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 seeks review of the Board of Immigration 

Appeals decision not to reopen or reconsider a final removal order entered and later 

reinstated against him. We have jurisdiction under 8 U.S.C. § 1252(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NONPRECEDENTIAL DISPOSITION 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 only in accordance with Fed. R. App. P. 32.1 
No. 19-1492 Page 2 

upon his conviction in state court for possessing cocaine. In 2007, he reentered this 

country unlawfully. The Department of Homeland 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 orders of removal. 8 U.S.C. § 1252(a)(1); Mata 

v. Lynch, 135 S. Ct. 2150, 2154 (2015). “That jurisdiction ... 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 reinstatement 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 constitutional 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 policies, 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 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. 

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 relief 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 complied with. See 8 U.S.C. § 1229(a)(1)(G)(i) 

(notices to appear must contain “time and place” at which removal proceedings will be 

held); 8 C.F.R. § 1003.14(a) (“Jurisdiction vests” in immigration court when notice to 

appear filed). However, we have recently held that a failure to comply with the time 
No. 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 with the statute dictating the content of a 

Notice to Appear is not one of those fundamental 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 discretion to deny Villa relief for which he is 

statutorily ineligible, Villa’s petition is DENIED.