# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued September 23, 2019 Decided November 12, 2019

Before

FRANK H. EASTERBROOK, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19-1492

VICTOR MARTIN VILLA SERRANO, Petitioner ,

v

.
WILLIAM P. BARR, Attorney General of the United States, Respondent

. Petition for Review of an Order of the Board of Immigration Appeals.

No. A073-360-777

O R D E R

Petitioner Victor Martin Villa Serrano s eeks review of the Board of Immigration Appeals decision not to reopen or reconsid er a final removal order entered and later reinstated against him. We have jurisdicti on under 8 U.S.C. § 12 52(a)(1) and deny the petition.

I. Background We addressed Villa’s case recently in Villa v. Barr , 924 F.3d 370 (7th Cir. 2019). In brief, Villa was removed to his native Mexico under a final removal order issued in 2005 NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-1492 Page 2

upon his conviction in state court for posse ssing cocaine. In 2007, he reentered this country unlawfully. The Department of Ho meland Security apprehended Villa in 2018 and reinstated the 2005 removal order.

Villa has attacked the reinstatement from two directions. First, he petitioned for direct review of the reinstatement order in this court, which petition we dismissed in that earlier case. Id. at 375. Second, he asked the immigration judge to reopen or reconsider the 2005 removal order. The immigration judge denied the motion, and the Board of Immigration Appeals affirmed. This petition seeks review of that decision.

II. Analysis
A. Jurisdiction We have jurisdiction to review final or ders of removal. 8 U.S.C. § 1252(a)(1); Mata v. Lynch , 135 S. Ct. 2150, 2154 (2015). “That jurisd iction ... encompasses review of decisions refusing to reopen or reconsider such orders.” Mata , 135 S. Ct. at 2154, citing 8 U.S.C. § 1252(b)(6). As the latter thus depends on the former, “we do not have jurisdiction over the motions to reopen or reconsider if we lack jurisdiction over the underlying order.” Cruz-Mayaho v. Holder , 698 F.3d 574, 577 (7th Cir. 2012).
Our jurisdiction over the underlying 2005 order is limited by two statutory provisions: Villa’s failure to appeal within thirty days of its entry, see 8 U.S.C. § 1252(b)(1) and Cordova-Soto v. Holder , 732 F.3d 789, 793 (7th Cir. 2013); and Villa’s 2007 unlawful reentry and the resulting 2018 rein statement of the 2005 order. See 8 U.S.C. § 1231(a)(5) and Zambrano-Reyes v. Holder , 725 F.3d 744, 749 (7th Cir. 2013).
Neither provision bars our review for co nstitutional or legal error, however. See 8 U.S.C. § 1252(a)(2)(D) and Zambrano-Reyes , 725 F.3d at 749, 751. Villa alleges legal error in the 2005 removal order by arguing that it was entered without jurisdiction and a nullity. Under § 1252(a)(2)(D), we would have jurisdiction to review the 2005 order for constitutional or legal errors and thus have jurisdiction to review to the same extent the denial of the motion to reopen or reconsider. Zambrano-Reyes , 725 F.3d at 751.

To the extent that Villa made, and the Board considered, an oxymoronic request for the Board to exercise its discretion to reopen his removal proceedings sua sponte, see 8 C.F.R. § 1003.2(a), our jurisdiction is narrowly circumscribed to reviewing, at the very most, whether the Board misunderstood the basis for the request. See Malukas v. Barr , 940 F.3d 968, 970 (7th Cir. 2019), citing Fuller v. Whitaker , 914 F.3d 514, 520 (7th Cir. 2019).No. 19-1492 Page 3

B. Merits We review together the decisions of the immigration judge and the Board. Zhakypbaev v. Sessions , 880 F.3d 881, 883 (7th Cir. 2018), citing Bathula v. Holder , 723 F.3d 889, 897 (7th Cir. 2013). “We review the decision to deny a motion to reopen ‘for an abuse of discretion, upholding it unless it was made without rational explanation, inexplicably departed from established policie s, or rested on an impermissible basis.’” Bathula , 723 F.3d at 903, quoting Marinov v. Holder , 687 F.3d 365, 368 (7th Cir. 2012).
The immigration judge concluded, and the Board affirmed, that § 1231(a)(5) renders Villa ineligible for the relief he seeks. That paragraph provides,
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 alie n 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.
8 U.S.C. § 1231(a)(5) (emphasis added).

There was no abuse of discretion here. The Board “could not reopen [Villa’s] proceeding, and he is ineligible for the re lief he seeks,” notwithstanding any equitable tolling of the deadline within which to move to reopen or reconsider. Zambrano-Reyes
, 725 F.3d at 752; see also Cordova-Soto , 732 F.3d at 795–96 (reaching same result in case presenting many of the same equities as Villa’s).
To the extent that the Board held § 1231(a )(5) destroyed its regulatory discretion to reopen sua sponte, Villa has not shown that the Board mischaracterized the basis for his sua sponte reopening request.
Villa also contends that § 1231(a)(5) does not bar reopening or review in his case because there was never a “prior order of removal.” The 2005 order purporting to be a final order of removal was a nullity, argues Villa, because the statutory procedure for initiating removal proceedings was not co mplied with. See 8 U.S.C. § 1229(a)(1)(G)(i) (notices to appear must contain “time and pl ace” at which removal proceedings will be held); 8 C.F.R. § 1003.14(a) (“Jurisdiction vest s” in immigration court when notice to appear filed). However, we have recently held that a failure to comply with the timeNo. 19-1492 Page 4

and place requirements of § 1229(a)(1)(G)(i) is not a jurisdictional defect but only a claim-processing error that can be waived or forfeited. Ortiz-Santiago v. Barr , 924 F.3d 956, 963 (7th Cir. 2019) (“A failure to comply wi th the statute dictating the content of a Notice to Appear is not one of those funda mental flaws that divests a tribunal of adjudicatory authority.”), discussing among others Pereira v. Sessions , 138 S. Ct. 2105 (2018). Thus the 2005 removal order was not a nullity and § 1231(a)(5) bars its reopening or review.

Because it was not an abuse of discretio n to deny Villa relief for which he is statutorily ineligible, Villa ’s petition is DENIED.