PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ EDGAR TARANGO-DELGADO, a/k/a Armondo De Santiago, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. Nos. 19-9615 & 20-9619

________________ _________________ Petition for Review from an Order of the Board of Immigr ation Appeals

________________ _________________ Stephen Petrany of Jo nes Day, Washington D.C. (Brittney Lane Kubisch of Jones Day, Los Angeles, California; Ryan Proctor of Jones Day, Washington D.C.; Nicole C. Henning of Jones Day, Chicago, Illinois; Charles Roth of National Immigrant Justice Center, Chicago, Illinois, on the briefs) for Petitioner-Appellant. Jeffery R. Leist, Senior Litigation Counsel, Office of Immigration Litigation (Brian Boynton, Acting Assistant Attorney, Gene ral Civil Division; Anthony C. Payne, Assistant Director, Office of Immigration Litig ation, Department of Justice with him on the brief), Washington D.C ., for Respondent-Appellee.

________________ _________________ Before HARTZ , PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### December 2, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 12 Petitioner Edgar Tarango-Delg ado appeals the Board of Immigration Appeals’ (“BIA”) denial of his two motions to reopen his removal proceedings. Because 8 U.S.C. § 1231(a)(5 ) bars Tarango-Delgado from such relief, we affirm.

BACKGROUND I. Factual Background Tarango-Delgado, a citizen of Mexico, came to the United States in 1977, when he was seven months old. He became a lawful permanent re sident at age ten. And for almost four decades, he lived in this country with his parents, siblings, wife, and children—all of whom are now U.S. citizens. In 2015, state police a rrested Tarango-Delgado and charged him with aggravated animal cruelty, a felony. He pl eaded guilty to that charge. But, before entering his plea, his counsel failed to a dvise him that pleading guilty would have deportation consequences unde r 8 U.S.C. § 1227(a)(2)(A)(i i). Those consequences arose because aggravated animal crue lty is a crime of moral turpitude. 1 A few months after he pleaded guilty, the government commenced removal proceedings against him.
II. Procedural Background To challenge his removal, Tarango-Delg ado took two actions . First, he moved for post-conviction relief in Colorado stat e court, arguing that his counsel had

1 In 1997, Tarango-Delgado was conv icted of second-degree burglary in Colorado state court. This bur glary conviction counted as hi s first qualifying crime of moral turpitude. Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 23 provided ineffective assistan ce under the Sixth Amendmen t by not advising him of the immigration consequences of a gu ilty plea and conviction. FAR at 216–25 (relying on Padilla v. Kentucky , 559 U.S. 356 (2010)). Second, he applied for cancellation of removal under 8 U.S.C. § 1229b(a) before an immigration judge (“IJ”). 2 In October 2017, with the ineffectiv e-assistance-of-cou nsel motion still pending, an IJ denied Tarango-Delgado’ s motion for cancellation of removal. Tarango-Delgado didn’t appeal the IJ’s deci sion, and he was removed to Mexico in November 2017. Almost a year after his removal, a Colorado state court ruled on TarangoDelgado’s ineffective-assi stance-of-counsel motion. Un surprisingly, that court concluded that Tarango-Delg ado had not “knowingly a nd voluntarily” pleaded guilty to the aggravated-animal-cruelty charge, b ecause his attorney had not advised him of the immigration consequences of a guilty plea. So it vacated his conviction and reinstated the original aggrav ated-animal-cruelty charge.
A. First Motion to Reopen In January 2019, with his aggravated -animal-cruelty conviction vacated and the charge reinstated, Tarango-Delgado filed his first motion to reopen his immigration proceedings before an IJ. He argued that his deadline to move to reopen

2 Section 1229b(a) is a form of discretionary relief that allows an IJ to cancel a removal order if an applicant can sa tisfy certain statut ory requirements. Torres de la Cruz v. Maurer , 483 F.3d 1013, 1019–20 (10th Cir. 2007). Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 34 had been equitably tolled while his Co lorado ineffective-assistance-of-counsel motion was pending. Tarango-Delgado also argued for the IJ to sua sponte reopen his case under 8 C.F.R. § 1003.23(b ), contending that the vacat ur of his animal-cruelty conviction should qualify as an exceptional circumstance. The IJ denied Tarango-Delgado’s moti on to reopen. It ruled that TarangoDelgado was not entitled to equitable tollin g, because he had not exercised diligence in moving to reopen his cas e. The IJ also declined to reopen the case sua sponte because, despite the state cour t’s vacating the conviction, it reinstated the original animal-cruelty charge, enabling the state to r ecommence its prosecution. Tarango-Delgado appealed the IJ’s d ecision, but the BIA dismissed. He challenges the BIA’s decision.
B. Tarango-Delgado’s Unlawful Reentry In late February or earl y March 2019, a few days after the IJ denied TarangoDelgado’s first motion to reopen, he reen tered this country w ithout authorization. 3 And a few weeks later, afte r the Department of Homela nd Security (“DHS”) learned about the illegal reentry, it reinstated Tarango-Delgad o’s prior removal order.

3 According to the IJ’s factual summa ry, Tarango-Delgado illegally reentered the country on February 29, 2019. But as Tarango-Delgado points out, that date must be wrong because 2019 was not a leap year. So Tarango-Delgado most likely reentered the country on Febr uary 28 or March 1—about three days after the IJ denied his first mo tion to reopen. Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 45 About two weeks after DHS reinstated his remova l order, Tarango-Delgado applied for withholding of removal under the Convention Against Torture (“CAT”). 4 An asylum officer found that Tarango-Delga do credibly feared returning to Mexico and referred his petition to an IJ. But the IJ denied his petition for CAT relief. 5 The BIA affirmed. Tarango-Delgado does not challenge the BIA’s decision.
C. Second Motion to Reopen In December 2019, Tarango-Delgado pleaded guilty to a misdemeanor animalcruelty charge, which by definition would no longer qualify as a crime of moral turpitude. Having eliminated his second qu alifying conviction for a crime of moral turpitude (the earlier burgl ary conviction being his firs t), Tarango-Delgado filed a second motion to reopen his immigration proceedings. But the government also raised a ne w argument: that 8 U.S.C. § 1231(a)(5) barred consideration of Tara ngo-Delgado’s motion because he had illegally reentered

4 The CAT allows a petitioner to obtain withholding of removal if he can show “that it is more likely than not that he or she would be tortured if removed” to a particular country. Elzour v. Ashcroft , 378 F.3d 1143, 1150 (10th Cir. 2004); see also 8 C.F.R. § 208.16(c). Though Tarango-De lgado applied for relief under only the CAT, the IJ also considered whether he w ould be eligible for relief under 8 U.S.C. § 1231(b)(3). That statute would prohib it Tarango-Delgado’s removal on a showing that his “life or freedom would be thr eatened” because of hi s “race, religion, nationality, membership in a particular soci al group, or political opinion” if he were removed to Mexico. 8 U.S.C. § 1231(b)(3).

5 Ultimately, the IJ deni ed the petition because Tara ngo-Delgado had failed to show (1) that he would be tortured if rem oved to Mexico or (2) that he qualified as a member of a “particular soci al group” to be eligible for relief under § 1231(b)(3). Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 56 the United States after bei ng removed. The BIA sided with the government. TarangoDelgado appeals the BIA’ s affirmance as well.
DISCUSSION Tarango-Delgado appeals the BIA’s deni al of his two motions to reopen. 6 Because we conclude that 8 U.S.C. § 123 1(a)(5) bars the reopening of his removal proceedings, we affirm the BIA’s denials.
I. Jurisdiction We first resolve whether we have juri sdiction over Tarango-Delgado’s appeal. Under 8 U.S.C. § 1252(b)(1), we have juri sdiction to review removal orders only if the petition for review is filed within “30 days after the date of the final order of removal.” Since Tarango-Delgado’s final order of removal was filed in October 2017, our authority to review the removal order itself expired in November 2017. But Tarango-Delgado does not challenge the removal order, or even its reinstatement. Rather, he a ppeals the BIA’s denial of hi s two motions to reopen. And since he appealed those decisions within thirty days of thei r denial, he cleared § 1252(b)(1)’s procedural hurdle. See Bhattarai v. Holder , 408 F. App’x 212, 215 (10th Cir. 2011). Next, we turn to 8 U.S.C. § 125 2(a)(2)(D)—the “savings clause.” SanchezGonzalez v. Garland , 4 F.4th 411, 414 (6th Cir. 2021). Th at statute states that “[no]

6 As to his first motion, Tarango-De lgado argues that the BIA erred in concluding that his ineffec tive-assistance-of-counsel moti on had not equitably tolled his statutory deadline to reopen his immigra tion proceedings while it was pending in Colorado state court. We do not reach this issue because we affirm on other grounds. Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 67 other provision of this chapter . . . which lim its or eliminates judi cial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 125 2(a)(2)(D). “Section 123 1 is in the same chapter as § 1252.” Ramirez-Molina v. Ziglar , 436 F.3d 508, 513 (5th Cir. 2006). Thus, § 1252(a)(2)(D) applies to § 1231(a)(5). See id. Said another way, we have jurisdiction over Tarango-Delgado’s motions to reopen so long as they raise “constitutional claims or questions of law.” See Sanchez-Gonzalez , 4 F.4th at 413. The BIA denied Tarango-Delgado’s s econd motion to reopen after concluding that § 1231(a)(5) barred review or reopeni ng of the removal order. Whether the BIA correctly interpreted th e statute is a question of law, so we have jurisdiction to review that question. Id. at 413–14.
II. Standard of Review We review de novo constitu tional and legal questions. Lorenzo v. Mukasey , 508 F.3d 1278, 1282 (10th Cir. 2007). But we defe r to DHS’s reasonable interpretations of the st atutes it administers. See Reyes-Vargas v. Barr , 958 F.3d 1295, 1300–02 ( 10th Cir. 2020).
III. Section 1231(a)(5) Forecloses Taran go-Delgado’s Moti ons to Reopen As with all questions of statutory interpretation, we begin with the text: If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior orde r of removal is re instated from its original date and is not subject to being reopened or re viewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry. Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 78 8 U.S.C. § 1231(a)(5). Based on the statute’s text, once Tara ngo-Delgado illegally reentered the country, the BIA lacked authority to reopen Tarango-Delgado’s removal order. Several circuits agree w ith this interpretation. See Sanchez-Gonzalez , 4 F.4th at 415 (6th Circuit); Gutierrez-Gutierrez v. Garland , 991 F.3d 990, 994 (8th Cir. 2021);
Cuenca v. Barr , 956 F.3d 1079, 1084 (9th Cir. 2020); Rodriguez-Saragosa v.
Sessions , 904 F.3d 349, 354 (5th Cir. 2018); Cordova-Soto v. Holder , 732 F.3d 789, 794 (7th Cir. 2013). Our reading also reflects Congress’s de cision to “toe[] a harder line” with illegal reentrants. Fernandez-Vargas v. Gonzales , 548 U.S. 30, 34 (2006). Before 1996, “only a limited class of illegal reentran ts” were subject to re instatement of their prior removal order. Id. And even then, many still “coul d seek some varieties of discretionary relief.” Id. But in 1996, Congress ame nded the statute so that reinstatement applied “to all ill egal reentrants, ‘expanded th e types of orders that can be reinstated and limited the relief available to aliens whose orders are reinstated.’”
Cuenca , 956 F.3d at 1084 (quoting Padilla v. Ashcroft , 334 F.3d 921, 924 (9th Cir. 2003)). Congress thus sought to deny illega l reentrants “any benefits from [their] latest violation of U.S. law.” Morales-Izquierdo v. Gonzales , 486 F.3d 484, 498 (9th Cir. 2007). In short, § 1231(a)(5) means what it says. And becau se Tarango-Delgado “reentered the United States illegally after having been removed,” his prior removal order was reinstated “from its original date ” and “is not subject to being reopened.” Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 89 8 U.S.C. § 1231(a)(5). Thus, § 1231(a)(5) unambiguou sly forecloses both of Tarango-Delgado’s motions to reopen.
IV. There Is No Gross-Miscarriage-of-J ustice Exception in § 1231(a)(5) Still, Tarango-Delgado argues that § 1231(a)(5) does not apply because his original removal proceedings resulted from a “gross miscarriag e of justice.” But given the statute’s clear dire ctive, we cannot read this exception into § 1231(a)(5). Some courts have adopted such an ex ception for illegal re entrants—albeit in slightly different contexts. The Ninth Circuit, for exampl e, permits review of an underlying order “if the petitioner can show that he has suffered a ‘gross miscarriage of justice’ in the ini tial deportation proceeding.” Vega-Anguiano v. Barr , 982 F.3d 542, 547 (9th Cir. 2019). The Third and Fift h Circuits allow collateral attacks on underlying removal petitions if a petitioner can estab lish a “gross miscarriage of justice.” See Debeato v. Att’y Gen. of U.S. , 505 F.3d 231, 235 (3d Cir. 2007) (requiring a “gross miscarriag e of justice” as “a pr erequisite to relief”); RamirezMolina , 436 F.3d at 514 (requiring a “gross miscar riage of justice” as a jurisdictional requirement for a collateral at tack on a removal order). But at least one other circu it has rejected this exception. 7 In SanchezGonzalez —a case much like ours—the Sixth Circ uit held that a “gross-miscarriageof-justice exception is contrary to the text of 8 U.S.C. § 1231(a)(5).” 4 F.4th at 415.

7 The Eighth Circuit also rejected a gross-miscarriage-o f-justice exception within § 1231(a)(5). Gutierrez-Gutierrez , 991 F.3d at 994. Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 910 We agree with the Sixth Circuit. Though it may be tempting to create a judicial exception, § 1231(a)’s language leaves no room for one. See Recovery Res. Corp. v. United States , 930 F.2d 804, 805 (10th Cir. 1991) (“ When the terms of a statute are unambiguous, we do not create excep tions or modifications.”). And even if a gross-miscarriage-of-j ustice exception existe d, Tarango-Delgado would not qualify for it. Using the Ninth Circuit’s articulati on, a gross miscarriage of justice occurs “when a deportation or remo val order had no valid legal basis at the time of its issuance or at the time of its execution.” Vega-Anguiano , 982 F.3d at 547. When the removal order was issued and executed, Tarango-Delgado’s removal was valid because he was twice convicted for crim es of moral turpitude . That one of those convictions was later overturned does not change our anal ysis. As we ha ve explained, the “pendency of post-convic tion motions . . . does not vitiate finality for removal
purposes, unless and until the convictions are overturned .” Waugh v. Holder , 642 F.3d 1279, 1284 (10th Cir. 2011) (emphasis added) (quoting Paredes v. Att’y Gen. of
U.S. , 528 F.3d 196, 198– 99 (3d Cir. 2008)). Thus, because Tarango-Delgado’s aggravated-animal-cruelty c onviction was not overturned un til after his removal, his removal—at the time—was valid. See Sanchez-Gonzalez , 4 F.4th at 416 (collecting cases that explain wh y post-conviction relief does not i nvalidate the original removal proceedings). Tarango-Delgado’s attempt to anal ogize his case to the fundamentalmiscarriage-of-justice exceptio n in federal habeas proceedi ngs is also unavailing. In that context, the gross-miscarriage-o f-justice exception permits a prisoner to Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 1011 overcome procedural bars to habeas relief on a “cr edible showing of actual innocence.” McQuiggin v. Perkins , 569 U.S. 383, 392 (2013). Tarango-Delgado argues that the gross-misc arriage-of-justice exceptio n for § 1231(a)(5) should likewise allow him to overcome the statute’ s reopening bar if he can prove he is “actually innocent” of the “r emovability charged raised ag ainst him under the law in effect at the time of his re moval.” Opening Br. at 40. This argument has three problems. Firs t, Tarango-Delgado cites no authority adopting his version of the gross-miscarri age-of-justice exception. Second, even if this version applied, hi s constitutionally infirm plea notwithstanding, TarangoDelgado has not shown that he was “actually innocent” of his conviction. Finally, as we explained above, “the law in effect at the time of his removal” permitted TarangoDelgado’s removal because his post-convi ction motion had not yet been granted. 8 In sum, § 1231(a)(5)’s text precl udes any attempt to engraft a grossmiscarriage-of-justice ex ception. So § 1231(a)(5) fo recloses Tarango-Delgado’s motions to reopen.

8 Our reading of § 1231(a)(5) aligns w ith other relevant doctrines, like the fugitive-disentitlement doctrine. “That doctr ine allows courts to dismiss criminal appeals to prevent fugitives from enjoying the benefits of an appeal while flouting the judgments that k eep them in custody.” Cordova-Soto , 732 F.3d at 795. Thus, because Tarango-Delgado broke our laws by illegally reentering the country, he has lost the right to reopen his case. And while Tarango-Delgado rightfully points out that the fugitive-disentitle ment doctrine is discreti onary, “[t]he language of § 1231(a)(5) barring relief here is a mandatory di rective in a statute.” Id. Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 1112 V. Section 1231(a)(5) Has Not Been Unconstitutionally Applied Next, Tarango-Delgado argues that § 1231(a)(5) unconstitutionally deprives him of his right to reopen. We disagree. Section 1231(a)(5) would not have prevented Tarango-Delgado from moving to reopen if he had filed that motion without reentering illegally. See RodriguezSaragosa , 904 F.3d at 354–55. But once he reen tered, he forfeited that right. See id. at 354. If Tarango-Delgado had legitimate cause to challenge his removal, he had the chance to pursue that claim while he was outside the country, “just like every other alien in his position.” Morales-Izquierdo , 486 F.3d at 498. This interpretation does not force Ta rango-Delgado to choose between risking his life and proving that he was not remova ble, as he argues. Assuming he reasonably feared persecution, he could have legally presented himself at the border and sought asylum. Instead, he chose not to avai l himself of those procedures until after he had already illegally reentered. He now faces th e consequence of that choice—the loss of his right to reopen his removal proceedings.
VI. Tarango-Delgado Is Not Entitled to Nunc Pro Tunc Relief Finally, Tarango-Delgado main tains that nunc pro tunc relief permits avoidance of § 1231’s reopening bar. 9 As Tarango-Delgado sees it, we can grant him

9 Nunc pro tunc means, “now for then.” Zhang v. Holder , 617 F.3d 650, 665 n.13 (2d Cir. 2010). Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 1213 relief from the date of the IJ ’s “wrongful” denial of hi s first motion to reopen. And because that denial preceded his illegal reentry, § 1231(a)(5) would not apply. Nunc pro tunc is an equitable remedy that cour ts have applied in immigration proceedings. Zhang , 617 F.3d at 665. But as an equitabl e remedy, unclean hands can bar such relief. Edwards v. I.N.S. , 393 F.3d 299, 311 n.15 ( 2d Cir. 2004). So even assuming this doctrine would allow us to reach back to the IJ ’s decision, TarangoDelgado would not be entitled to relief b ecause his illegal reen try disqualified him for equitable relief. Thus, the doctrine of nunc pro tunc cannot save Tarango- Delgado’s appeal.
CONCLUSION We affirm the denial of Tarango -Delgado’s motions to reopen under § 1231(a)(5). 10

10 We accept Tarango-Delga do’s amended motions for in forma pauperis status and grant the motions. Appellate Case: 19-9615 Document: 010110613259 Date Filed: 12/02/2021 Page: 13