NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE MARTINEZ-VENTURA, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 18-72541 

Agency No. A078-245-059 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 9, 2024**

Pasadena, California

Before: WARDLAW, FRIEDLAND, and SUNG, Circuit Judges.

Jorge Martinez-Ventura (“Martinez”), a native and citizen of Mexico, 

petitions for review of the reinstatement of a prior removal order.

1

 The

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

1 Martinez seeks judicial notice of documents related to his initial removal

and his counsel’s communications with DHS. Dkt. No. 49. The Government does 

FILED

FEB 16 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

reinstatement order became final when the Immigration Judge (“IJ”) issued a 

negative credible fear determination, and the order is now reviewable by our court

under 8 U.S.C. § 1252(a)(1). See Andrade-Garcia v. Lynch, 828 F.3d 829, 833–34

(9th Cir. 2016). In the context of reinstatement orders, we may review 

“constitutional claims or questions of law.” Bravo-Bravo v. Garland, 54 F.4th 

634, 637 (9th Cir. 2022) (quoting 8 U.S.C. § 1252(a)(2)(D)). Martinez was first 

removed in 1991 and has been removed following reinstatement multiple times 

since then. Martinez now asserts that he did not receive notice of and did not 

appear at his original removal hearing in 1991 but that he cannot prove the lack of 

notice because the government has refused him access to his A-file. 

To start, the Government’s argument that we lack jurisdiction because of the 

30-day time limit in 8 U.S.C. § 1252(b)(1) is foreclosed by Alonso-Juarez v. 

Garland, 80 F.4th 1039, 1043 (9th Cir. 2023). There, we held that the 30-day 

deadline is not jurisdictional, and that the clock begins to run at the conclusion of 

reasonable fear proceedings. Id. Here, Martinez timely filed his petition for 

review on the same day that the IJ affirmed the negative reasonable fear finding

not oppose the motion and requests notice of an additional document. Dkt. No. 55. 

Our decision in this appeal is limited to whether the Government’s failure to 

produce the A-file allows for a collateral attack on the underlying removal order, 

and the documents are not necessary to resolve that question. Both parties’ 

requests are therefore DENIED. Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir. 

2010) (denying judicial notice of materials that were “not relevant to the 

disposition of th[e] appeal”). 
3 

and thereby concluded the reasonable fear proceedings. 

A collateral attack on an underlying removal order is allowed “if the

petitioner can show that he has suffered a ‘gross miscarriage of justice’ in the

initial deportation proceeding.” Lopez v. Garland, 17 F.4th 1232, 1234 (9th Cir. 

2021) (quoting Vega-Anguiano v. Barr, 982 F.3d 542, 544 (9th Cir. 2019)). To the 

extent Martinez bases his gross miscarriage of justice claim on the lack of access to 

his file in his reinstatement proceeding, that cannot confer jurisdiction because he 

must identify a gross miscarriage of justice in his initial removal proceeding. Id. 

To the extent Martinez’s gross miscarriage of justice claim is based on his 

assertion that he did not receive notice of his initial removal hearing and his initial 

removal order was issued in absentia, the proper vehicle for such a challenge is a 

motion to reopen under 8 U.S.C. § 1229a(b)(5)(C)(ii). Generally, an individual 

who has reentered unlawfully is barred from bringing a motion to reopen a 

reinstated removal order. See Bravo-Bravo, 54 F.4th at 637– 38. Notwithstanding 

this bar, individuals “retain[] the right . . . to seek rescission of a removal order 

entered in abstentia, based on lack of notice, by filing a motion to reopen ‘at any 

time.’” Miller v. Sessions, 889 F.3d 998, 1002–03 (9th Cir. 2018) (quoting 8 

U.S.C. § 1229a(b)(5)(C)(ii)). Even assuming that a lack of notice could constitute 

a “gross miscarriage of justice” if there were no vehicle for addressing it, Martinez 

has a vehicle available for addressing the purported lack of notice here. 
4 

Martinez argues that the Fifth Amendment due process requirement that the 

government furnish a copy of petitioner’s A-file during removal proceedings 

should extend to reinstatement proceedings. See Dent v. Holder, 627 F.3d 365, 

374 (9th Cir. 2010). But Martinez needs his A-file to make a challenge to his prior 

removal order that should be brought in a motion to reopen, which can be filed at 

any time. Because Martinez cannot make that challenge in this proceeding, 

Martinez cannot establish that he was prejudiced in this proceeding by the 

government’s failure to furnish a copy his A-file. Morales-Izquierdo v. Gonzales, 

486 F.3d 484, 495– 96 (9th Cir. 2007) (“[A]s a predicate to obtaining relief for a 

violation of procedural due process rights in immigration proceedings, [petitioner] 

must show that the violation prejudiced him.” (quotation marks omitted)).

PETITION DISMISSED.