Martinez-Ventura v. Garland

1

JORGE MARTINEZ-VENTURA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 18-72541

United States Court of Appeals, Ninth Circuit

February 16, 2024

NOT FOR PUBLICATION

Submitted February 9, 2024 ^[**] Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A078-245-059

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

MEMORANDUM ^[*]

Jorge Martinez-Ventura ("Martinez"), a native and citizen of Mexico, petitions for review of the reinstatement of a prior removal order.^[1] The 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 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.

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, [petitio...