NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 27 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO ESTRADA-MENDOZA, No. 19-72878
Petitioner, Agency No. A075-204-333
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2022**
Submission Withdrawn February 11, 2022
Resubmitted August 2, 2023
Phoenix, Arizona
Before: MURGUIA, Chief Judge, GRABER, Circuit Judge, and L. BURNS,***
District Judge.
Petitioner Alejandro Estrada-Mendoza is a native and citizen of Mexico who
*
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).
***
The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
first entered the United States unlawfully in 1989. In 1997, he was deported after
an immigration judge (“IJ”) found him removable, and Petitioner waived his right
to appeal. Just a few weeks later, he reentered without permission or inspection.
In July 1999, Petitioner was apprehended, and his 1997 removal order was
reinstated. In November 1999, he was convicted of illegal reentry in violation of 8
U.S.C. § 1326. After serving a few months in prison, Petitioner was removed to
Mexico again pursuant to the reinstated 1997 removal order. Once again, he
reentered without valid immigration documents allowing him to be present in the
United States. In 2018, following Petitioner’s arrest for driving under the
influence, United States Immigration and Customs Enforcement (“ICE”) took him
into custody. The Department of Homeland Security reinstated the previous
removal order pursuant to 8 U.S.C. § 1231(a)(5).
Petitioner did not appeal, but instead filed two separate motions in 2019.
First, he moved to reopen his 1997 removal proceedings, alleging that ineffective
assistance of counsel had foreclosed available avenues of voluntary departure and
cancellation of removal. An IJ denied the motion to reopen, ruling that he lacked
jurisdiction because of the bar contained in § 1231(a)(5), and the Board of
Immigration Appeals (“BIA”) agreed. Second, Petitioner moved to reopen and
rescind the 2018 reinstatement of the 1997 removal order. ICE denied this request,
explaining that “the totality of the circumstances do[es] not support a favorable
2
exercise of discretionary authority[.]” Petitioner timely sought review of both the
BIA’s and ICE’s decisions in this court.
1. Our review of the BIA’s denial of a motion to reopen “is limited to
determining whether the BIA erred in concluding that the IJ lacked jurisdiction.”
Bravo-Bravo v. Garland, 54 F.4th 634, 640 (9th Cir. 2022). Reviewing this legal
question de novo, Miller v. Sessions, 889 F.3d 998, 1001 (9th Cir. 2018), we agree
with the BIA and deny this part of the petition for review. Petitioner argues that
the BIA had authority to review his motion to reopen because he suffered a gross
miscarriage of justice in the initial removal proceeding. Bravo-Bravo forecloses
that argument; such a collateral attack may be raised “only in a petition for review
of a reinstatement proceeding or order.” 54 F.4th at 640 (citing Cuenca v. Barr,
956 F.3d 1079, 1087 (9th Cir. 2020)). We reject Petitioner’s argument that recent
Supreme Court decisions, such as Santos-Zacaria v. Garland, 598 U.S. 411 (2023),
affect the outcome. Those decisions applied longstanding rules that distinguish
between claim-processing rules and jurisdictional ones to statutes not applicable
here. None of the decisions that Petitioner cites is “clearly irreconcilable” with
Bravo-Bravo. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
2. Petitioner separately argues that ICE improperly denied his motion to
reopen and rescind the 2018 reinstatement order. ICE’s denial of Petitioner’s
motion was an exercise of its prosecutorial discretion. Morales de Soto v. Lynch,
3
824 F.3d 822, 825 (9th Cir. 2016). Accordingly, we lack jurisdiction and dismiss
this part of the petition for review. See Heckler v. Chaney, 470 U.S. 821, 831
(1985) (holding that an agency’s decision whether to prosecute or enforce is
“generally committed to an agency’s absolute discretion”); see also Morales de
Soto, 824 F.3d at 827 (holding courts lack authority to review the merits of ICE’s
discretionary decision to reinstate a prior removal order when the factual predicates
for reinstatement are met (citing 8 U.S.C. § 1252(a)(2)(B)).
PETITION DENIED IN PART and DISMISSED IN PART.
4