United States Court of Appeals

For the First Circuit

No. 20-1679

FABIO NOE GARCIA SARMIENTO,

Petitioner,

v.

MERRICK B. GARLAND,* Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge,

Lynch and Kayatta, Circuit Judges.

Susan M. Pires on brief for petitioner.

Timothy G. Hayes, Senior Litigation Counsel, Office of 

Immigration Litigation, Civil Division, United States Department 

of Justice, Brian Boynton, Acting Assistant Attorney General, and 

Cindy S. Ferrier, Assistant Director, Office of Immigration 

Litigation, on brief for respondent.

August 17, 2022

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General 

Merrick B. Garland has been substituted for former Attorney General 

William P. Barr as the respondent.
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LYNCH, Circuit Judge. Petitioner Fabio Noe Garcia 

Sarmiento purports to petition for review of two decisions of the 

Board of Immigration Appeals ("BIA"). In the first decision, dated 

January 16, 2020, the BIA dismissed Garcia Sarmiento's appeal of 

an Immigration Judge's ("IJ") denial of his application for 

withholding of removal, 8 U.S.C. § 1231(b)(3), and protection 

under the Convention Against Torture ("CAT"), 8 C.F.R. 

§ 1208.16(c). In the second, dated June 10, 2020, the BIA denied

his motion to reopen proceedings, 8 U.S.C. § 1229a(c)(7). Because 

the petition is timely only as to the June 10 decision, we dismiss 

Garcia Sarmiento's petition for review of the January 16 decision. 

As to the June 10 decision, we deny the petition to review the 

BIA's denial of the motion to reopen.

I.

These facts are drawn primarily from the IJ's oral 

decision of August 30, 2019, which was the subject of the January 

16, 2020 BIA decision. Garcia Sarmiento is a native and citizen 

of Honduras. He first entered the United States in 2001 as a 

lawful permanent resident. He was ordered removed and deported to 

Honduras in 2008 after he was convicted of possession of cocaine.

In Honduras, Garcia Sarmiento had a barbershop. Gang members came 

to his business several times in the summer of 2014 and threatened 

him, demanding that he pay them rent. In June of 2014, gang 

members killed Garcia Sarmiento's brother. Garcia Sarmiento left 
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Honduras and, fearing violence from the gangs, reentered the United 

States without inspection in 2014. Garcia Sarmiento pleaded guilty 

to illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(1) and 

was sentenced to time served. See Judgment in a Criminal Case, 

United States v. Garcia-Sarmiento, No. 18-cr-00108 (D.R.I. June 

14, 2019), ECF No. 26. On July 26, 2019, the Department of Homeland 

Security ("DHS") reinstated Garcia Sarmiento's previous removal 

order.

After expressing a fear of returning to Honduras, Garcia 

Sarmiento was referred to an asylum officer to determine his 

eligibility to apply for withholding of removal. Following an 

interview where it was determined Garcia Sarmiento had a reasonable 

fear of harm if he were returned to Honduras, he applied for 

withholding of removal. On August 30, 2019, Garcia Sarmiento had 

a hearing before an IJ. The IJ found that Garcia Sarmiento was 

credible. The IJ concluded that Garcia Sarmiento had not met his 

burden of showing eligibility for withholding of removal for three 

reasons: he had not demonstrated that he was a member of a 

protected social group, he had not shown the requisite nexus 

between his belonging to even his purported protected social group 

and the violence he feared, and he did not show that the Honduran 

government would be unwilling or unable to control the gang 

violence. See 8 U.S.C. § 1231(b)(3); see also Pulisir v. Mukasey, 

524 F.3d 302, 308 (1st Cir. 2008). The IJ found that CAT protection 
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was not warranted because there was insufficient evidence that 

Garcia Sarmiento would more likely than not be tortured if he 

returned to Honduras. This was based on the evidence that Garcia 

Sarmiento had never been harmed by government officials and his 

testimony that he did not think the police would harm him, he did 

not fear the police, and he did not know if police were working 

with the people who wanted to harm him or if they would allow 

others to hurt him. See 8 C.F.R. § 1208.18(a)(1); see also Ali v. 

Garland, 33 F.4th 47, 53 (1st Cir. 2022). On appeal, the BIA 

adopted and affirmed the IJ's decision on January 16, 2020.

Garcia Sarmiento filed a motion with the BIA to reopen 

removal proceedings regarding the 2008 removal order and to stay 

removal on January 24, 2020. See 8 U.S.C. § 1229a(c)(7). The 

basis of his motion was the vacatur of his cocaine-possession 

conviction, which had led to his removal in 2008. He argued that 

the vacatur of his cocaine-possession conviction would make him 

eligible for and likely to succeed on a claim for either 

cancellation of removal or voluntary departure.

On June 10, 2020, the BIA denied Garcia Sarmiento's 

motion to reopen, finding that he had not established prima facie 

eligibility for relief. The BIA first found that under section 

241(a)(5) of the Immigration and Nationality Act, Garcia Sarmiento 

was ineligible for relief because he was in withholding-only 

proceedings after having a prior removal order reinstated. See 8 
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U.S.C. § 1231(a)(5). It next found that even if Garcia Sarmiento 

were not barred from such relief, he had not demonstrated either 

that he had been continuously physically present in the United 

States for ten years or any hardship to qualifying relatives, both 

of which are necessary to establish a prima facie case for 

eligibility for cancellation of removal. See id. § 1229b(b)(1).

The BIA also found that the new evidence would "not impact the 

reasoning for the denial of his prior applications for relief."

Garcia Sarmiento timely petitioned for review of the 

June 10 BIA decision on July 9, 2020. See 8 U.S.C. § 1252(b)(1).

II.

A. January 16, 2020 BIA Decision

In his petition, Garcia Sarmiento argues that the BIA 

erred in dismissing his appeal of the IJ's determination that he 

was ineligible for withholding of removal. The government contends 

that this court lacks jurisdiction to review the January 16 

decision because Garcia Sarmiento did not file his petition within 

the statutorily required thirty days. See 8 U.S.C. § 1252(b)(1); 

see also Hurtado v. Lynch, 810 F.3d 91, 93 (1st Cir. 2016).1 Garcia 

1 There is some question as to whether the appropriate 

date to begin the thirty-day clock is the date of the BIA's denial 

of the appeal or the date that the removal order was reinstated. 

See Bhaktibhai-Patel v. Garland, 32 F.4th 180, 191-93 (2d Cir. 

2022) (finding that a reinstated removal order's reinstatement 

"became final on the day of that decision, order, and 

certification" rather than the date that the BIA affirmed the order
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Sarmiento did not file the present petition until July 9, 2020, 

well outside of the thirty-day deadline.

"A motion to reopen or reconsider does not toll the 

period for filing a petition for judicial review of the underlying 

order of deportation." Ven v. Ashcroft, 386 F.3d 357, 359 (1st 

Cir. 2004); see also Stone v. INS, 514 U.S. 386, 405-06 (1995). 

The thirty-day time limit to file petitions for review is a "strict 

jurisdictional requirement." Zhang v. INS, 348 F.3d 289, 292 (1st 

Cir. 2003). Accordingly, we do not have jurisdiction to hear 

Garcia Sarmiento's challenge to the January 16 decision.

B. June 10, 2020 BIA Decision

Our review of the BIA's denial of Garcia Sarmiento's 

motion to reopen is "under the highly deferential abuse-ofdiscretion standard." Adeyanju v. Garland, 27 F.4th 25, 51 (1st 

Cir. 2022) (internal quotation marks omitted) (quoting Tay-Chan v. 

Barr, 918 F.3d 209, 212 (1st Cir. 2019)). We will find an abuse 

of discretion only where the petitioner shows that the BIA 

"committed a material error of law or exercised its authority 

arbitrarily, capriciously, or irrationally." Id. (quoting TayChan, 918 F.3d at 212).

for purposes of the thirty-day time limit in section 1252). 

Because it would not change the outcome in the present case, we do 

not delve into this question.
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The BIA correctly found that Garcia Sarmiento is barred 

from reopening his removal order by 8 U.S.C. § 1231(a)(5). This 

provision states:

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 order of removal is reinstated from its 

original date and is not subject to being 

reopened or reviewed, 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.

Because Garcia Sarmiento reentered the country illegally in 2014

following removal, as the BIA concluded, he is now prohibited from 

the relief he seeks. See Lattab v. Ashcroft, 384 F.3d 8, 16 (1st 

Cir. 2004) ("[8 U.S.C. § 1231(a)(5)] subjects an illegal reentrant 

to three independent consequences: reinstatement of the prior 

deportation order, ineligibility for any relief, and removal.").

Many of our sister circuits have held that persons 

subject to reinstated removal orders following unlawful reentry 

are barred from reopening their orders of removal. See TarangoDelgado v. Garland, 19 F.4th 1233, 1238–39 (10th Cir. 2021); 

Sanchez-Gonzalez v. Garland, 4 F.4th 411, 414-15 (6th Cir. 2021); 

Gutierrez-Gutierrez v. Garland, 991 F.3d 990, 994 (8th Cir. 2021);

Cuenca v. Barr, 956 F.3d 1079, 1088 (9th Cir. 2020); Alfaro-Garcia

v. U.S. Att'y Gen., 981 F.3d 978, 983 (11th Cir. 2020); Rodriguez-
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Saragosa v. Sessions, 904 F.3d 349, 354 (5th Cir. 2018); TapiaLemos v. Holder, 696 F.3d 687, 689-90 (7th Cir. 2012). We agree.

We begin with the text of section 1231(a)(5). See Baker

v. Smith & Wesson, Inc., 40 F.4th 43, 48 (1st Cir. 2022). It 

states that where a petitioner "has reentered the United States 

illegally after having been removed," "the prior order of removal 

is reinstated from its original date and is not subject to being 

reopened." 8 U.S.C. § 1231(a)(5); see also Tarango-Delgado, 19 

F.4th at 1238-39. Here, Garcia Sarmiento does not contest that he 

was removed, unlawfully reentered the country, and is now the 

subject of a reinstated removal order. Under a plain reading of 

section 1231(a)(5), his reinstated removal order cannot be 

reopened. See Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2284 

(2021) ("[R]einstated orders are not subject to reopening or 

review . . . .").

This plain reading accords with Congress's decision to 

take a "harder line" with people who reenter the country unlawfully 

when it enacted the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, amending section 1231(a)(5) to apply 

to all illegal reentrants. Fernandez-Vargas v. Gonzales, 548 U.S. 

30, 33-35 (2006); accord Sanchez-Gonzalez, 4 F.4th at 415.

This reading also accords with the Supreme Court's 

discussion of withholding-only proceedings in Guzman Chavez. 

There, the Court only noted that withholding proceedings are 
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available to petitioners subject to reinstated removal orders. 

Guzman Chavez, 141 S. Ct. at 2282-83. In withholding-only 

proceedings, a petitioner can seek, as Garcia Sarmiento did, 

statutory withholding under section 1231(b)(3)(A) and withholding 

under the CAT. Id. at 2282. However, even obtaining protection

in withholding-only proceedings (which Garcia Sarmiento did not)

does not change the finality of the reinstated removal order; it 

only prevents removal to a specific country, not removal from the 

United States. Id. at 2285–86. As the Court explained, "removal 

orders and withholding-only proceedings address two distinct 

questions. . . . [A]nd the finality of the order of removal does 

not depend in any way on the outcome of the withholding-only 

proceedings." Id. at 2287. That Garcia Sarmiento entered into 

withholding-only proceedings does not affect the finality of his 

reinstated removal order, which the BIA correctly found is not 

subject to being reopened.

Finally, Garcia Sarmiento asserts that the BIA erred not 

only by denying his motion to reopen removal proceedings but also 

by failing to "otherwise grant" him voluntary departure. But to 

the extent Garcia Sarmiento now requests voluntary departure 

independent of his motion to reopen, we must dismiss his petition 

for failure to exhaust administrative remedies. "We have 

consistently held that 'arguments not raised before the BIA are 

waived due to a failure to exhaust administrative remedies.'" Shah
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v. Holder, 758 F.3d 32, 37 (1st Cir. 2014) (quoting Molina De 

Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir. 2007)). Garcia 

Sarmiento made only a passing reference before the BIA that, as 

part of reopening, he should be granted voluntary departure. The 

argument he makes to us was not exhausted before the agency. Nor 

does his petition argue that the BIA was incorrect to interpret 

his references to voluntary departure as part of his motion to 

reopen. That ends the matter.

III.

The petition is dismissed in part and denied in part.