Jose Gutierrez-Zavala v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANUEL GUTIERREZ-ZAVALA, No. 20-73398
Petitioner,
Agency No.
v. A090-155-378
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2022 *
Pasadena, California
Filed April 26, 2022
Before: Daniel A. Bress and Patrick J. Bumatay, Circuit
Judges, and Sharon L. Gleason, ** District Judge.
Opinion by Judge Bress
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Sharon L. Gleason, Chief United States District
Judge for the District of Alaska, sitting by designation.
2 GUTIERREZ-ZAVALA V. GARLAND
SUMMARY ***
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.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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
COUNSEL
Douglas Jalaie, Los Angeles, California, for Petitioner.
Justin R. Markel and Paul Fiorino, Senior Litigation
Counsel; Brian Boynton, Acting Assistant Attorney General;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
BRESS, Circuit Judge:
Jose Gutierrez-Zavala, 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 Gutierrez-Zavala’s
motion to reopen because he was subject to a reinstated prior
removal order. See 8 U.S.C. § 1231(a)(5); Cuenca v. Barr,
956 F.3d 1079, 1084 (9th Cir. 2020). We hold here that we
can deny Gutierrez-Zavala’s petition for review based on the
BIA’s lack of jurisdiction, even though the BIA did not rule
on that basis. We therefore deny the petition for review.
On December 29, 1988, Gutierrez-Zavala was admitted
to the United States as a lawful permanent resident. In
January 1998, he was convicted of burglary in the second
degree in California state court, Cal. Penal Code §§ 459,
460(b), and sentenced to 16 months in prison. In August
1998, the former Immigration and Naturalization Service
(INS) served Gutierrez-Zavala with a Notice to Appear,
charging him with removability as an alien who, after
GUTIERREZ-ZAVALA V. GARLAND 5
admission, had been convicted of an aggravated felony. See
8 U.S.C. § 1227(a)(2)(A)(iii). Gutierrez-Zavala admitted
the factual allegations against him, and an Immigration
Judge (IJ) ordered Gutierrez-Zavala removed to Mexico.
After his lawyer failed to file a brief in support of his appeal
to the BIA, Gutierrez-Zavala was removed to Mexico in May
2003.
Later that year, Gutierrez-Zavala illegally reentered the
United States. In September 2019, the Department of
Homeland Security (DHS) detained Gutierrez-Zavala and
reinstated his prior removal order. See 8 U.S.C. § 1231(a)(5)
(providing for the reinstatement of prior removal orders for
non-citizens who reenter the United States illegally); Lopez
v. Garland, 17 F.4th 1232, 1234 (9th Cir. 2021) (describing
requirements for reinstatement of a prior removal order).
In January 2020, nearly 20 years after Gutierrez-Zavala
was ordered removed to Mexico, he filed an untimely motion
to reopen and terminate his removal proceedings. See
8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R § 1003.2(c)(2).
Subject to certain exceptions, a motion to reopen must be
filed within 90 days of the removal order. 8 U.S.C.
§ 1229a(c)(7)(A), (C); 8 C.F.R § 1003.2(c)(2). Gutierrez-
Zavala acknowledged that his motion to reopen was
untimely but argued that the deadline should be tolled and
his motion deemed timely. Specifically, Gutierrez-Zavala
argued for tolling because his prior counsel provided
ineffective assistance by failing to file a brief in support of
his appeal to the BIA challenging his removal order.
Gutierrez-Zavala also sought tolling on the ground that he
was allegedly no longer removable based on his burglary
conviction, relying on the Supreme Court’s intervening
decision in Descamps v. United States, 570 U.S. 254 (2013).
6 GUTIERREZ-ZAVALA V. GARLAND
Gutierrez-Zavala further maintained that the BIA should
reopen his removal proceedings sua sponte.
In its decision on the motion to reopen, the BIA took
administrative notice of the fact that Gutierrez-Zavala was
subject to a reinstated order of removal. But citing our
decision in Morales-Izquierdo v. Gonzales, 486 F.3d 484,
497–98 (9th Cir. 2007), the BIA concluded that it had
jurisdiction to consider Gutierrez-Zavala’s motion to reopen
notwithstanding the reinstatement of his removal order. The
BIA therefore proceeded to the merits and denied Gutierrez-
Zavala’s motion to reopen after concluding that he had not
exercised due diligence in pursuing relief and that sua sponte
reopening was not justified. Gutierrez-Zavala then
petitioned for review in our court.
We have jurisdiction under 8 U.S.C. § 1252 and review
the BIA’s denial of a motion to reopen for abuse of
discretion. Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th
Cir. 2017). The government requests that we take judicial
notice of the Form I-871 reinstating Gutierrez-Zavala’s
removal order. We may take judicial notice of out-of-record
evidence where, among other situations, “the Board
considers the evidence.” Fisher v. INS, 79 F.3d 955, 964
(9th Cir. 1996) (en banc). Here the BIA’s decision expressly
noted the fact of the reinstatement order. We therefore grant
the government’s motion for judicial notice. 1
1
We reject as unsupported Gutierrez-Zavala’s assertion that neither
he nor his counsel were served with the reinstatement order. Gutierrez-
Zavala signed an acknowledgement on the Form I-871 reinstating the
prior removal order. And he otherwise identifies no evidence suggesting
that he did not receive the reinstated removal order or that he was
unaware of it.
GUTIERREZ-ZAVALA V. GARLAND 7
Although the BIA recognized that Gutierrez-Zavala was
subject to a reinstated removal order, it denied his motion to
reopen on the merits. We have held, however, that the BIA
lacks jurisdiction to “reopen[] a removal order that has been
reinstated following an alien’s unlawful reentry into the
United States.” Cuenca, 956 F.3d at 1088. Under 8 U.S.C.
§ 1231(a)(5), “[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.” 8 U.S.C. § 1231(a)(5)
(emphasis added). That provision, we held, “unambiguously
bar[s] reopening a reinstated prior removal order.” Cuenca,
956 F.3d at 1084. Although 8 U.S.C. § 1229a(c)(7)
generally provides non-citizens the right to file motions to
reopen, the non-citizen “forfeits that right by reentering the
country illegally. That is the clear import of the statute’s
unambiguous text.” Id. at 1085 (quoting Rodriguez-
Saragosa v. Sessions, 904 F.3d 349, 354 (5th Cir. 2018)).
The BIA did not discuss our decision in Cuenca, in
which we issued an amended opinion only several months
before the BIA ruled in this case. Instead, in determining
that it had jurisdiction to consider Gutierrez-Zavala’s motion
to reopen, the BIA cited our earlier decision in Morales-
Izquierdo. But in Cuenca, we explained that Morales-
Izquierdo did not govern the question of whether a petitioner
subject to a reinstated removal order could seek to reopen his
removal proceedings under § 1229a(c)(7). See Cuenca,
956 F.3d at 1085–88 (explaining, inter alia, that Morales-
Izquierdo “came to this Court as a petition for review of a
reinstatement order itself, not from the denial of a motion to
reopen,” and that the petitioner there was subject to special
rules governing in absentia orders). Although it is not clear
if the BIA in this case was aware of Cuenca, that decision
8 GUTIERREZ-ZAVALA V. GARLAND
conclusively explains why the BIA’s reliance on Morales-
Izquierdo was in error. Thus, under Cuenca, § 1231(a)(5)
“institute[es] a permanent jurisdictional bar” on the BIA’s
ability to entertain a motion to reopen a reinstated removal
order. 956 F.3d at 1084.
The BIA, as we have noted, did not base its denial of
Gutierrez-Zavala’s motion to reopen on § 1231(a)(5)’s
jurisdictional bar. And we recognize that, under the
venerable Chenery doctrine, our review is typically “limited
to ‘[t]he grounds upon which . . . the record discloses that
[the agency’s] action was based.’” Hernandez-Cruz v.
Holder, 651 F.3d 1094, 1109 (9th Cir. 2011) (alterations in
original) (quoting SEC v. Chenery Corp., 318 U.S. 80, 87
(1943)). Under Chenery, “[w]e will not uphold a
discretionary agency decision where the agency has offered
a justification in court different from what it provided in its
opinion.” Morgan Stanley Cap. Grp. Inc. v. Pub. Util. Dist.
No. 1, 554 U.S. 527, 544 (2008) (citing Chenery, 318 U.S.
at 94–95). Instead, “[g]enerally speaking, a court of appeals
should remand a case to an agency for decision of a matter
that statutes place primarily in agency hands.” INS v.
Orlando Ventura, 537 U.S. 12, 16 (2002).
But because the BIA was required to deny Gutierrez-
Zavala’s motion to reopen for lack of jurisdiction, these
same considerations do not apply. As the Supreme Court
has explained, “[t]he Chenery doctrine has no application”
where the agency “was required” to reach a “necessary
result.” Morgan Stanley, 554 U.S. at 544–45. Put another
way, there is an “‘exception’ to Chenery . . . based upon
subjective certainty . . . with respect to the outcome of the
agency decision upon remand.” Arnold v. Morton, 529 F.2d
1101, 1105 (9th Cir. 1976).
GUTIERREZ-ZAVALA V. GARLAND 9
The necessary and certain result of § 1231(a)(5)’s bar
and our decision in Cuenca is the denial of Gutierrez-
Zavala’s motion to reopen for the BIA’s lack of jurisdiction.
See Cuenca, 956 F.3d at 1084, 1088. It follows that where
we review the denial of a motion to reopen that the BIA did
not have jurisdiction to consider, we need not remand for the
agency to reach that same conclusion because to do so
“would be an idle and useless formality.” NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 766 n.6 (1969) (plurality
opinion). As the Supreme Court has long instructed,
“Chenery does not require that we convert judicial review of
agency action into a ping-pong game.” Id.Denying Gutierrez-Zavala’s petition on this ground is
consistent with our precedents, including in the immigration
context. In Safaryan v. Barr, 975 F.3d 976, 979 (9th Cir.
2020), for example, we considered whether a published BIA
decision holding that a violation of California Penal Code
§ 245(a)(1) is a crime involving moral turpitude was entitled
to Chevron deference. The precedential decision at issue,
Matter of Wu, 27 I. & N. Dec. 8 (B.I.A. 2017), was published
while Safaryan’s petition for review was pending in our
court. Id. at 983. In Safaryan, the parties “briefed the matter
on the premise that, if we determine that Matter of Wu is
entitled to Chevron deference, then Matter of Wu governs
this case and renders Safaryan inadmissible.” Id. We held
that the interpretation in Matter of Wu was entitled to
Chevron deference. See id. But rather than remand for the
BIA to consider Safaryan’s arguments in light of Matter of
Wu, we saw “no need to pointlessly remand the matter to the
BIA so that it can formally invoke Matter of Wu in this case.”
Id. (citing Morgan Stanley, 554 U.S. at 545).
Similarly, in Singh v. Barr, 935 F.3d 822, 827 (9th Cir.
2019) (per curiam), we did not remand even though the BIA
10 GUTIERREZ-ZAVALA V. GARLAND
incorrectly applied the nexus standard applicable to Singh’s
request for withholding of removal. Specifically, the BIA
applied the “one central reason” standard for both his asylum
and withholding claims. Id. Under our precedents, an
applicant for withholding of removal must show that a
protected ground was merely “a reason” for persecution. Id.(citing Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th
Cir. 2017)). We declined to remand, however, “[b]ecause
the BIA adopted the IJ’s finding of no nexus between the
harm to Singh and the alleged protected ground,” and thus to
“remand to the BIA ‘would be an idle and useless
formality.’” Id. (quoting Wyman-Gordon, 394 U.S. at 766
n.6). Here too, that the BIA “provided a different rationale
for the necessary result is no cause for upsetting its ruling.”
Morgan Stanley, 554 U.S. at 545.
When the BIA denies a motion to reopen a reinstated
removal order on grounds other than a lack of jurisdiction,
we may deny a petition challenging that ruling based on the
BIA’s lack of jurisdiction under 8 U.S.C. § 1231(a)(5).
Accordingly, the petition is
DENIED.