Nicolas Navarro-Navarrete v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICOLAS NAVARRO-NAVARRETE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-70361
19-71181
Agency No. A089-815-349
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2022**
Phoenix, Arizona
Before: BYBEE and OWENS, Circuit Judges, and RAKOFF,*** District Judge.
Petitioner Nicolas Navarro-Navarrete, a native and citizen of Mexico,
petitions for review from the Board of Immigration Appeals’ (“BIA”) dismissal
* 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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and denial, respectively, of his two motions to reopen his reinstated removal order.
Navarro-Navarrete’s two petitions were consolidated before this court. The BIA
dismissed his appeal from the immigration judge’s (“IJ”) denial of his first motion
to reopen his reinstated removal order for lack of jurisdiction. The BIA denied his
second motion to reopen on the merits, rejecting Navarro-Navarrete’s claim that
the IJ in the underlying removal proceeding lacked jurisdiction because of a
defective Notice to Appear. As the parties are familiar with the facts, we do not
recount them here. We deny the petitions for review.
In general, noncitizens have the right to file one motion to reopen their
removal proceedings. 8 U.S.C. § 1229a(c)(7)(A). However, the provision
providing for reinstatement of a removal order, id. § 1231(a)(5), overrides this
right and prevents the reopening of a reinstated removal order. 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 v. Garland, 40
F.4th 911, 917 (9th Cir. 2022) (quoting Cuenca v. Barr, 956 F.3d 1079, 1084 (9th
Cir. 2020)). “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
914-15.

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Except for statutory exceptions not relevant here, no collateral attack on a
removal order which has been reinstated is permissible in a motion to reopen, not
even for a gross miscarriage of justice. Id. at 916; see also Cuenca, 956 F.3d at
1085-87 (distinguishing a case in which this court reviewed a reinstated removal
order because it “came . . . as a petition for review of a reinstatement order itself,
not from the denial of a motion to reopen”).
While the BIA dismissed Navarro-Navarrete’s first motion to reopen on the
ground that the IJ lacked jurisdiction, the BIA denied his second motion on the
merits, and typically, under the Chenery doctrine, our review is limited to the
grounds on which the agency’s action was based. Gutierrez-Zavala v. Garland, 32
F.4th 806, 810 (9th Cir. 2022). However, “where we review the denial of a motion
to reopen that the BIA did not have jurisdiction to consider, we need not remand
for the agency to reach that same conclusion because to do so would be an idle and
useless formality.” Id. (internal quotations and citation omitted). Thus, there is no
need to remand to the BIA to reconsider the question.
In sum, we deny Navarro-Navarrete’s petitions for review because the IJ and
BIA lacked jurisdiction over his motions to reopen his reinstated removal order.
PETTIONS FOR REVIEW DENIED.

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