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jurisdictionmotion

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Gutierrez-Zavala v. Garland

Facts

Jose Gutierrez-Zavala, a native and citizen of Mexico, was admitted to the U.S. as a lawful permanent resident in 1988. After a 1998 conviction for burglary, he was ordered removed in 2003. Following his illegal reentry into the U.S., the Department of Homeland Security reinstated his prior removal order in 2019. In January 2020, he filed an untimely motion to reopen his removal proceedings, arguing that the deadline should be tolled due to ineffective assistance of counsel and changes in the law regarding his conviction.

Jose Gutierrez-Zavala, a native and citizen of Mexico, was admitted to the U.S. as a lawful permanent resident in 1988. After a 1998 conviction for burglary, he was ordered removed in 2003. Following his illegal reentry into the U.S., the Department of Homeland Security reinstated his prior removal order in 2019. In January 2020, he filed an untimely motion to reopen his removal proceedings, arguing that the deadline should be tolled due to ineffective assistance of counsel and changes in the law regarding his conviction.

Issue

Whether the BIA had jurisdiction to consider Gutierrez-Zavala's motion to reopen his removal proceedings given that he was subject to a reinstated removal order.

Whether the BIA had jurisdiction to consider Gutierrez-Zavala's motion to reopen his removal proceedings given that he was subject to a reinstated removal order.

Rule

Under 8 U.S.C. 1231(a)(5), a prior removal order is not subject to being reopened or reviewed if the alien has reentered the U.S. illegally after being removed.

Under 8 U.S.C. 1231(a)(5), a prior removal order is not subject to being reopened or reviewed if the alien has reentered the U.S. illegally after being removed.

Analysis

The court determined that the BIA lacked jurisdiction to consider Gutierrez-Zavala's motion to reopen because he was subject to a reinstated removal order. The court noted that the BIA's reliance on a previous decision, Morales-Izquierdo, was misplaced, as the more recent decision in Cuenca clarified that the BIA cannot reopen a reinstated removal order. Therefore, the court found that the BIA was required to deny the motion for lack of jurisdiction.

The court determined that the BIA lacked jurisdiction to consider Gutierrez-Zavala's motion to reopen because he was subject to a reinstated removal order. The court noted that the BIA's reliance on a previous decision, Morales-Izquierdo, was misplaced, as the more recent decision in Cuenca clarified that the BIA cannot reopen a reinstated removal order. Therefore, the court found that the BIA was required to deny the motion for lack of jurisdiction.

Conclusion

The Ninth Circuit denied Gutierrez-Zavala's petition for review, affirming that the BIA lacked jurisdiction to consider his motion to reopen.

The Ninth Circuit denied Gutierrez-Zavala's petition for review, affirming that the BIA lacked jurisdiction to consider his motion to reopen.

Who won?

The government prevailed in the case because the court upheld the BIA's lack of jurisdiction to consider the motion to reopen.

The government prevailed in the case because the court upheld the BIA's lack of jurisdiction to consider the motion to reopen.

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