NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIAS VELAZQUEZ-MANZANALES, No. 21-443
Agency No.
Petitioner, A075-105-177
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2023**
Seattle, Washington
Before: McKEOWN, N.R. SMITH, and SANCHEZ, Circuit Judges.
Elias Velazquez-Manzanales petitions for review of the Board of
Immigration Appeals’ (“BIA”) final removal order affirming an Immigration
Judge’s denial of his motion to reopen his prior removal proceedings, which
*
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).
included a 1998 removal order and a 2018 reinstated removal order. We have
jurisdiction under 8 U.S.C. § 1252. We deny the petition.1 Because the parties are
familiar with the facts, we need not recount them here.
“Although we have jurisdiction to review the denial of a motion to reopen a
reinstated removal order for legal or constitutional error, our review is generally
limited to ascertaining that the BIA was required to deny such a motion for lack of
jurisdiction.” Bravo-Bravo v. Garland, 54 F.4th 634, 638 (9th Cir. 2022) (internal
citations omitted). As we held in Cuenca v. Barr, 8 U.S.C. § 1231(a)(5)
“unambiguously bar[s] reopening a reinstated prior removal order” if an individual
has unlawfully reentered the United States after having been removed. 956 F.3d
1079, 1084 (9th Cir. 2020) (as amended). “Accordingly, the BIA is required to
deny such a motion to reopen for lack of jurisdiction.” Bravo-Bravo, 54 F.4th at
638 (citing Gutierrez-Zavala v. Garland, 32 F.4th 806, 810 (9th Cir. 2022)).
The BIA was required to deny Velazquez-Manzanales’s motion to reopen
for lack of jurisdiction. Velazquez-Manzanales was removed from the United
States in April 1998 and conceded that he unlawfully reentered the country two
1
We also deny the government’s outstanding motion to supplement the record with
the docket and dismissal order from the district court proceedings regarding the
prosecution of Velazquez-Manzanales for illegal reentry. The events in the docket
and the dismissal order referenced in the government’s briefing are already
included in the administrative record. 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of
appeals shall decide the petition only on the administrative record on which the
order of removal is based.”).
2 21-443
weeks later. In October 2018, the 1998 removal order was reinstated.2 Therefore,
Velazquez-Manzanales’s motion falls under the purview of 8 U.S.C. § 1231(a)(5),
precluding the reopening of the 1998 removal order. See Cuenca, 956 F.3d at
1088. Because of this jurisdictional bar, the BIA did not err in declining to address
Velazquez-Manzanales’s request that his removal proceedings be reopened for him
to apply for cancellation of removal. See Vega-Anguiano v. Barr, 982 F.3d 542,
551 (9th Cir. 2019) (as amended) (“An alien removed under a reinstatement order
is ineligible for [cancellation of removal].”).
Velazquez-Manzanales’s remaining arguments are not properly before this
court. His collateral attack on the initial removal order and arguments pertaining
to the reinstatement order can only be considered in a petition for review of the
reinstatement order or proceeding itself. See Perez-Camacho v. Garland, 54 F.4th
597, 605 (9th Cir. 2022). However, Velazquez-Manzanales did not timely petition
for review of the reinstatement order; the current petition solely concerns the
denial of his motion to reopen. See Vega-Anguiano, 982 F.3d at 545. Therefore,
he “cannot raise arguments that are available for an alien who is challenging a
2
Velazquez-Manzanales’s argument that section 1231(a)(5) does not apply here
because the government has not “executed” the reinstatement order is foreclosed
by Cuenca. 956 F.3d at 1082, 1088. Velazquez-Manzanales received a written
determination and was given an opportunity in October 2018 to make a statement
contesting that determination; his removal order was reinstated, triggering the
jurisdictional bar.
3 21-443
reinstatement proceeding or reinstatement order.” Perez-Camacho, 54 F.4th at
607.
PETITION DENIED.
4 21-443