramirez’s allegations fail to rise to this high bar. See Ramirez-Juarez v. INS, 633
F.2d 174, 175–76 (9th Cir. 1980) (per curiam) (refusing to find a gross miscarriage
of justice when an alien was deported in violation of a court injunction);
Hernandez-Almanza v. INS, 547 F.2d 100, 102–03 (9th Cir. 1976) (refusing to find
a gross miscarriage of justice when an alien was deported based on a conviction
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that was later vacated), superseded by statute on other grounds as noted in Planes
v. Holder, 652 F.3d 991, 995 (9th Cir. 2011); see also United States v. Garcia-
Arredondo, 489 Fed. App’x 171, 172 (9th Cir. 2012) (refusing to find a gross
miscarriage of justice when an alien “allegedly received ineffective assistance of
counsel” in their initial removal proceeding). Therefore, the BIA was statutorily
barred from reopening or cancelling the removal proceedings.
Because the statutory bar is dispositive, we do not reach the BIA’s
alternative holding that Solis-Ramirez did not demonstrate an exceptional
circumstance that warrants sua sponte reopening of his removal proceedings.
DENIED.
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