Eduardo Junqueira v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EDUARDO RALPH JUNQUEIRA, No. 20-71899 Petitioner, Agency No. A098-006-386 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 8, 2023** Phoenix, Arizona Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges. Petitioner Eduardo Ralph Junqueira, a native and citizen of Brazil, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal, for lack of jurisdiction, 8 U.S.C. § 1231(a)(5), of his appeal of the denial of a motion to reconsider an Immigration Judge’s (“IJ”) previous denial of a motion to reopen. * 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). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review. Our review of the denial of a motion to reopen is limited to determining whether the BIA or IJ erred in concluding that the IJ lacked jurisdiction.1 See Bravo-Bravo v. Garland, 54 F.4th 634, 638 (9th Cir. 2022); 8 U.S.C. § 1252(a)(2)(D); see also Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018) (when the BIA agrees with the IJ’s decision and adds its own reasoning, we review both decisions). “Whether [8 U.S.C.] § 1231(a)(5) bars the agency from reopening a prior removal order and proceeding . . . [pursuant to 8 U.S.C.] § 1229a(c)(7) or sua sponte” under 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1) (2020) “are questions of law we review de novo.” Bravo-Bravo, 54 F.4th at 640. Title 8 U.S.C. § 1231(a)(5) “explicitly insulates the underlying removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order.” Id. at 637 (citation and internal quotation marks omitted). Therefore, the BIA and IJ did not err in concluding that § 1231(a)(5) bars consideration of Junqueira’s motion to reopen his reinstated removal order. Id. at 640–41. Junqueira seeks to attack his underlying removal order collaterally because of an alleged gross miscarriage of justice, but such collateral attacks may be raised 1 We treat Junqueira’s motion to reconsider the denial of his motion to reopen removal proceedings as an extension of his original motion to reopen removal proceedings. 2 20-71899 “only in a petition for review of a reinstatement proceeding or order.” Id. at 640. (emphasis added). Here, the BIA dismissed Junqueira’s appeal regarding his motion to reconsider reopening his removal order. Thus, the statute precludes our review. Junqueira also attempts to analogize his case to Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018), in which we held that, in an exception to the usual jurisdictional bar in § 1231(a)(5), a petitioner may seek recission of a removal order entered in absentia, based on lack of notice, at any time. 889 F.3d at 1002– 03. Miller does not apply because Junqueira’s removal order was not entered in absentia, so there was no risk that he would “first learn[] of the prior removal order at the outset of the reinstatement proceeding.” Id. at 1002. Junqueira nonetheless attempts to place himself within Miller’s broader lack-of-notice logic, arguing that the two-step Notice to Appear (“NTA”) he received to commence his 2004 removal proceedings was insufficient given the Supreme Court’s rulings in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and Pereira v. Sessions, 138 S. Ct. 2105 (2018). Our decision in United States v. Bastide-Hernandez, 39 F.4th 1187, 1190–93, 1191 n.6 (9th Cir. 2022) (en banc), petition for cert. docketed No. 22-6281 (U.S. Dec. 12, 2022), forecloses this argument. 3 20-71899  Finally, Junqueira contends that the BIA and IJ should have invoked their sua sponte authorities to reopen his removal proceedings given his two-step NTA and the effects of Niz-Chavez and Pereira. See 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1) (2020) (then-applicable BIA and IJ sua sponte authorities). However, § 1231(a)(5) bars the IJ and BIA from exercising their sua sponte authorities to reopen. See Gutierrez-Zavala v. Garland, 32 F.4th 806, 809–10 (9th Cir. 2022) (declining to address the petitioner’s arguments that the BIA should have exercised its sua sponte reopening authority because “[t]he necessary and certain result of § 1231(a)(5)’s bar . . . is the denial of [the petitioner’s] motion to reopen for the BIA’s lack of jurisdiction.”). The petition is DENIED. 4 20-71899