Salvador Higarera-Segura v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR HIGARERA-SEGURA, No. 16-72611
Petitioner, Agency No. A075-185-118
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2018**
San Francisco, California
Before: SILER,*** PAEZ, and IKUTA, Circuit Judges.
Salvador Higarera-Segura, a native and citizen of Mexico, petitions for
review of the Department of Homeland Security (“DHS”)’s decision to reinstate
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
his prior removal order. We dismiss the petition as moot.
In light of Higarera-Segura’s reentry into the United States while the present
petition for review was pending, we cannot order any “effective relief.”1 Bayer v.
Neiman Marcus Grp., Inc., 861 F.3d 853, 862 (9th Cir. 2017). Higarera-Segura is
no longer subject to the reinstatement decision under review. Rather, DHS must
make a new determination as to whether to reinstate Higarera-Segura’s February
2011 removal order. Thus, even if we were to vacate the reinstatement decision,
such relief would have no concrete effect. Furthermore, Higarera-Segura does not
argue that the reinstatement decision under review carries with it a “collateral
consequence” that may be redressed through the present petition, Del Cid
Marroquin v. Lynch, 823 F.3d 933, 935 (9th Cir. 2016), and we are not aware of
any such consequence, see Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497–98
(9th Cir. 2007) (en banc).
Finally, we reject Higarera-Segura’s argument that this case is “capable of
repetition, yet evading review.” United States v. Orr Water Ditch Co., 391 F.3d
1077, 1080 (9th Cir. 2004) (internal quotation marks omitted). Our conclusion that
the present case is moot in light of Higarera-Segura’s reentry does not necessarily
1
We grant the government’s unopposed motion to take judicial notice of, inter alia,
the indictment charging Higarera-Segura with illegal reentry. We also grant
Higarera-Segura’s motion to supplement the administrative record, as the
government concedes that we may consider the documents attached to the motion
for purposes of determining our jurisdiction.
2
foreclose our review of a future challenge to a reinstatement decision. See, e.g.,
Villa-Anguiano v. Holder, 727 F.3d 873, 877, 882 (9th Cir. 2013) (reviewing a
challenge to a reinstatement order where the petitioner had been physically
removed). Moreover, as Higarera-Segura acknowledges, the issue he seeks to raise
is whether 8 U.S.C. § 1231(a)(5) bars sua sponte reopening of removal proceedings
where a motion for such relief is filed prior to reinstatement. If DHS again
reinstates Higarera-Segura’s removal, he may raise that issue in a petition for
review of the Board of Immigration Appeals’ order affirming the denial of a
motion to reopen.2
DISMISSED.
2
Here, the Board of Immigration Appeals issued such an order, but Higarera-
Segura did not petition for review of it.
3