NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR ANTONIO HERNANDEZ- No. 20-70190
RIVERA, AKA Cesar R. Hernandez,
Agency No. A091-077-655
Petitioner,
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.
Cesar Hernandez-Rivera, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an
immigration judge’s (IJ) denial of his motion to reopen. We have jurisdiction under
8 U.S.C. § 1252, and we deny Hernandez-Rivera’s petition.
The BIA lacked jurisdiction to entertain Hernandez-Rivera’s motion to
reopen. Federal law clearly states that “[i]f 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) (emphasis added). This Court has
recognized that § 1231(a)(5)’s language “unambiguously bar[s] reopening a
reinstated prior removal order.” Cuenca v. Barr, 956 F.3d 1079, 1084 (9th Cir.
2020). Here, Hernandez-Rivera was deported from the United States in 1997, he
reentered the country illegally, his prior removal order was reinstated in 2003, and
he was deported once more. As a result, Hernandez-Rivera’s original deportation
proceedings cannot be reopened.
Hernandez-Rivera suggests that § 1231(a)(5)’s reinstatement bar should not
apply to him because he did not actually reenter the country illegally after his initial
deportation. But Hernandez-Rivera does not dispute that the former Immigration
and Naturalization Service reinstated his original deportation order in 2003 because
it determined that he reentered the country illegally after having been removed, and
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there is no indication in the record that he ever sought review of his deportation
order’s reinstatement. Thus, Hernandez-Rivera’s representations regarding his first
reentry into the United States are misplaced, and the reinstatement bar prevents him
from reopening his original deportation proceedings.
Finally, to the extent that Hernandez-Rivera challenges the BIA’s decision not
to reopen his deportation proceedings sua sponte, this Court lacks jurisdiction to
review such a claim absent a legal or constitutional error. See Bonilla v. Lynch, 840
F.3d 575, 588 (9th Cir. 2016). Hernandez-Rivera has not made such a showing.
PETITION DENIED.
3
Cesar Hernandez-Rivera v. Merrick Garland
Combined Opinion