SUATE-ORELLANA V. GARLAND, No. 19-72446 (9th Cir. 2024)
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The case involves Ninoska Suate-Orellana, who was ordered to be removed to Honduras in 2011 after her asylum application was denied. She reentered the U.S. illegally in 2014, and the Department of Homeland Security reinstated her prior removal order. Suate-Orellana filed a motion for reconsideration and termination of the underlying removal order, arguing that the Notice to Appear (NTA) in the original immigration proceedings was deficient under 8 U.S.C. § 1229(a)(1) because it did not state the time or date of her hearing. The immigration judge denied the motion, and the Board of Immigration Appeals (BIA) dismissed her appeal.
The United States Court of Appeals for the Ninth Circuit granted Suate-Orellana’s petition for review of the BIA’s dismissal. The court found that Suate-Orellana had exhausted her claim that her NTA was statutorily deficient. The court also held that 8 U.S.C. § 1231(a)(5), which bars reopening or review of an order of removal that has been reinstated, is not jurisdictional. The court concluded that the government had forfeited its claim that § 1231(a)(5) barred reopening in this case. The case was remanded to the BIA for reconsideration of the merits of Suate-Orellana’s claim in light of intervening authorities.
Court Description: Immigration. The panel granted Ninoska Suate-Orellana’s petition for review of the Board of Immigration Appeals’ dismissal of an appeal of an immigration judge’s denial of a motion for reconsideration and termination of an underlying removal order based on a defective Notice to Appear, and remanded, holding that: 1) Suate-Orellana had exhausted her claim that her NTA was statutorily deficient; 2) 8 U.S.C. § 1231(a)(5), which bars reopening or review of an order of removal that has been reinstated, is not jurisdictional; and 3) the government had forfeited its claim that § 1231(a)(5) barred reopening here.
After the Department of Homeland Security reinstated Suate-Orellana’s prior order of removal, she filed a motion for reconsideration and termination of the underlying removal order arguing that the Notice to Appear in the underlying immigration proceedings was statutorily deficient under 8 U.S.C. § 1229(a)(1) and Pereira v. Sessions, 585 U.S. 198 (2018), because it did not state the time or date of her hearing. The BIA did not discuss the timeliness of Suate-Orellana’s motion, nor the agency’s jurisdiction, and instead dismissed her appeal on the merits, stating that the NTA and the subsequently issued hearing notice together provided Suate-Orellana with the required notice. As an initial matter, the panel concluded Suate-Orellana had exhausted the claim that her NTA was statutorily deficient. Suate-Orellana’s arguments that she “was ordered removed on the basis of a putative Notice to Appear that did not contain the requisite time or place information under the INA” and that she “was never issued a valid Notice to Appear indicating the date and time of her proceedings, as the statute requires” were sufficient to put the BIA on notice of her challenge.
Noting that the legal landscape had changed significantly since the BIA’s decision dismissing her appeal, the panel remanded Suate-Orellana’s petition so that the BIA could reconsider the merits of her claim in light of intervening authorities.
The government argued that remand would be a useless formality because the BIA does not have jurisdiction to consider Suate-Orellana’s motion, in light of 8 U.S.C.
§ 1231(a)(5), which bars reopening or review of an order of removal that has been reinstated. Applying the framework of Santos-Zacaria v. Garland, 598 U.S. 411 (2023), the panel held that because § 1231(a)(5) does not “unmistakably” speak in jurisdictional terms, it is non-jurisdictional. The BIA therefore may—as it did here—exercise jurisdiction over an appeal concerning a motion to reopen a reinstated removal order. Because the government did not raise § 1231(a)(5) until the panel ordered supplemental briefing on the issue, the panel concluded that the issue had been forfeited. As a result, remand would not be idle and useless.
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