FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFONSO PADILLA CUENCA,

Petitioner,

v.

WILLIAM P. BARR, Attorney 

General,

Respondent.

No. 16-72378

Agency No.

A088-890-971

ORDER AND 

AMENDED OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted June 11, 2019

San Francisco, California

Filed November 13, 2019

Amended April 14, 2020

Before: Mary M. Schroeder and Milan D. Smith, Jr., 

Circuit Judges, and Douglas L. Rayes,

* District Judge.

Order;

Opinion by Judge Rayes

* The Honorable Douglas L. Rayes, United States District Judge for 

the District of Arizona, sitting by designation.
2 PADILLA CUENCA V. BARR

SUMMARY**

Immigration

The panel filed: 1) an order amending its November 13, 

2019, opinion, denying panel rehearing and denying, on 

behalf of the court, rehearing en banc; and 2) an amended 

opinion denying Fernando Padilla Cuenca’s petition for 

review of a decision of the Board of Immigration Appeals. 

In the amended opinion, the panel held that 8 U.S.C. 

§ 1231(a)(5), which empowers an immigration officer to 

reinstate a prior removal order, permanently bars reopening 

of the prior removal order under 8 U.S.C. § 1229a(c)(7).

After being physically removed pursuant to an 

immigration judge’s order of removal in 2008, Padilla 

unlawfully reentered the United States. Thereafter, the 

Department of Homeland Security (“DHS”) apprehended 

Padilla and proceeded to reinstate his prior removal order. 

DHS did not execute the reinstated order, however, because 

an immigration officer determined that Padilla had a 

reasonable fear of persecution and torture if removed to 

Mexico and referred his case to Immigration Court for 

withholding of removal proceedings.

Despite his ongoing withholding of removal proceeding, 

Padilla sought to reopen his 2008 removal proceeding in 

order to apply for asylum, which offers broader protection 

than withholding. He filed a motion to reopen pursuant to 

8 U.S.C. § 1229a(c)(7), which allows an alien to move to 

reopen his removal proceeding within 90 days of a final 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
PADILLA CUENCA V. BARR 3

removal order based on new, material facts that could not 

have been discovered or presented at the original hearing. 

As relevant here, Padilla contended that his underlying 

removal proceedings violated due process because he was 

not mentally competent to represent himself. However, the 

BIA concluded that 8 U.S.C. § 1231(a)(5), which provides 

for reinstatement of a prior order and states that the prior 

order “is not subject to be reopened or reviewed,” barred 

reopening of Padilla’s 2008 order because it had been 

reinstated.

The panel held that the language of § 1231(a)(5) 

unambiguously and permanently bars reopening a reinstated 

prior removal order, noting that the Fifth and Seventh 

Circuits likewise interpreted the statute as a permanent bar. 

The panel also explained that this plain reading of the statute 

comports with the statute’s clear Congressional purpose: 

expanding the types of orders that can be reinstated and 

limiting the relief available to aliens whose orders have been 

reinstated.

Agreeing with the Fifth Circuit that § 1231(a)(5) 

provides that an alien forfeits the right to file a motion to 

reopen by reentering the country illegally, the panel rejected 

Padilla’s contention that a strict reading of § 1231(a)(5) 

would create a conflict with § 1229a(c)(7) by eviscerating an 

alien’s right to file a motion to reopen.

Padilla also contended that § 1231(a)(5) imposed a 

temporal limit on the bar to reopening such that the bar 

applies only during the time an immigration officer spends 

complying with the regulatory prerequisites to 

reinstatement, but once the prior removal order has been 

reinstated the bar to reopening is lifted. Padilla relied on this 

court’s decisions in Morales-Izquierdo v. Gonzales, 

486 F.3d 484 (9th Cir. 2007) (en banc), which stated that 
4 PADILLA CUENCA V. BARR

reinstatement creates no new obstacles to attacking the 

validity of a prior removal order, and Miller v. Sessions, 

889 F.3d 998 (9th Cir. 2018), which held that an individual 

placed in reinstatement proceedings retains the right 

conferred by § 1229a(b)(5)(C)(ii), to seek rescission of an in 

absentia order, based on lack of notice, by filing a motion to 

reopen at any time.

However, the panel concluded that the specific factual 

and procedural contexts of these decisions were materially 

distinguishable from Padilla’s case. In addition to noting 

that Morales-Izquierdo came to this court as a petition for 

review of a reinstatement order, not from a denial of a 

motion to reopen, the panel explained that, unlike MoralesIzquierdo and Miller, Padilla’s underlying removal order 

was not entered in absentia, and Padilla received far more 

process than did the petitioners in those cases. The panel 

also explained that, unlike Miller, Padilla’s motion was not 

filed pursuant to § 1229a(b)(5)(C)(ii) to reopen an in 

absentia order, and Padilla had pointed to no statutory 

provision separate from § 1229a(c)(7) that confers the right 

to reopen his prior proceeding despite § 1231(a)(5)’s plain 

command.

Padilla also suggested that incompetence raises 

questions similar to absentia, invoking the principle of 

constitutional avoidance to support reopening. The panel 

rejected this contention as a misapplication of the canon of 

constitutional avoidance because § 1231(a)(5)’s command is 

clear and its results intended.

Further, the panel noted that even this harsher regime 

offers avenues of relief: withholding of removal and 

protection under the Convention Against Torture are 

available in reinstatement proceedings, and some collateral 

attack on an underlying order during reinstatement 
PADILLA CUENCA V. BARR 5

proceedings may be available if the petitioner can show that 

he suffered a gross miscarriage of justice in the initial 

proceeding.

COUNSEL

Judah Lakin (argued) and Amalia Wille, Lakin & Wille LLP,

Oakland, California; Frances Kreimer and Katherin 

Mahoney, Dolores Street Community Services, San 

Francisco, California; for Petitioner.

Jonathan K. Ross (argued) and Enitan O. Otunla, Trial 

Attorneys; Bernard A. Joseph, Senior Litigation Counsel; 

Derek C. Julius, Assistant Director; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.

ORDER

The opinion filed on November 13, 2019, and reported 

at 941 F.3d 1213 is hereby amended as follows:

At 941 F.3d at 1218, <As the Fifth Circuit explained, 

§ 1229a(c)(7) “provides that every alien ordered removed 

from the United States has a right to file one motion to 

reopen his or her removal proceedings,” and § 1231(a)(5) 

“provides that an alien forfeits that right by reentering the 

country illegally. That is the clear import of the statute’s 

unambiguous text.” Rodriguez-Saragosa, 904 F.3d at 354 

(quoting Dada, 554 U.S. at 4–5, 128 S.Ct. 2307) (emphasis 

in original).> is replaced with: <Section 1229a(c)(7) 

“provides that every alien ordered removed from the United 
6 PADILLA CUENCA V. BARR

States has a right to file one motion to reopen his or her 

removal proceedings.” Dada, 554 U.S. at 4–5. But, as the 

Fifth Circuit explained, § 1231(a)(5) “provides that an alien 

forfeits that right by reentering the country illegally. That is 

the clear import of the statute’s unambiguous text.” 

Rodriguez-Saragosa, 904 F.3d at 354 (emphasis in 

original).>

A clean copy of the amended opinion is attached to this 

order.

With the foregoing amendment, the pending petition for 

panel rehearing is DENIED. (Dkt. No. 63.) The full court 

has been advised of the petition for rehearing en banc, and 

no judge of the court has requested a vote on it. Fed. R. App. 

P. 35. Therefore, the petition for rehearing en banc is also 

DENIED. (Dkt. No. 63.) No further petitions for panel 

rehearing or rehearing en banc will be entertained.

OPINION

RAYES, District Judge:

Generally, when an alien is ordered removed from the 

United States, he may move to reopen his removal 

proceeding within 90 days of entry of the final removal order 

based on new, material facts that could not have been 

discovered or presented at the original removal hearing. 

8 U.S.C. § 1229a(c)(7). “The motion to reopen is an 

‘important safeguard’ intended ‘to ensure a proper and 

lawful disposition’ of immigration proceedings.” Kucana v. 

Holder, 558 U.S. 233, 242 (2010) (quoting Dada v. 

Mukasey, 554 U.S. 1, 18 (2008)). If, however, an alien who 

has been removed pursuant to a removal order takes matters 
PADILLA CUENCA V. BARR 7

into his own hands and unlawfully reenters the United States, 

another provision of the Immigration and Nationality Act 

(“INA”) empowers an immigration officer to reinstate the 

prior removal order, at which point it “is not subject to being 

reopened[.]” 8 U.S.C. § 1231(a)(5). The question presented 

in this case is whether § 1231(a)(5) permanently bars 

reopening under § 1229a(c)(7), or whether the bar applies 

only during the reinstatement process. We conclude that an 

alien whose removal order is reinstated pursuant to 

§ 1231(a)(5) may not reopen the prior removal proceeding 

under § 1229a(c)(7). The bar is a consequence of having 

reentered unlawfully.

I. Background

Petitioner Alfonso Padilla Cuenca (“Padilla”) is a native 

Mexican citizen who arrived in the United States on 

December 1, 1997, without being admitted or paroled. The 

Department of Homeland Security (“DHS”) initiated 

removal proceedings against Padilla on August 25, 2008. 

Padilla appeared without counsel in the Immigration Court 

in Eloy, Arizona on September 15, 2008. There, an 

Immigration Judge (“IJ”) advised Padilla of his right to 

counsel, but Padilla waived that right, admitted the 

allegations against him, conceded removability, and waived 

his right to apply for relief. By order of the IJ, Padilla was 

physically removed to Mexico on November 28, 2008, but 

he unlawfully reentered the United States the following 

month.

DHS apprehended Padilla in 2015 and proceeded to 

reinstate his prior removal order, a multistep process that 

first requires an immigration officer to obtain the prior 

removal order related to the alien, confirm that the alien 

under consideration and the alien previously removed are 

one and the same, and confirm that the alien unlawfully 
8 PADILLA CUENCA V. BARR

reentered the United States. If the immigration officer 

determines that an alien qualifies for reinstatement, the 

officer then must give the alien written notice of his 

determination and provide the alien with an opportunity to 

make a statement contesting it. If these requirements are 

met, the alien’s prior removal order is reinstated, and he may 

again be removed. 8 C.F.R. § 241.8(a)–(c).

Here, DHS served Padilla with a Form I-871 Notice of 

Intent/Decision to Reinstate Prior Order (“Notice”) on May 

13, 2015. The Notice charged that Padilla is removable as 

an alien who unlawfully reentered the United States after 

previously being removed. Padilla signed and fingerprinted 

the Notice and indicated that he did not wish to make a 

statement contesting DHS’s determination. Consequently, 

DHS reinstated Padilla’s 2008 removal order.

DHS has not executed the reinstated removal order, 

however, because it determined that Padilla established a 

reasonable fear that he will be persecuted and tortured due 

to his mental illness if removed to Mexico. Padilla has a 

history of mental health problems, and formally was 

diagnosed with Schizoaffective Disorder, Depressive Type 

in October 2015. Under agency regulations, if an alien 

asserts a fear of returning to the country designated in his 

reinstated removal order, he is referred to an asylum officer 

who must then determine whether the alien has a reasonable 

fear of persecution or torture. 8 C.F.R. § 241.8(e). If the 

officer finds the alien’s fear to be reasonable, the case is 

referred to an IJ “for full consideration of the request for 

withholding of removal only.” 8 C.F.R. § 208.31(e). DHS 

accordingly referred Padilla to the Immigration Court in San 

Francisco, California for withholding of removal 

proceedings, where an IJ determined that Padilla is mentally 

incompetent to represent himself and ordered appointment 
PADILLA CUENCA V. BARR 9

of counsel. This withholding of removal proceeding remains 

pending, and Padilla cannot be removed to Mexico until it 

concludes.

Aided by counsel, Padilla filed a motion to reopen his 

2008 removal proceeding pursuant to § 1229a(c)(7) on 

November 2, 2015. Padilla argued that the 90-day deadline 

for filing a motion to reopen should be equitably tolled, the 

IJ should reopen his 2008 removal proceeding sua sponte,

1

reopening his 2008 removal proceeding is an appropriate 

safeguard to protect his due process rights, and he is prima 

facie eligible for asylum. At bottom, Padilla contends that 

his 2008 removal proceeding violated his due process rights 

because he was not competent to represent himself. 

Therefore, the IJ should not have accepted his admission of 

removability and instead should have appointed him 

counsel.2 Padilla seeks to reopen his 2008 removal 

proceeding in order to apply for asylum, which offers 

broader protection than withholding of removal.

The IJ denied Padilla’s motion, finding principally that 

§ 1231(a)(5) divested the IJ of jurisdiction to reopen the 

2008 removal proceeding because DHS reinstated Padilla’s 

removal order. Alternatively, the IJ addressed the merits of 

Padilla’s motion to reopen and, for reasons not relevant here, 

concluded that the motion was untimely and equitable tolling 

unavailable, Padilla was not prima facie eligible for asylum, 

1 Under 8 C.F.R. § 1003.2(a), the BIA may at any time reopen 

removal proceedings sua sponte.

2 Agency regulations preclude an IJ from accepting “an admission 

of removability from an unrepresented respondent who is incompetent.” 

8 C.F.R. § 1240.10(c).
10 PADILLA CUENCA V. BARR

and exceptional circumstances did not warrant reopening 

Padilla’s 2008 removal proceeding sua sponte.

Padilla appealed the IJ’s decision to the BIA. Along with 

re-arguing the merits of his motion to reopen, Padilla argued 

that the IJ erred in his jurisdictional analysis because 

§ 1231(a)(5) bars reopening only during the reinstatement 

process, and Padilla now is in a separate withholding of 

removal proceeding. The BIA agreed with the IJ, however, 

that § 1231(a)(5) barred reopening Padilla’s 2008 removal 

proceeding because DHS reinstated Padilla’s removal order. 

It therefore denied as moot Padilla’s requests for equitable 

tolling and sua sponte reopening and dismissed his appeal.

Padilla timely petitioned this Court for review of the 

BIA’s decision. He again argues that § 1231(a)(5) bars 

reopening only during the reinstatement process itself, and 

that the BIA should not have dismissed his appeal because 

he now is in a separate withholding of removal proceeding.

II. Jurisdiction and Standard of Review

We have jurisdiction to review the BIA’s dismissal order 

pursuant to 8 U.S.C. § 1252. Although we review the BIA’s 

denial of a motion to reopen for an abuse of discretion, 

purely legal questions receive de novo review. See CanoMerida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). Whether 

§ 1231(a)(5) permanently bars reopening under 

§ 1229a(c)(7) is a question of law that we review de novo.

III. Analysis

“[T]he starting point for interpreting a statute is the 

language of the statute itself.” Olympic Forest Coal. v. 

Coast Seafoods Co., 884 F.3d 901, 905 (9th Cir. 2018) 

(quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay 
PADILLA CUENCA V. BARR 11

Found., Inc., 484 U.S. 49, 56 (1987)). Section 1231(a)(5) 

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 be 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.

We read this language to unambiguously bar reopening a 

reinstated prior removal order. The Fifth and Seventh 

Circuits likewise have concluded that § 1231(a)(5) 

permanently bars reopening. See Rodriguez-Saragosa v. 

Sessions, 904 F.3d 349, 354 (5th Cir. 2018) (noting that the 

“unambiguous text” of § 1231(a)(5) “deprive[s] the BIA of 

authority to reopen” removal proceedings after the removal 

order has been reinstated); Cordova-Soto v. Holder, 

732 F.3d 789, 793 (7th Cir. 2013) (“[Section] 1231(a)(5) 

bars reopening of a removal order that has been reinstated 

after the alien’s illegal return to the United States.”). And in 

unpublished decisions this Court repeatedly has interpreted 

§ 1231(a)(5) as divesting the BIA of jurisdiction to reopen a 

removal proceeding after reinstatement of the underlying 

removal order. See, e.g., Monroy-Martinez v. Whitaker, 

749 F. App’x 578, 579 (9th Cir. 2019); Rodarte-Gonzalez v. 

Sessions, 736 F. App’x 708, 709 (9th Cir. 2018); CobosLuna v. Boente, 678 F. App’x 498, 499 (9th Cir. 2017); 

Escobedo-Fernandez v. Holder, 504 F. App’x 568, 568 (9th 

Cir. 2013).
12 PADILLA CUENCA V. BARR

This plain reading of § 1231(a)(5) as instituting a 

permanent jurisdictional bar also comports with the statute’s 

“clear Congressional purpose[.]” Rodriguez-Saragosa, 

904 F.3d at 354. Reinstatement once applied only to “a 

limited class of illegal reentrants,” and “the rest got the 

benefit of the ordinary deportation rules.” FernandezVargas v. Gonzales, 548 U.S. 30, 33–34 (2006). In 1996, 

however, Congress enacted the Illegal Immigration Reform 

and Immigrant Responsibility Act (“IIRIRA”), which 

replaced the old reinstatement provision “with one that toed 

a harder line[.]” Id. at 34. The revisions applied 

reinstatement to all illegal reentrants, “expanded the types of 

orders that can be reinstated and limited the relief available 

to aliens whose orders are reinstated.” Padilla v. Ashcroft, 

334 F.3d 921, 924 (9th Cir. 2003). Section 1231(a)(5) 

establishes a process to expeditiously remove an alien who 

already is subject to a removal order, thereby denying the 

alien “any benefits from his latest violation of U.S. law[.]” 

Morales-Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir. 

2007) (en banc). “The text of the statute does not allow room 

for avoiding this clear purpose.” Cordova-Soto, 732 F.3d at 

794.

Padilla, however, contends that a strict reading of 

§ 1231(a)(5) would create a conflict with § 1229a(c)(7) by 

eviscerating an alien’s right to file a motion to reopen. We 

disagree. Section 1229a(c)(7) “provides that every alien 

ordered removed from the United States has a right to file 

one motion to reopen his or her removal proceedings.” 

Dada, 554 U.S. at 4–5. But, as the Fifth Circuit explained, 

§ 1231(a)(5) “provides that an alien forfeits that right by 

reentering the country illegally. That is the clear import of 

the statute’s unambiguous text.” Rodriguez-Saragosa, 

904 F.3d at 354 (emphasis in original).
PADILLA CUENCA V. BARR 13

Padilla’s principal argument against a plain reading of 

§ 1231(a)(5) is that our decisions in Morales-Izquierdo and 

Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018), imposed a 

temporal limit on the bar to reopening. For example, Padilla 

highlights language from Morales-Izquierdo that 

reinstatement “creates no new obstacles to attacking the 

validity of the removal order,” and that § 1231(a)(5) 

precludes reopening or review of the prior removal order 

“during the course of the reinstatement process.” 486 F.3d 

at 498. He also points to language in Miller that “an 

individual placed in reinstatement proceedings under 

§ 1231(a)(5) cannot as a general rule challenge the validity 

of the prior removal order in the reinstatement proceeding 

itself.” 889 F.3d at 1002. According to Padilla, these 

decisions imply that § 1231(a)(5) bars reopening only during 

the time an immigration officer spends complying with 

§ 241.8’s prerequisites to reinstatement, but once the prior 

removal order has been reinstated the bar to reopening is 

lifted. Padilla argues that, at the very least, § 1231(a)(5) 

does not bar reopening a prior removal order once an alien 

is placed into withholding of removal proceedings.

This latter argument is foreclosed by our decision in 

Padilla-Ramirez v. Bible, in which we explained that 

“[w]ithholding-only proceedings do not . . . purport to 

override section 1231(a)(5)’s prohibition on reopening or 

reviewing a prior removal order.” 882 F.3d 826, 832 (9th 

Cir. 2017). And although Morales-Izquierdo and Miller

each contain language favorable to Padilla’s broader 

argument when read in isolation, the specific factual and 

procedural contexts of these decisions are materially 

distinguishable from Padilla’s case.

Morales-Izquierdo came to this Court as a petition for 

review of a reinstatement order itself, not from the denial of 
14 PADILLA CUENCA V. BARR

a motion to reopen. 486 F.3d at 489. The petitioner, 

Morales, had unlawfully entered the United States in 1994 

and subsequently was ordered removed in absentia. Id. at 

488. Morales claimed, however, that he never received 

notice of the hearing date. Id. He later unlawfully reentered 

the United States and his prior removal order was reinstated. 

Id. at 489. Morales raised numerous challenges to the 

reinstatement order and process. Of relevance here, he 

argued “that a removal order may not constitutionally be 

reinstated if the underlying removal proceeding itself 

violated due process,” and that his underlying removal 

proceeding violated due process because it was conducted in 

absentia without notice to him. Id. at 495–97. We rejected 

this argument and held that “[r]einstatement of a prior 

removal order—regardless of the process afforded in the 

underlying order—does not offend due process because 

reinstatement of a prior order does not change the alien’s 

rights or remedies.” Id. at 497. We explained:

The only effect of the reinstatement order is 

to cause Morales’ removal, thus denying him 

any benefits from his latest violation of U.S. 

law, committed when he reentered the United 

States without the Attorney General’s 

permission . . . . The reinstatement order 

imposes no civil or criminal penalties, 

creates no new obstacles to attacking 

the validity of the removal order, see, 

e.g., INA § 240(b)(5)(C)(ii), 8 U.S.C. 

§ 1229a(b)(5)(C)(ii) (allowing reopening of a 

removal order based on lack of notice), and 

does not diminish the petitioner’s access to 

whatever path for lawful entry into the United 

States might otherwise be available to him 

under the immigration laws.
PADILLA CUENCA V. BARR 15

Id. at 497–98 (emphasis in original).

In observing that reinstatement “creates no new 

obstacles to attacking the validity of the removal order,” we 

explicitly referred to § 1229a(b)(5)(C)(ii) as an avenue of 

relief potentially available to Morales. Id. at 498. That 

provision establishes a procedure, separate from the general 

motion-to-reopen 90-day limitation in § 1229a(c)(7), by 

which an alien may seek rescission of a removal order 

entered in absentia based on a claim of lack of notice.3 

Reinstatement does not take that away. Morales, however, 

had not availed himself of this procedure, and we concluded 

that § 1231(a)(5) barred him from raising such a challenge 

in the reinstatement proceeding itself. Id. at 496 n.13.

Miller came to this Court as a petition for review of the 

BIA’s denial of a motion to reopen. 889 F.3d at 1001. The 

petitioner, Miller, was ordered removed in absentia and later 

claimed that she had not received notice of the removal 

hearing. Id. at 1000. After her removal order was reinstated, 

Miller sought to reopen her removal proceeding pursuant to 

§ 1229a(b)(5)(C)(ii). Id. at 1001. The BIA determined, 

however, that it lacked jurisdiction to reopen Miller’s prior 

removal order because it had been reinstated. Id. We 

disagreed with the BIA and explained that MoralesIzquierdo “construed § 1231(a)(5) as preserving a noncitizen’s right to file a motion to reopen under 

§ 1229a(b)(5)(C)(ii).” Id. at 1002. Thus, we held that “an 

individual placed in reinstatement proceedings under 

§ 1231(a)(5) cannot as a general rule challenge the validity 

3 Notably, earlier in the decision we observed that § 1231(a)(5) 

“specifically precludes Morales from seeking to reopen the previous 

removal order based on defective service or any other grounds.” 

Morales-Izquierdo, 486 F.3d at 496.
16 PADILLA CUENCA V. BARR

of the prior removal order in the reinstatement proceeding 

itself. But she retains the right conferred by

§ 1229a(b)(5)(C)(ii), to seek rescission of a removal order 

entered in absentia, based on lack of notice, by filing a 

motion to reopen ‘at any time.’” Id. at 1002–03 (quoting 

Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per 

curiam)) (emphasis added).

Unlike Morales-Izquierdo and Miller, Padilla’s 

underlying removal order was not entered in absentia. 

Padilla received far more process than did the petitioners in 

either of those cases. He received notice of and appeared at 

the original removal hearing, was advised of and waived his 

right to counsel, and conceded removability.

Furthermore, unlike Morales-Izquierdo, Padilla petitions 

for review of the BIA’s denial of his motion to reopen, not 

for review of the reinstatement order itself.4 Thus, Padilla’s 

case procedurally is more akin to Miller. But unlike Miller, 

Padilla’s motion to reopen was not filed pursuant to 

§ 1229a(b)(5)(C)(ii), and Padilla can point to no specific 

statutory provision separate from § 1229a(c)(7) that confers 

upon him the right to reopen his prior removal proceeding 

4 For this reason, we reject the Government’s argument that 

Morales-Izquierdo requires denial of Padilla’s petition because 

reinstatement of a prior removal order does not violate due process 

regardless of the process afforded in the underlying removal proceeding. 

Padilla’s petition comes to us in a different procedural posture than 

Morales-Izquierdo. He is not presently challenging the reinstatement 

order, nor could he at this time. “[W]here an alien pursues reasonable 

fear withholding of removal proceedings following the reinstatement of 

a prior removal order, the reinstated removal order does not become final 

until the reasonable fear of persecution and withholding of removal 

proceedings are complete.” Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 

(9th Cir. 2012).
PADILLA CUENCA V. BARR 17

despite § 1231(a)(5)’s plain command. See RodriguezSaragosa, 904 F.3d at 355.

Suggesting incompetence raises questions similar to 

absentia, Padilla invokes the principle of constitutional 

avoidance to contend that we must allow reopening so as to 

avoid a result that would require him to remain in Mexico in 

order to challenge the original removal, which thereby 

creates constitutional questions. This, however, is a 

misapplication of the canon of constitutional avoidance. 

“The canon of constitutional avoidance comes into play only 

when, after the application of ordinary textual analysis, the 

statute is found susceptible of more than one construction; 

and the canon functions as a means of choosing between 

them.” Clark v. Martinez, 543 U.S. 371, 385 (2005)

(emphasis in original). Section 1231(a)(5)’s command is 

clear and its results intended. As the Supreme Court 

explained in Fernandez-Vargas, § 1231(a)(5) “explicitly 

insulates the [underlying] removal orders from review, and 

generally forecloses discretionary relief from the terms of 

the reinstated order.” 548 U.S. at 35. Though the 

reinstatement provision “does not penalize an alien for the 

reentry,” it “subjects him to [a] new and less generous legal 

regime” because of his continued unlawful presence, which 

is “an indefinitely continuing violation that the alien himself 

could end at any time by voluntarily leaving the country.” 

Id. at 44; see also Morales-Izquierdo, 486 F.3d at 498 

(“While aliens have a right to fair procedures, they have no 

constitutional right to force the government to re-adjudicate 

a final removal order by unlawfully reentering the 

country.”); Cordova-Soto, 732 F.3d at 794 (“Congress made 

a reasonable and understandable choice to provide that an 

alien who is removed . . . should not be able to engage in 

unlawful self-help by simply sneaking back into the 

country.”).
18 PADILLA CUENCA V. BARR

Moreover, even this harsher legal regime offers avenues 

of relief. For example, notwithstanding § 1231(a)(5)’s bar 

on any relief, “withholding of removal and [Convention 

Against Torture] protection[s] are available to individuals in 

reinstatement proceedings.” Perez-Guzman v. Lynch, 

835 F.3d 1066, 1075 (9th Cir. 2016); see 8 C.F.R. 

§§ 208.16(c)(4), 208.31(e). We also have recognized that 

reinstatement does not insulate a prior removal order from 

review under all circumstances. Rather, § 1252(a)(2)(D) 

“permits some collateral attack on the underlying removal 

order during review of the reinstatement order if the 

petitioner can show that he has suffered a ‘gross miscarriage 

of justice’ in the initial deportation proceeding.” Garcia de 

Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th 

Cir. 2008) (quoting Debeato v. Att’y Gen. of the United 

States, 505 F.3d 231, 235 (3d Cir. 2007)). What Padilla 

cannot do, however, is reopen his prior removal order under 

§ 1229a(c)(7). Forfeiture of the right to reopen under 

§ 1229a(c)(7) is part of the less favorable legal regime to 

which Padilla is now subject by unlawfully reentering and 

remaining in the United States despite his prior removal 

order.5

5 Another example is forfeiture of the right to apply for asylum. 

Perez-Guzman, 835 F.3d at 1081. When an alien subject to a reinstated 

removal order professes a reasonable fear of returning to the country 

designated in his reinstated removal order, the IJ is limited to 

adjudicating only his eligibility for withholding of removal. 8 C.F.R. 

§ 208.31(e), (g)(2)(i). Yet under Padilla’s argument, once in 

withholding of removal proceedings an alien could move to reopen his 

underlying removal order so that he could then apply for asylum, 

effectively eviscerating this limitation. This anomaly further undermines 

Padilla’s argument.
PADILLA CUENCA V. BARR 19

IV. Conclusion

In this precedential opinion, we join the Fifth and 

Seventh Circuits in concluding that § 1231(a)(5) bars 

reopening a removal order that has been reinstated following 

an alien’s unlawful reentry into the United States. Because 

Padilla’s 2008 removal order has been reinstated, the BIA 

properly concluded that § 1231(a)(5) deprived it of 

jurisdiction to entertain Padilla’s motion to reopen.

PETITION DENIED.