FILED
NOT FOR PUBLICATION
JUL 9 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALLARDO GOMEZ-GOMEZ, No. 18-72800
Petitioner, Agency No. A075-103-309
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 7, 2021**
Seattle, Washington
Before: CLIFTON and IKUTA, Circuit Judges, and CALDWELL,*** District
Judge.
*
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 Karen K. Caldwell, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
Ballardo Gomez-Gomez, a native and citizen of Nicaragua, seeks review of
the decision of the Board of Immigration Appeals (BIA) denying his motion to
reopen his deportation proceedings. We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petition for review.
Because Gomez-Gomez’s removal order was reinstated for illegal reentry in
November 2012, it “is not subject to being reopened or reviewed” and Gomez-
Gomez “is not eligible and may not apply for” reopening. 8 U.S.C. § 1231(a)(5).
Section 1231(a)(5) “institut[es] a permanent jurisdictional bar” precluding a
motion to reopen under 8 U.S.C. § 1229a(c)(7). Cuenca v. Barr, 956 F.3d 1079,
1084 (9th Cir. 2020). This permanent bar applies both during the reinstatement
process and after it has concluded. See id. at 1085. We therefore reject
Gomez-Gomez’s argument that the bar no longer applies to him because his
reinstatement proceeding has concluded.
Gomez-Gomez forfeited his right to reopen his deportation proceedings
under § 1229a(c)(7) by reentering the country illegally. See id.; 8 U.S.C.
§ 1231(a)(5). Gomez-Gomez’s reliance on Morales-Izquierdo v. Gonzales, 486
F.3d 484, 495–96 (9th Cir. 2007), and Miller v. Sessions, 889 F.3d 998, 1002–03
(9th Cir. 2018), is misplaced, because the aliens in those cases sought rescission of
removal orders entered in absentia under 8 U.S.C. § 1229a(b)(5)(C)(ii), a form of
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relief not available to Gomez-Gomez. Gomez-Gomez points to no other statutory
provision “that confers upon him the right to reopen his prior removal proceeding
despite § 1231(a)(5)’s plain command.” Cuenca, 956 F.3d at 1086–87.
Because the reinstatement bar is permanent, we also reject Gomez-Gomez’s
argument that the reinstatement bar does not apply because he is currently outside
the United States. In context, Morales-Izquierdo’s statement that if an alien “has a
legitimate basis for challenging his prior removal order, he will be able to pursue it
after he leaves the country” applies only to aliens who did not reenter the United
States illegally after being removed. 486 F.3d at 498. As explained above, by
reentering the country illegally, Gomez-Gomez forfeited his right to reopen his
removal proceedings. 8 U.S.C. § 1231(a)(5). Therefore, the BIA did not err in
holding that it lacked the authority to reopen his deportation proceedings.
We also reject Gomez-Gomez’s argument that the reinstatement bar does not
apply because the underlying order in his deportation proceedings violated his due
process rights. Although Gomez-Gomez was entitled to fair procedures at his
deportation hearing, he forfeited his right to a readjudication of his final removal
order by unlawfully reentering the country. Cuenca, 956 F.3d at 1087–88.
Moreover, the reinstatement bar does not preclude relief through an application for
withholding of removal or under the Convention Against Torture in reinstatement
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proceedings, and does not preclude a “collateral attack on the underlying removal
order during review of the reinstatement order if the [alien] can show that he has
suffered a ‘gross miscarriage of justice’ in the initial deportation proceeding.” Id.
at 1087 (quoting Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133,
1138 (9th Cir. 2008)).
PETITION DENIED.
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Ballardo Gomez-Gomez v. Merrick Garland
Combined Opinion