NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL SORIA-ESTRADA, No. 21-522
Agency No.
Petitioner, A070-031-404
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2023**
Phoenix, Arizona
Before: TALLMAN, OWENS, and BADE, Circuit Judges.
Miguel Soria-Estrada, a native and citizen of Mexico, petitions for review
of the Board of Immigrations Appeals’ (“BIA”) dismissal of his appeal from an
immigration judge’s decision denying his motion to reopen his reinstated
removal order. As the parties are familiar with the facts, we do not recount
them here. We have jurisdiction under 8 U.S.C. § 1252. See Bravo-Bravo v.
*
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).
Garland, 54 F.4th 634, 638 (9th Cir. 2022) (“Although we have jurisdiction to
review the denial of a motion to reopen a reinstated removal order for legal or
constitutional error [under 8 U.S.C. § 1252(a)(2)(D)], our review is generally
limited to ascertaining that the BIA was required to deny such a motion for lack
of jurisdiction.”). We deny the petition for review.
Under 8 U.S.C. § 1231(a)(5), if a non-citizen has illegally reentered the
United States after having been removed, “the prior order of removal is
reinstated from its original date and is not subject to being reopened or
reviewed.” Section 1231(a)(5) “‘unambiguously bar[s] reopening a reinstated
prior removal order’ and . . . divest[s] the BIA ‘of jurisdiction to reopen a
removal proceeding after reinstatement of the underlying removal order.’”
Bravo-Bravo, 54 F.4th at 640 (quoting Cuenca v. Barr, 956 F.3d 1079, 1084
(9th Cir. 2020)). No collateral attack on a reinstated removal order is
permissible in a motion to reopen, not even for a gross miscarriage of justice.
Id. “Accordingly, the BIA is required to deny such a motion to reopen for lack
of jurisdiction,” and “we will deny a petition to review that denial.” Id. at 638
(citing Gutierrez-Zavala v. Garland, 32 F.4th 806, 810 (9th Cir. 2022)).
Soria-Estrada argues that he is exempt from § 1231(a)(5) because he was
removed from and reentered the United States, and took affirmative steps to
obtain adjustment of status, before the statute’s effective date of April 1, 1997.
However, Soria-Estrada fails to show that he took sufficient action to obtain
adjustment of status before the effective date. See Montoya v. Holder, 744 F.3d
2 21-522
614, 616-17 (9th Cir. 2014) (holding that § 1231(a)(5) applied to the petitioner
because she “took no pre-enactment action sufficient to create a vested right to
apply for adjustment” since “the mere filing and approval of a Form I-130
creates no vested right to apply for adjustment of status”).
The stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.
3 21-522