In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2882

JOSE M. ZAMBRANO-REYES, also

known as JOSE MANUEL ZAMBRANOREYES,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney 

General of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A090-933-006

ARGUED FEBRUARY 15, 2013 — DECIDED AUGUST 2, 2013

Before FLAUM, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. This petition for judicial review

presents questions affecting alienswho were lawful permanent

residents and were removed because of criminal conduct, and

especially those who then reentered the United States unlawfully. Petitioner Jose Zambrano-Reyes was a lawful permanent
2 No. 12-2822

resident of the United States, but he was ordered removed in

2000 on account of two felony convictions. Shortly after his

removal, he reentered the United States unlawfully. In 2011, he

was arrested by immigration officers and his removal order

from 2000 was reinstated. He then asked the Board of Immigration Appeals to reopen his original removal proceedings. He

argued that his initial removal was in error because he was

prevented from seeking discretionary relief from removal in

2000, while intervening Supreme Court decisions show that

discretionary relief should have been available to him back in

2000.

The Board denied his motion to reopen, finding that it was

untimely and that the 90-day statutory deadline should not be

equitably tolled to permit Zambrano-Reyes to reopen his

removal eleven years later. The Board also found that the

discretionary relief he sought was not available to him, despite

the changes in the law, because he had reentered the country

unlawfully. Zambrano-Reyes seeks review of the denial of his

motion to reopen. We have jurisdiction to review his petition

under 8 U.S.C. § 1252(a)(2)(D), but we agree with the Board

that Zambrano-Reyes’s unlawful reentry means he is not

eligible for the relief he seeks. See 8 U.S.C. § 1231(a)(5) (barring

reopening of removal proceedings); 8 C.F.R. § 1003.44(k)(2)

(barring discretionary relief from removal).

I. Factual, Legal, and Procedural Background

Zambrano-Reyes is a citizen of Mexico who entered the

United States in 1979 and was granted lawful permanent

resident status in 1989. In 1993, he pled guilty to two felony

counts of aggravated sexual abuse of a minor. He was sen-
No. 12-2822 3

tenced to six months in prison and four years of probation.

These convictions set the stage for the legal troubles that

followed.

A. Relevant Legal Background

To understand the legal issues Zambrano-Reyes presents,

we must begin with a brief history of the discretionary relief

from removal that he seeks. Under section 212(c) of the

Immigration and Nationality Act of 1952 (INA), if a lawful

permanent resident left the United States and would have been

excluded from reentering the country on one of the grounds

listed in the statute, he or she could seek discretionary relief

from that exclusion from the Attorney General. Pub. L. No. 82-

414, § 212(c), 66 Stat. 163, 187. The Board of Immigration

Appeals made that discretionary relief available to lawful

permanent residents who were subject to being deported, in

addition to those subject to exclusion. See Matter of S—, 6 I. &

N. Dec. 392, 396 (BIA 1954); Matter of Silva, 16 I. & N. Dec. 26,

27 (BIA 1976).1

In 1996 Congress twice amended the relevant portions of

the INA. The first amendment barreddiscretionary relief under

section 212(c) for those who had committed certain criminal

offenses. See Antiterrorism and Effective Death Penalty Act of

Under immigration law, an alien is “excludable” or “inadmissible” if the 1

government mayprevent him or her from entering orreentering the United

States. Both terms are also used to describe an alien who is removable

because he or she is present in the United States without having been

lawfully admitted. See 8 U.S.C. § 1182(a) (setting forth the grounds of

inadmissibility). “Deportation” or “removal” refers to the removal of an

alien who falls into any of the classes of “deportable aliens” under 8 U.S.C.

§ 1227(a).
4 No. 12-2822

1996 (AEDPA), Pub. L. No. 104-132, § 440(d), 110 Stat. 1214,

1277. Congress then eliminated section 212(c)relief altogether,

replacing it with another form of discretionary

relief—“cancellation of removal”—which is not available to

permanent residents who have been convicted of an “aggravated felony.” Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,

§ 304(a), 110 Stat. 3009-546, -594; cancellation of removal

codified at 8 U.S.C. § 1229b(a).

AEDPA and IIRIRA did not specify whether or how their

new bars to discretionary relief under section 212(c) would

apply to someone in Zambrano-Reyes’s position—permanent

residents who were convicted of disqualifying felonies before

the new laws took effect. The Attorney General issued an

opinion in 1997 stating that discretionary relief under former

section 212(c) was not available in any removal proceedings

occurring after AEDPA became effective. Matter of Soriano,

21 Op. OLC 1 (Op. Att’y Gen. 1997). Under the Attorney

General’s view in Soriano, even if a permanent resident had

pled guilty to a disqualifying crime before AEDPA was passed,

as Zambrano-Reyes had done, he was ineligible for section

212(c) discretionary relief. Id. at 6.

In 2000, though, five weeks before the Board affirmed the

order to remove Zambrano-Reyes, we issued an opinion that

departed from the Attorney General’s view. We held that a

permanent resident who had pled guilty to crimes in reliance

upon the old section 212(c) discretionary relief could not be

barred from that relief. Jideonwo v. I.N.S., 224 F.3d 692, 700 (7th

Cir. 2000). The next year, after Zambrano-Reyes had been

removed and then returned illegally, the Supreme Court
No. 12-2822 5

similarly held that section 212(c) relief was available to

permanent residents who pled guilty to crimes before AEDPA

and IIRIRA that would have disqualified them from such relief

under those new laws. I.N.S. v. St. Cyr, 533 U.S. 289, 326 (2001).

Thus, St. Cyr meant that permanent residents who were

removable on account of certain crimes could still seek discretionary relief if they pled guilty to the relevant crimes before

AEDPA and IIRIRA became effective.

In evaluating such applications for relief in the wake of St.

Cyr, the Board faced a further question. Though the text of the

original section 212(c) applied only as relief from exclusion but

not from deportation, it had been applied to both. Yet exclusion and deportation have separate statutory lists of grounds

for those respective consequences. Compare 8 U.S.C. § 1182(a)

with § 1227(a). The Board needed a way to determine if a

permanent resident subject to deportation on grounds listed in

that statute section could be eligible for relief under the

exclusion statute. 

As we explained in the companion criminal case, United

States v. Zambrano-Reyes, No. 12-1524, — F.3d —, 2013 WL

3871002 (7th Cir. July 29, 2013), in 2005 the Board decided that

section 212(c) discretionary relief would be available to a

permanent resident subject to removal only if the statutory

ground of removal with which the permanent resident was

charged comprised a range of offenses that was “substantially

equivalent” to the range of offenses covered by a statutory

ground of exclusion. See In re Blake, 23 I. & N. Dec. 722, 728

(BIA 2005); In re Brieva-Perez, 23 I. & N. Dec. 766, 772-73 (BIA

2005). We affirmed this approach, known as the “comparable
6 No. 12-2822

grounds” rule. See, e.g., Frederick v. Holder, 644 F.3d 357, 363

(7th Cir. 2011); Zamora-Mallari v. Mukasey, 514 F.3d 679, 692-93

(7th Cir. 2008). But in 2011, after the Board had reinstated

Zambrano-Reyes’s removal order and after he had pled guilty

to a new 2011 indictment for unlawful reentry under 8 U.S.C.

§ 1326(a), the Supreme Court rejected the “comparable

grounds” rule as arbitrary and capricious and effectively

overruled those decisions. Judulang v. Holder, 132 S. Ct. 476,

490 (2011).

In sum, only after St. Cyr was it settled that discretionary

relief from removal was available to a permanent resident like

Zambrano-Reyes who had pled guilty to certain criminal

offenses that made him removable prior to AEDPA and

IIRIRA, and only after Judulang was the path to seeking

discretionary relief clear for a permanent resident whose

criminal offenses rendered him removable based on a category

that did not have a “comparable ground” in the list of grounds

for exclusion.

B. Zambrano-Reyes’s Case

In November 1997, immigration authorities issued

Zambrano-Reyes a Notice to Appear for removal proceedings

and charged him as removable for having been convicted of an

aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). He hired

an attorney to represent him. At his removal hearing on June

23, 1998, the immigration judge determined that ZambranoReyes was removable because of his convictions for sexual

abuse of a minor. The judge also ruled that, in light of the

Attorney General’s Soriano opinion, Zambrano-Reyes was not

eligible for the discretionary relief from removal that would
No. 12-2822 7

have been available to him under section 212(c) prior to

enactment of AEDPA and IIRIRA. Zambrano-Reyes appealed

and the Board affirmed without opinion on September 29,

2000. Zambrano-Reyes did not seek judicial review, and he was

removed to Mexico on November 13, 2000. He returned to the

United States unlawfully sometime in January 2001. And as we

explain below, that unlawful reentry has decisive consequences

here. 

Zambrano-Reyes apparently avoided detection for years,

but he was arrested by immigration officers in June 2011. The

Department of Homeland Security reinstated his original

removal order that was affirmed by the Board in 2000. AR

1922. He did not contest his removability. On July 19, 2011, he

was also indicted for illegal reentry in violation of 8 U.S.C. §

1326. Zambrano-Reyes pled guilty to the illegal reentry charge.

AfterJudulang was decided, and before he was sentenced in

his criminal case, Zambrano-Reyes filed a motion to withdraw

his guilty plea and challenged the legality of the 2000 removal

order. He argued that he was wrongly deprived of the opportunity to seek discretionary relief under section 212(c) in his

removal proceedings in 1998 because St. Cyr later overruled

the Board and held that such discretionary relief was available

to someone in his position. He also argued that, since his

ground for removability did not have a counterpart in the

statutory grounds for exclusion, he was still barred from

seeking such relief until Judulang rejected the comparable

grounds rule in 2011. He argued that only after Judulang was

the path clear for him to seek discretionary relief. The district

court denied the motion. Zambrano-Reyes appealed, and we
8 No. 12-2822

affirmed. See United States v. Zambrano-Reyes, No. 12-1524,

— F.3d —, 2013 WL 3871002 (7th Cir. July 29, 2013).

On May 14, 2012, Zambrano-Reyes filed a motion with the

Board to reopen his removal proceedings. He argued that his

prior immigrationattorney had provided ineffective assistance

by failing to request explicitly a section 212(c) waiver during

his removal proceedings and by failing to advise him that such

relief might be available to him. Alternatively, he urged the

Board to reopen his removal proceedings sua sponte in light of

St. Cyr and Judulang. He also filed an emergency motion to stay

his removal. The Board denied the motion, though, and

Zambrano-Reyes was removed to Mexico on May 22, 2012. 

On July 16, 2012 the Board denied the motion to reopen.

The Board found that Zambrano-Reyes’smotion to reopen was

untimely. It was filed more than eleven years after his original

removal order was entered, long past the statutory 90-day

deadline for moving to reopen removal proceedings. See

8 U.S.C. § 1229a(c)(7)(C)(i). The Board declined to apply

equitable tolling to that deadline, which it may do when the

petitioner has exercised due diligence, meaning that a reasonable person in that position would not have been aware of the

possibility that he or she had suffered an injury and could not

reasonably have been expected to file earlier. App. 4, citing

Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006) (equitable

tolling “requires a showing of due diligence”); Pervaiz v.

Gonzales, 405 F.3d 488, 490 (7th Cir. 2005) (the test for equitable

tolling “is whether the claimant could reasonably have been

expected to have filed earlier”). The Board found that

Zambrano-Reyes did not exercise due diligence and could
No. 12-2822 9

reasonably have been expected to file sooner because he

indicated that he thought at the time of his representation that

his attorney was not satisfactory, and thus he should have

known to move to reopen at that time. In the alternative, the

Board found that Zambrano-Reyes’s attorney was not ineffective, stating that it could not “conclude that the respondent’s

former attorney acted ineffectively by not advising the respondent to pursue this form of relief.” Id. The Board also declined

to reopen his removal order sua sponte, finding that even with

the changes from St. Cyr andJudulang, Zambrano-Reyes would

not be eligible for reopening or discretionary relief because of

his unlawful reentry into the United States. See 8 U.S.C. §

1231(a)(5); 8 C.F.R. § 1003.44(k)(2). Zambrano-Reyes now

petitions for review of the Board’s denial of his motion to

reopen his removal proceedings.

II. Analysis

A. Jurisdiction

We have jurisdiction to review the Board’s denial of

Zambrano-Reyes’s motion to reopen, though that conclusion

takes a bit of an explanation. To summarize, we have jurisdiction to review a denial of a motion to reopen so long as we

would have jurisdiction to review the underlying order. We

would have jurisdiction over Zambrano-Reyes’s original

removal order because he claims that it involved constitutional

and legal error. Our jurisdiction does not mean, however, that

relief on the merits could be available.

Appellate courts ordinarily have jurisdiction to review the

Board’s denial of a motion to reopen. See Kucana v. Holder,

558 U.S. 233, 248-54 (2010) (courts have jurisdiction over
10 No. 12-2822

motion to reopen where Board’s decision on the motion is

committed to agency discretion by regulation rather than by

statute); see also Tapia-Lemos v. Holder, 696 F.3d 687, 689 (7th

Cir. 2012) (“Denial of a bona fide motion to reopen is reviewable

under 8 U.S.C. § 1252(a).”). But Kucana left open the question

“whether review of a reopening denial would be precluded if

the court would lack jurisdiction over the alien’s underlying

claim for relief.” Kucana, 558 U.S. at 250 n.17. In this circuit, the

default answer is that “we do not have jurisdiction over the

motions to reopen orreconsider if we lack jurisdiction over the

underlying order.” See Cruz-Mayaho v. Holder, 698 F.3d 574, 577

(7th Cir. 2012). Thus, we have jurisdiction to review the Board’s

denial of Zambrano-Reyes’s motion to reopen his removal

order only if we would have jurisdiction to review the Board’s

2000 removal order itself.2

Our jurisdiction extends to Zambrano-Reyes’s original

removal order to the extent that he argues on judicial review

that it involved constitutional or legal error. Section

1252(a)(2)(D) of Title 8 of the U.S. Code provides that “Nothing

in subparagraph (B) or (C), or in any other provision of this

chapter (other than this section) which limits or eliminates

There is an exception to our default rule. Judicial review of procedural 2

motions “is foreclosed only if the agency’s rationale for denying the

procedural request also establishes the petitioner's inability to prevail on

the merits of his underlying claim.” See Cruz-Mayaho, 698 F.3d at 576–77

(internal quotations omitted), citing Calma v. Holder, 663 F.3d 868, 876 (7th

Cir. 2011). But we held in Moral-Salazar v. Holder, 708 F.3d 957, 961–62 (7th

Cir. 2013), that the Calma exception did not apply where the underlying

order was a removal order that would be barred from review because it was

entered on account of an aggravated felony. Zambrano-Reyes’s was such a

removal order, so the Calma exception does not give us jurisdiction here.
No. 12-2822 11

judicial review, shall be construed as precluding review of

constitutional claims or questions of law raised upon a petition

for review ... .” 8 U.S.C. § 1252(a)(2)(D). This exception applies

to nearly all limits on jurisdiction in the INA, including two

that would otherwise apply to Zambrano-Reyes. First, it

expressly applies to section 1252(a)(2)(C), which would

otherwise bar our review of Zambrano-Reyes’s removal order

because it was on account of an aggravated felony. See

Alvarado-Fonseca v. Holder, 631 F.3d 385, 389 (7th Cir. 2011)

(section 1252(a)(2)(D) allowed jurisdiction to review order

removing alien convicted of committing an aggravated felony

despite section 1252(a)(2)(C)). 

Second, section1252(a)(2)(D) also applies to our jurisdiction

despite 8 U.S.C. § 1231(a)(5), which provides that if an alien

who was removed reenters the United States illegally, as

Zambrano-Reyes did, the order of removal “is not subject to

being reopened or reviewed.” 8 U.S.C. § 1231(a)(5). Section

1252(a)(2)(D) applies to all “other provision[s] of this chapter

(other than this section),” which includes section 1231(a)(5).

8 U.S.C. § 1252(a)(2)(D).3

Other circuits have found that section 1252(a)(2)(D) can override section

3

1231(a)(5) to the extent the latter might otherwise bar appellate jurisdiction.

See, e.g., Villegas de la Paz v. Holder, 640 F.3d 650, 656 (6th Cir. 2010)

(collecting cases and stating on direct review of reinstatement proceedings

that “the circuit courts that have considered the interplay between §

1252(a)(2)(D) and § 1231(a)(5) have held that § 1252(a)(2)(D) re-vests the

circuit courts with jurisdiction over constitutional claims or questions of

law raised in the context of reinstatement proceedings;”) (quotations

omitted). Although these cases addressed jurisdiction to review an

underlying removal order as a challenge to the order’s reinstatement,

(continued...)
12 No. 12-2822

Zambrano-Reyes has raised constitutional and legal claims

in his petition for review of the denial of his motion to reopen.

He argues that he was denied due process in his original

removal proceeding because he received ineffective assistance

of counsel and that the Board erred in determining that his

counsel was not ineffective. Although aliens in immigration

proceedings do not have a Sixth Amendment right to the

effective assistance of counsel, see Pervaiz v. Gonzales, 405 F.3d

488, 489–90 (7th Cir. 2005), they do “have a due-process right

to a fair hearing.” Solis-Chavez v. Holder, 662 F.3d 462, 466 (7th

Cir. 2011), citing Kay v. Ashcroft, 387 F.3d 664, 676 (7th Cir.

2004) (in removal proceedings, “counsel’s ineffectiveness may

rise to the level of a due process violation if the alleged errors

likely affected the outcome of the proceeding”). In holding as

much, we have relied on the Board’s “body of caselaw holding

that an alien’s due-process rights can be violated by his

attorney’s ineffective assistance in removal proceedings.”SolisChavez, 662 F.3d at 466, citing Matter of Lozada, 19 I. & N. Dec.

637, 638 (BIA 1988) (“Ineffective assistance of counsel in a

deportation proceeding is a denial of due process only if the

proceeding was so fundamentally unfair that the alien was

 (...continued) 3

section 1252(a)(2)(D)’s broad language should also apply to a motion to

reopen a reinstated order. Some of the circuit cases cited by Villegas de la Paz

endorsed (but did not actually apply) a “gross miscarriage of justice”

exception to section 1231(a)(5). See, e.g., Garcia de Rincon v. Dep't of

Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008). We need not and do not

endorse that standard for the purposes of this opinion. As we explain

below, the potential availability of appellate jurisdiction does not meanthat

the Board or other immigration authorities could actually grant the relief

that section 1231(a)(5) bars on the merits. 
No. 12-2822 13

prevented from reasonably presenting his case.”), overruling

vacated by Matter of Compean, 25 I. & N. Dec. 1 (BIA 2009). 

This is true even though an alien may not have a protected

liberty interest in discretionary relief. “An alien resisting

removal, which would deprive him of his liberty to remain in

the United States, is entitled to due process, which comprehends the right to present a defense.” Jezierski v. Mukasey,

543 F.3d 886, 889–90 (7th Cir. 2008) (internal citations omitted)

(also acknowledging that there is no “entitlement to reopen on

the basis of ineffective assistance of counsel,” but finding that

the complexity of an immigration case “in a particular removal

proceeding might be so great that forcing the alien to proceed

without the assistance of a competent lawyer would deny him

due process of law”). But we have declined to find jurisdiction

under section 1252(a)(2)(D) over petitions raising ineffective

assistance of counsel claims where we found that the Board’s

denial of reopening rested on a finding that any ineffectiveness

in counsel did not actually prejudice the petitioner. We have

treated the question of prejudice as factual rather than legal or

constitutional. Jezierski, 543 F.3d at 891 (finding no jurisdiction

because Board’s prejudice determinationwas factual, not legal,

and petitioner did not allege infringement of constitutional

right).

In this case, the Board determined that Zambrano-Reyes’s

counsel was not ineffective, which is a legal determination. It

required analyzing the relevant controlling law on the retroactivity of AEDPA and IIRIRA at the time of Zambrano-Reyes’s
14 No. 12-2822

removal proceedings, a task requiring legal analysis. And to 4

the extent that the Board also determined that any ineffective

assistance did not prejudice Zambrano-Reyes, that finding

would need to be reconsidered if the Board’s initial legal

determination was erroneous and thus does not defeat our

jurisdiction. See Sanchez v. Keisler, 505 F.3d 641, 647-50 (7th Cir.

2007) (where discretionary determinations rested on Board’s

erroneous initial determination that counsel was not ineffective, no jurisdictional bar despite Board’s alternate discretionary holdings).

We conclude that our jurisdiction extends to ZambranoReyes’s removal order because he raises a constitutional claim

or legal question with regard to his underlying order of

In denying Zambrano-Reyes’s motion to reopen, the Board overlooked a

4

significant legal development in our circuit shortly before its original

affirmance of his removal order in 2000. The Board wrote in 2012: “At the

time of the respondent’s hearings before the Immigration Judge and during

the pendency of his appeal to this Board, the controlling law indicated that

he was not eligible for a section 212(c) waiver.” App. 4, citing Matter of

Soriano, 21 Op. OLC 1 (Op. Att’y Gen. 1997); Turkham v. Perryman, 188 F.3d

814 (7th Cir. 1999). As noted above, over a month before the Board’s order

affirming Zambrano-Reyes’s order of removal on September 29, 2000, we

held in Jideonwo that “where specific facts demonstrate that an alien pled

guilty to an aggravated felony before the enactment of AEDPA and relied,

at least in part, on the availability of § 212(c) relief in making his decision

to so plead, AEDPA’s § 440(d) cannot be applied retroactively to bar that

alien from receiving a discretionary waiver under INA § 212(c).” 224 F.3d

at 700. As we noted in the companion case, United States v. Zambrano-Reyes,

— F.3d —, No. 12-1524, 2013 WL 3871002, slip op. at 8–9 (7th Cir. July 29,

2013), this would have been a strong argument for a motion to reopen at the

time. But Zambrano-Reyes’s decision to reenter the United States illegally

had the effect of blocking any relief he might have sought on this basis.
No. 12-2822 15

removal. Under Kucana and our default rule, we thus have

jurisdiction to review the Board’s denial of his motion to

reopen that order of removal. Because he raises constitutional 5

and legal claims, our jurisdiction also extends to the Board’s

refusal to reopen Zambrano-Reyes’ removal proceedings sua

sponte. See Anaya-Aguilar v. Holder, 697 F.3d 1189 (7th Cir. 2012)

(bar on review of motions to reopen sua sponte does not apply

where petitioner raises constitutional orlegal claims), denying

reh’g of 683 F.3d 369 (7th Cir. 2012). The potential obstacles to

our jurisdiction here do notovercome the “strong presumption

in favor of judicial review of administrative action.” St. Cyr,

533 U.S. at 298 & n.9 (collecting cases).

B. Merits of the Denial of the Motion to Reopen

Although we have jurisdiction, we must deny ZambranoReyes’s petition on the merits. The Board gave three reasons

for denying Zambrano-Reyes’s motion to reopen: first, that he

was not entitled to equitable tolling of the deadline of his

motion to reopen; second, that he did not show that his former

attorney was so ineffective as to impinge on the fundamental

fairness of his proceedings; and third, that his case did not

involve “exceptional circumstances” suchthat the Board would

In Moral-Salazar v. Holder, 708 F.3d 957, 961-62 (7th Cir. 2013), we declined 5

to extend “Kucana to removal orders where an alien has been convicted of

a crime covered by the jurisdictional bar in subsection (C),” and we

interpreted the phrase “final order of removal” in subsection (C) to

“encompass not only the actual removal order, but all decisions closely

related to the proceeding”). But Moral-Salazar did not reject the application

of section1252(a)(2)(D)’s exception to subsection (C)’s jurisdictional bar. We

noted that “[n]otwithstanding subsection (C)’s jurisdictional bar, we would

have jurisdiction to review any legal and constitutional issues that Moral

raises,” but found that he had raised none. Id. at 962.
16 No. 12-2822

reopen his proceedings sua sponte. The Board’s reasoning on

the third point is sufficient to deny Zambrano-Reyes’s petition

on all grounds. Because of his unlawful reentry after his

removal, Zambrano-Reyes is simply barred as a matter of law

from the discretionary relief and the reopening of his removal

proceedings that he seeks.

The Board found that, even though St. Cyr and Judulang

cleared two obstacles to Zambrano-Reyes seeking section

212(c)discretionaryrelief, one obstacle remained that could not

be overcome: his illegal reentry. A regulation establishes

procedures for former permanent residents suchas ZambranoReyes, who were subject to removal on account of guilty pleas

to crimes prior to the enactment of AEDPA and IIRIRA, to seek

section 212(c) discretionary relief in light of St. Cyr. 8 C.F.R.

§ 1003.44. Under this regulation, aliens who have been “issued

a final order of deportation or removal who then illegally

returned to the United States” are not eligible to apply for such

relief. 8 C.F.R. § 1003.44(k)(2). In denying Zambrano-Reyes’s

motion to reopen, the Board cited this regulation and concluded that even when the law changed under St. Cyr,

Zambrano-Reyes “was not entitled to reopening of his proceedings because he had returned to this country illegally.”

That provision of the regulation implements 8 U.S.C. §

1231(a)(5), which provides that a prior order of removal “is not

subject to being reopened or reviewed” if the alien has reentered the United States illegally. See 69 Fed. Reg. 57826-01,

57827 (Sept. 28, 2004) (final rule); 67 Fed. Reg. 52627, 52629

(Aug. 13, 2002) (proposed rule). 

We agree with the Board that 8 C.F.R. § 1003.44(k)(2) bars

Zambrano-Reyes from seeking section 212(c) discretionary
No. 12-2822 17

relief because of his illegal reentry, despite the later developments in St. Cyr and Judulang. In publishing the rule, the

Department of Justice commented that “the decision to

preclude aliens under a deportation or removal order from

obtaining section 212(c)relief is grounded in Congress’s intent

to limit its availability to those not under deportation orders.”

69 Fed. Reg. at 57828. The Sixth Circuit has held that 8 C.F.R.

§ 1003.44(k)(2) barred a permanent resident from seeking

section 212(c) relief where he was subject to a final order of

removal and his reentry into the United States was only for the

purpose of standing trial. See Mansour v. Gonzales, 470 F.3d

1194, 1200 (6th Cir. 2006). Here, there is no question that

Zambrano-Reyes entered the country unlawfully after having

been removed pursuant to a final order of removal. Under 8

C.F.R. § 1003.44(k)(2), even if the Board were to reopen

Zambrano-Reyes’s removal proceedings, the discretionary

relief he seeks would still not be available to him.

The Board correctly stated that Zambrano-Reyes is “not

entitled to reopening of his proceedings because he had

returned to this country illegally.” The Board cited section

1003.44(k)(2) for this proposition. To be precise, the regulation

itself does not expressly state that illegal reentry bars reopening,

but it clearly has that consequence. The statute that the

regulation implements specifically bars review or reopening

after illegal reentry: if an “alien 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 or reviewed.” 8 U.S.C. § 1231(a)(5) (emphasis

added).
18 No. 12-2822

Thus, although section 1231(a)(5) does not bar jurisdiction

over Zambrano-Reyes’spetition for judicial review, it shows on

the merits that his removal proceeding cannot be reopened.

Any remand would be futile. The Board could not reopen his

proceeding, and he is ineligible for the relief he seeks. “We

need not remand an immigration case where doing so would

prove futile.” Marin-Garcia v. Holder, 647 F.3d 666, 672 (7th Cir.

2011).

III. Conclusion

Regardless of St. Cyr and Judulang, Zambrano-Reyes is

barred from section 212(c) discretionary relief and his removal

proceedings may not be reopened because of his illegal

reentry. We need not reach his other arguments against the

Board’s decision. The petition is denied.