Opinion
18-72421
10-19-2022
ELMER TULIO AGUILAR RIVAS, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 17, 2022 [**] Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A097-587-144
Before TALLMAN, R. NELSON, and FORREST, Circuit Judges.
MEMORANDUM [*]
Elmer Tulio Aguilar Rivas was ordered removed from the United States on May 28, 2009. In 2013, Aguilar Rivas unlawfully reentered the United States, and the Department of Homeland Security reinstated his 2009 removal order. Aguilar Rivas sought a stay of removal and filed an untimely motion to reopen his 2009 1 removal proceedings, arguing he was not provided effective assistance of counsel. The Board of Immigration Appeals (BIA) denied on the merits.
"[T]his Court repeatedly has interpreted [8 U.S.C.] § 1231(a)(5) as divesting the BIA of jurisdiction to reopen a removal proceeding after reinstatement of the underlying removal order." Cuenca v. Barr, 956 F.3d 1079, 1084 (9th Cir. 2020) (citations omitted). "When the BIA denies a motion to reopen a reinstated removal order on grounds other than a lack of jurisdiction, we may deny a petition challenging that ruling based on the BIA's lack of jurisdiction under 8 U.S.C. § 1231(a)(5)." Gutierrez-Zavala v. Garland, 32 F.4th 806, 811 (9th Cir. 2022).
Therefore, the petition is DENIED. 2
[*] 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).