In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3392
GABRIELA CORDOVA‐SOTO,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
A091‐045‐891.
ARGUED JULY 10, 2013 — DECIDED OCTOBER 15, 2013
Before BAUER, TINDER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Petitioner Gabriela Cordova‐Soto
is a Mexican citizen whose parents brought her to the United
States at the age of nine months. She eventually became a
lawful permanent resident. In 2005 at age 27, however, she
signed a written stipulation agreeing to removal to Mexico
after she was convicted in state court for possession of
methamphetamine. She believed, she says, based on legal
2 No. 12‐3392
advice from an immigration officer that she had no way to stay
in the United States lawfully after that conviction.
Immediately after her removal, though, Cordova‐Soto
returned to the United States unlawfully. After she was
discovered in 2010, her earlier removal order from 2005 was
reinstated. See 8 U.S.C. § 1231(a)(5). She was again removed to
Mexico. After that second removal, Cordova‐Soto sought in
2011 to reopen the removal order entered back in 2005. An
immigration judge and then the Board of Immigration Appeals
denied her motion to reopen the 2005 removal order. Cordova‐
Soto has petitioned for judicial review. We conclude that her
illegal reentry after her 2005 removal permanently bars
reopening that earlier removal order. See 8 U.S.C. § 1231(a)(5).
Accordingly, we deny her petition.
I. Factual and Procedural Background
Cordova‐Soto entered the United States in 1978 as an infant
and became a lawful permanent resident in 1991 at the age of
13. After moving to Kansas, she worked at fast food
restaurants to support her family and eventually received her
high school equivalency degree. In her late teens, she started
using drugs and ran into trouble with the law. She was
sentenced to six months in prison in 2002 for theft, served 60
days in prison in 2003 for passing a worthless check, and was
given a 20‐month suspended sentence in 2005 for possessing
methamphetamine—a felony under state law. See Kan. Stat.
§ 65‐4160 (2005).
As a result of those convictions, immigration authorities in
2005 acted to remove Cordova‐Soto on three related but legally
distinct grounds: (1) commission of an aggravated felony;
No. 12‐3392 3
(2) commission of two crimes involving moral turpitude; and
(3) commission of a controlled substance offense. See 8 U.S.C.
§ 1227(a)(2)(A)(ii), (a)(2)(A)(iii), and (a)(2)(B)(i). At the time of
these immigration charges, the circuit courts of appeals had
split on whether a drug possession conviction like Cordova‐
Soto’s that was a felony under state law but that would be a
misdemeanor under federal law should be treated as an
aggravated felony for purposes of federal immigration law. See
8 U.S.C. § 1101(a)(43); Lopez v. Gonzales, 549 U.S. 47, 52 & n.3
(2006) (resolving circuit split and holding that such convictions
were not aggravated felonies under immigration law). We
ruled in early 2006 that state convictions for drug possession
without intent to distribute were not aggravated felonies for
immigration purposes. Gonzales‐Gomez v. Achim, 441 F.3d 532,
535 (7th Cir. 2006).
According to Cordova‐Soto, though, during her removal
proceedings in 2005 an immigration officer said that she “did
not have any way to stay in the United States,” and she
received similar advice from a legal aid organization. Believing
that her case was hopeless, she signed a “Stipulated Request
for Issuance of Final Order of Removal, [and] Waiver of
Appearance and Hearing.” This form included an admission
of the factual allegations in her Notice to Appear, a waiver of
“any right to make application for any relief from removal
including … cancellation of removal,” and an acknowledgment
that she signed the form “voluntarily, knowingly, and
intelligently.”
Based on the stipulation, and without a hearing, an
immigration judge ordered Cordova‐Soto removed to Mexico
in November 2005. According to the National Immigrant Law
4 No. 12‐3392
Center, which filed an amicus curiae brief in this case,
immigration officers routinely give detained immigrants like
Cordova‐Soto misleading information about their legal rights
when offering them stipulated orders of removal. We do not
know this is so, but we will assume it is for purposes of this
case.
Just three weeks after her removal, Cordova‐Soto returned
to the United States illegally and moved back to Kansas to live
with her four U.S.‐born children (then ages 9, 8, 8, and 1) and
their U.S.‐citizen father, whom she later married in 2009. As
understandable as her illegal return may have been in human
terms, her illegal return has decisive consequences in this case.
In 2010 immigration authorities discovered that Cordova‐
Soto had returned to the United States and took her into
custody. The authorities reinstated the 2005 order of removal
using an expedited process available for aliens who are
removed and then return illegally. See 8 U.S.C. § 1231(a)(5).
Cordova‐Soto was again removed to Mexico. From there,
she appealed to the Board of Immigration Appeals, which
dismissed her appeal. She then petitioned the Tenth Circuit to
review the reinstatement of the 2005 order of removal and the
underlying order of removal itself. The Tenth Circuit ruled that
it lacked jurisdiction to review the 2005 order and rejected
Cordova‐Soto’s argument attacking the reinstatement of that
order. Cordova‐Soto v. Holder, 659 F.3d 1029, 1035 (10th Cir.
2011).
After the Tenth Circuit rejected her challenge to the
reinstatement, Cordova‐Soto filed a motion with an
immigration judge to reopen her 2005 removal order. She
No. 12‐3392 5
argued that the standard 90‐day deadline did not apply or was
equitably tolled. She also asked that the order be reopened sua
sponte because of the defects in the underlying order. (A
request for sua sponte reopening is an oxymoron, but the odd
concept seems to be well entrenched in immigration law.)
The immigration judge denied Cordova‐Soto’s motion on
four grounds: (1) her motion was untimely, and she had not
shown due diligence by “hiding out for five years” and not
consulting a lawyer until she was detained; (2) a removal order
could never be reopened after the alien’s illegal reentry and
reinstatement of the order, see 8 U.S.C. § 1231(a)(5); (3) her
written stipulation was knowing and intelligent because, the
immigration judge asserted, the legal advice she received was
correct at that time; and (4) she had not shown exceptional
circumstances that would justify reopening sua sponte.
The Board agreed with the immigration judge that the
motion was untimely and added that there was no basis for
equitable tolling without a claim of ineffective assistance of
counsel or other reason to think she was unaware of the status
of her case. The Board also agreed with the immigration judge
that Cordova‐Soto had not presented “exceptional
circumstances” that warranted reopening sua sponte. Cordova‐
Soto now petitions for review of that denial of reopening of the
2005 removal order.
II. Venue
We begin our analysis with the threshold question of
venue. The government has moved to have this case dismissed
for improper venue or transferred to the Eighth Circuit. At the
time of Cordova‐Soto’s 2005 removal order, removal
6 No. 12‐3392
proceedings like hers that began in Kansas (her state of
residence) were adjudicated by the immigration court in
Chicago. Three years later the immigration court in Kansas
City, Missouri, assumed control over proceedings involving
aliens residing in Missouri and Kansas. Cordova‐Soto filed her
2011 motion to reopen in Chicago, but was told to re‐file in
Kansas City. She did so, and an immigration judge in Kansas
City denied her motion to reopen.
A petition for review must be “filed with the court of
appeals for the judicial circuit in which the immigration judge
completed the proceedings.” 8 U.S.C. § 1252(b)(2). This is not
a jurisdictional statute, however, so we are not deprived of
subject matter jurisdiction over the petition merely because
Cordova‐Soto’s immigration proceedings were completed in
the Eighth Circuit. See Thiam v. Holder, 677 F.3d 299, 301–02
(6th Cir. 2012) (listing cases); see also Nwaokolo v. INS, 314 F.3d
303, 306 n.2 (7th Cir. 2002) (per curiam). When jurisdiction is
absent, 28 U.S.C. § 1631 empowers us to transfer a case to a
court with jurisdiction “if it is in the interest of justice.” We join
other circuits that take guidance from § 1631 in assessing
whether to transfer a case from one court, like ours, having
jurisdiction to another that would also have proper venue. See
Thiam, 677 F.3d at 302; Sorcia v. Holder, 643 F.3d 117, 122 (4th
Cir. 2011); Moreno‐Bravo v. Gonzales, 463 F.3d 253, 262–63 (2d
Cir. 2006).
Based on a combination of several unusual features of this
case, we conclude that the interest of justice favors keeping
Cordova‐Soto’s petition in this court. First, although the
government moved to transfer soon after the petition was filed,
the case has now been briefed and argued. A transfer now
No. 12‐3392 7
would inconvenience both parties, occupy two courts, and
delay resolution of the petition. See Moreno‐Bravo, 463 F.3d at
262–63; Bonhometre v. Gonzales, 414 F.3d 442, 446 n.5 (3d Cir.
2005). Second, Cordova‐Soto is represented by pro bono
counsel located in Chicago, so transfer would impose increased
costs and inconvenience on her attorneys, whereas the
government litigates nationwide. See Thiam, 677 F.3d at 302;
Sorcia, 643 F.3d at 122–24. Also, because this case originally
started in Chicago, Cordova‐Soto did not act unreasonably by
filing her petition here. In light of this unusual history, we
believe the better course is to exercise our discretion to keep
the petition in this court.
III. Jurisdiction
The government also challenges our jurisdiction to review
the denial of Cordova‐Soto’s motion to reopen the 2005
removal order. The government asserts that we may not decide
the case because Cordova‐Soto did not timely appeal the
earlier removal order. Alternatively, the government argues
that the Board lacks jurisdiction to reopen a removal order at
any point after it has been reinstated. It points to a provision in
the Immigration and Nationality Act governing reinstated
removal orders: “If the Attorney General finds that an alien has
reentered the United States illegally after having been removed
… the prior order of removal is reinstated from its original date
and is not subject to being reopened or reviewed.” 8 U.S.C.
§ 1231(a)(5).
This court does not have jurisdiction to review the 2005
removal order itself. The government is correct that the time to
appeal the 2005 removal order expired thirty days after its
8 No. 12‐3392
entry. See 8 U.S.C. § 1252(b)(1). This court does have
jurisdiction, however, to hear Cordova‐Soto’s challenge to the
Board’s denial of her motion to reopen because she timely
raises questions of law about the meaning of § 1231(a)(5). See
8 U.S.C. § 1252(a)(2)(D); Zambrano‐Reyes v. Holder, 725 F.3d 744,
751 (7th Cir. 2013); Marinov v. Holder, 687 F.3d 365, 368 (7th Cir.
2012); Bachynskyy v. Holder, 668 F.3d 412, 416–17 (7th Cir. 2011).
IV. The Merits of the Petition
We turn to the merits of the denial of Cordova‐Soto’s
motion to reopen. Because the Board agreed with the
immigration judge’s multiple grounds for denying the petition,
we review the immigration judge’s order as supplemented by
the Board’s decision. See Munoz‐Avila v. Holder, 716 F.3d 976,
978 (7th Cir. 2013); Abraham v. Holder, 647 F.3d 626, 632 (7th Cir.
2011).
Although we have jurisdiction to consider the merits, we
agree with the government that § 1231(a)(5) bars reopening of
a removal order that has been reinstated after the alien’s illegal
return to the United States. That paragraph of the statute is
entitled “Reinstatement of removal orders against aliens
illegally reentering,” and it provides:
If the Attorney General finds that an alien has
reentered the United States illegally after having
been removed or having departed voluntarily,
under an order of removal, the prior order of
removal is reinstated from its original date and is
not subject to being reopened or reviewed, the
alien is not eligible and may not apply for any
relief under this chapter, and the alien shall be
No. 12‐3392 9
removed under the prior order at any time after
the reentry.
Cordova‐Soto argues that § 1231(a)(5) is not a permanent
bar but instead prevents aliens from reopening their removal
orders only while the reinstatement process is underway. She
points out that the statute is written in the present tense, not
the future tense: the order “is reinstated” and “is not subject to
being reopened.” 8 U.S.C. § 1231(a)(5). She adds that reading
the provision as a permanent bar raises due process concerns
because aliens who contend that they were removed without
notice and hearing would be forever unable to challenge their
removal orders after reinstatement. (This would be true,
however, only for aliens who are removed and who then
choose to reenter the United States illegally.) She also notes
that Congress explicitly used the word “permanently” in other
portions of the Immigration and Nationality Act when it
intended to forever bar any future relief. See, e.g., 8 U.S.C.
§ 1158(d)(6).
We disagree with Cordova‐Soto’s reading of § 1231(a)(5)
and its purpose. First, the argument based on the text is not
persuasive. The Immigration and Naturalization Act contains
a number of provisions written in the present tense that
nonetheless operate permanently. In particular, the statute
permanently bars entry of certain aliens by using the phrase “is
inadmissible.” Such aliens include those who have committed
application fraud, see 8 U.S.C. § 1182(a)(6)(C)(i) (“Any alien
who, by fraud or willfully misrepresenting a material fact,
seeks to procure … [a] benefit provided under this chapter is
inadmissible.”); Valenzuela‐Solari v. Mukasey, 551 F.3d 53, 56 (1st
Cir. 2008), and those who have illegally reentered the United
10 No. 12‐3392
States after removal, see 8 U.S.C. § 1182(a)(9)(C)(i)(II) (“Any
alien who has been ordered removed … and who enters or
attempts to reenter the United States without being admitted
is inadmissible.”); Lemus‐Losa v. Holder, 576 F.3d 752, 761 (7th
Cir. 2009). When a bar is designed to be less than permanent,
though, such as when an applicant must wait a certain number
of years before seeking to reenter, the Act specifies how long
the bar lasts. See 8 U.S.C. § 1182(a)(9)(A)(i).
Second, the purpose of § 1231(a)(5) is “to expedite the
re‐removal of a person who returns without permission after
being removed.” Tapia‐Lemos v. Holder, 696 F.3d 687, 690 (7th
Cir. 2012). Congress added the provision in 1996 as part of the
Illegal Immigration Reform and Immigrant Responsibility Act,
Pub. L. No. 104‐208, 110 Stat. 3009, to invest the reinstatement
process “with something closer to finality.” Fernandez‐Vargas
v. Gonzales, 548 U.S. 30, 40 (2006) (upholding application of
provision to alien who reentered United States illegally before
provision was passed); Zambrano‐Reyes, 725 F.3d at 752
(denying petition where alien had illegally reentered United
States and sought judicial review of denial of his request to
reopen original removal order); see also Herrera‐Molina v.
Holder, 597 F.3d 128, 133 (2d Cir. 2010). The text of the statute
does not allow room for avoiding this clear purpose.
Third, an alien in Cordova‐Soto’s situation in 2005 had
available to her extensive procedures to protect her rights and
interests. Congress made a reasonable and understandable
choice to provide that an alien who is removed pursuant to
those procedures should not be able to engage in unlawful self‐
help by simply sneaking back into the country.
No. 12‐3392 11
Cordova‐Soto had a reasonable opportunity to move to
reopen back in 2005. Instead, she returned to the United States
just three weeks after she was removed. Given her desire to
return, she could have consulted an attorney to determine if
she had been mistakenly advised to agree to removal. And she
could have done this from Mexico within the standard 90‐day
period for a motion to reopen. Although 8 C.F.R. § 1003.2(d)
might be thought to suggest that petitioners cannot reopen
their removal orders from outside the United States, we have
held that the Board cannot divest itself of the jurisdiction
created by 8 U.S.C. § 1229a(c)(7)(A) and (C), which allows
petitioners the opportunity to file one motion to reopen within
90 days, regardless of the alien’s location. See Rivas‐
Melendrez v. Napolitano, 689 F.3d 732, 739 n.5 (7th Cir. 2012);
Marin‐Rodriguez v. Holder, 612 F.3d 591, 594–95 (7th Cir. 2010).
(We recognize that Cordova‐Soto’s prospects for success
would have been dimmer in the Eighth Circuit, which has not
ruled on this matter, see Ortega‐Marroquin v. Holder, 640 F.3d
814, 820 (8th Cir. 2011), and that the Tenth Circuit barred out‐
of‐country petitions to reopen until last year, see
Contreras–Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012)
(en banc).)
Instead of acting lawfully to seek to reenter, Cordova‐Soto
reentered the country illegally and did her best to stay out of
sight. She did not seek any legal relief from the removal order
until five years later, after immigration authorities took her
into custody. Her actions fall squarely within the terms of §
1231(a)(5). She is not entitled to reopen that 2005 removal
order.
12 No. 12‐3392
Other circuits have taken different approaches to the
question whether an alien may collaterally attack an
underlying order of removal during a challenge to the new
order of reinstatement. The Second, Tenth (in Cordova‐Soto’s
earlier case), and Eleventh Circuits, like ours in Torres‐Tristan
v. Holder, 656 F.3d 653, 656 (7th Cir. 2011), do not entertain
attacks on underlying removal orders during a challenge to
new reinstatement orders. See Cordova‐Soto, 659 F.3d at 1032;
Avila v. U.S. Attorney General, 560 F.3d 1281, 1285 (11th Cir.
2009); Garcia‐Villeda v. Mukasey, 531 F.3d 141, 150 (2d Cir. 2008).
The Sixth Circuit will review, during a review of the
reinstatement order, any constitutional claims or questions of
law, including due process challenges to the underlying
removal order. Villegas de la Paz v. Holder, 640 F.3d 650, 656–57
(6th Cir. 2010) (denying relief on the merits). Three other
circuits have said they will consider a collateral attack only to
the extent that a petitioner can show a “gross miscarriage of
justice” in the underlying proceedings, but we have found no
cases actually granting relief under such a theory. See
Zambrano‐Reyes, 725 F.3d at 749, n.3, citing Garcia de Rincon v.
Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008); see
also Debeato v. U.S. Attorney General, 505 F.3d 231, 235 (3d Cir.
2007) (denying relief on the merits); Ramirez‐Molina v. Ziglar,
436 F.3d 508, 513–14 (5th Cir. 2006) (same).
Despite these varying approaches to collateral review of the
underlying order while the reinstatement order is under
review, we are confident that the statute prohibits collateral
review after the review of the reinstatement is complete, as is
the case here.
No. 12‐3392 13
Our conclusion about the effect of § 1231(a)(5) lines up with
the principles underlying the fugitive disentitlement doctrine
in the law of criminal appeals. That doctrine allows courts to
dismiss criminal appeals to prevent fugitives from enjoying the
benefits of an appeal while flouting the judgments that keep
them in custody. See Ortega‐Rodriguez v. United States, 507 U.S.
234, 239–42 (1993) (collecting cases); United States v. Jacob,
714 F.3d 1032, 1034 (7th Cir. 2013); Sapoundjiev v. Ashcroft,
384 F.3d 916, 917 (7th Cir. 2004).
In this case, Cordova‐Soto flouted this country’s laws by
reentering illegally rather than filing a timely motion to reopen.
Now, after being caught, she wants the BIA and this court to
allow her to attack belatedly her 2005 removal order. The
fugitive disentitlement doctrine is discretionary, see Jacob, 714
F.3d at 1034; Gutierrez‐Almazan v. Gonzales, 453 F.3d 956, 957
(7th Cir. 2006), but it is also a judicially created rule. The
language of § 1231(a)(5) barring relief here is a mandatory
directive in a statute.
We recognize the force of Cordova‐Soto’s most basic
human desire to reunite with her children. We also recognize
that Cordova‐Soto has spent nearly her entire life in the United
States, and we assume for purposes of her petition that she
gave up a potential claim for relief from removal by stipulating
to removal based on bad legal advice from an immigration
officer. And the immigration judge signed off on her 2005
stipulation without addressing whether it was intelligent and
voluntary, even though she was not represented by counsel
during the proceedings. See 8 C.F.R. § 1003.25(b) (“If the alien
is unrepresented, the Immigration Judge must determine that
the alien’s waiver is voluntary, knowing, and intelligent.”). She
14 No. 12‐3392
therefore had grounds either to appeal her 2005 removal order
directly or to file a timely motion to reopen it, after which she
might have received cancellation of removal, which might
have allowed her to stay in this country legally with her four
children and husband, all of whom are U.S. citizens. See 8
U.S.C. § 1229b(a); In re Taveras, 25 I&N Dec. 834, 834–35 (BIA
2012) (noting that alien received cancellation of removal
despite conviction for possession of crack cocaine); In re
Sotelo‐Sotelo, 23 I&N Dec. 201, 203 (BIA 2001) (explaining that
Board uses balancing test to determine if lawful permanent
residents deserve favorable exercise of discretion). But she did
not appeal, and she did not seek to reopen her proceedings
until after she had reentered the United States illegally. Her
underlying order therefore “is not subject to being reopened,”
8 U.S.C. § 1231(a)(5). Lacking the authority to reopen a removal
order after its reinstatement, the Board did not err by denying
her motion to reopen.
PETITION DENIED.