NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE GUTIERREZ

- ZAVALA ,

Petitioner ,

v.
MERRICK B. GARLAND , Attorney General , Respondent

. No. 20

- 73398 Agency No. A090

- 155

- 378

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals
S ubmitted February 14 , 202 2 ** Pasadena, California
Before: BRESS and BUMATAY , Circuit Judges, and GLEASON, * * * District Judge.
Jose Gutierrez

- Zavala , a native and citizen of Mexico, petitions for review of

a Board of Immigration Appeals (BIA) order denying his untimely motion to reopen

* 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 Sharon L. Gleason, Chief United States District Judge for the District of Alaska, sitting by designation. 

# FILED

MAR 2 2022
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

his removal proceedings. We review the BIA’s denial of a motion to reopen for an
abuse of discretion , but we review purely legal questions de novo

. Cuenca v. Barr , 956 F.3d 1079, 1084 (9th Cir. 2020)

. We have jurisdiction pursuant to 8 U.S.C. § 1252, we grant the pending motion for judicial notice, and we d eny the petition.
We first address th e government’s motion to take judicial notice of the Department of Homeland Security’s Notice of Intent/ Decision to Reinstate Prior
Order. The record demonstrates that the BIA was aware of and considered the Notice of Intent/Decision to Reinstate, althoug h it did not base its decision on the
reinstatement of the removal order. Gutierrez

- Zavala asserts that neither he nor his
counsel were served with the order of reinstatement of removal and so the
reinstatement of removal order cannot serve as a final ord er that deprived the BIA

o f jurisdiction

. However, Gutierrez

- Zavala signed an acknowledgement of the Department of Homeland Security’s determination to reinstate the prior removal
order. The motion for judicial notice at Docket 35 is therefore GRANTED. 8 U.S.C. § 1231(a)(5) provides that a prior order o f removal “ is not subject to being reopened” if “the Attorney General finds that an alien has reentered the United States illegally after having been removed

. . . [and] the prior order of removal is reinstated from its original date

. ” In Cuenca , 956 F.3d at 108 8 , we held that § 1231(a)(5) deprives the BIA of jurisdiction to consider a motion to reopen f iled by3

an alien who unlawfully reenter ed the United States after deportati on and whose
removal order ha s been reinstated

. Here, Gutierrez

- Zavala was found removable in 1999 ; he was deported from
the United States in 2003 ; he then unlawfully reentered the country ; and the removal order was reinstated in 2019. After the removal order was reinstated, and 17 years after his original removal, Gutierrez

- Zavala filed a motion to reopen proceedings with the BIA pursuant to 8 U.S.C. § 1229a(c)(7) and the BIA’s sua sponte a uthority

. Section 1231(a)(5) barred the reopening of Gutierrez

- Zavala’s removal proceedings.
See Cuenca , 956 F.3d at 1088.
The BIA did not deny Gu tierrez

- Zavala’s motion to reopen on this ground. Instead, the BIA determined that the motion was untimely and that equitable tolling
due to ineffective assistance of counsel and a change in the law was not warranted.
The BIA also decided not to exercise its discretion to sua sponte reopen the proceedings based on interests of finality. Although this c ourt’s review of BIA
decisions is generally limited to the grounds on which the BIA based its decision,
that doctrine does not apply where the BIA had no jurisdiction to consider the motion
to reopen and was statutorily required to deny the motion. See Morgan St anley Cap

. Grp. Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cnty. , 554 U.S. 527, 544

– 45 (2008).
Because we conclude that the BIA did not have jurisdiction to consider Gutierrez

-4

Zavala’s motion to reopen, we do not address his arguments regarding equitable tolling and the BIA’s sua sponte authority to reopen proceedings

. PETITION DENIED
.