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Zapata-Chacon v. Garland.

No. 20-9645. 10/25/2022. B.I.A. Judge McHugh. Conditional Permanent Resident—Removal—Reopen or Review Case—Reinstatement of Removal Order—Jurisdiction.

October 25, 2022

Petitioner was a conditional permanent US resident. In 1999, he admitted his removability based on a Colorado conviction for marijuana possession. An immigration judge (IJ) ordered petitioner’s removal, but petitioner subsequently illegally reentered the United States three times. In 2020, he filed a motion to reconsider the removal order, arguing that his marijuana possession conviction did not categorically match a federal “controlled substance offense” because Colorado’s marijuana definition was broader than the federal definition. An IJ denied the motion, and the Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s denial.

On petition for review, the government filed a letter pursuant to Fed. R. App. Proc. 28(j), contending that the IJ and the BIA lacked authority to reopen or review petitioner’s proceeding because he illegally reentered the United States. Under 8 USC § 1231(a)(5), the BIA lacks authority to review a prior removal order or to grant any relief under Title 8 once a removed alien illegally reenters the United States. Here, there is no dispute that petitioner illegally reentered the United States on three occasions. Nevertheless, petitioner contended that the government did not timely raise its § 1231(a)(5) argument and that neither the IJ nor the BIA relied on its argument. However, a party may invoke a jurisdictional argument at any time in the proceedings, and petitioner conceded that the argument is jurisdictional.

Petitioner also argued that § 1231(a)(5) is not applicable to him because his 1999 removal order was not reinstated following his most recent illegal reentry. However, the 1999 order was reinstated following petitioner’s 2005 illegal reentry, and it sufficiently precludes the BIA from reviewing this case.

The petition for review was denied.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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