United States v. 2020-01-10 | 16-73791 | GUDELIA OCHOA V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUDELIA CARMELA OCHOA,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 16-73791

Agency No. A206-571-864

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted December 12, 2019
Seattle, Washington

Before: GRABER and BERZON, Circuit Judges, and EZRA,
**
District Judge.

Petitioner Gudelia Carmela Ochoa seeks review of the Department of
Homeland Security’s (“DHS”) reinstatement of Petitioner’s prior removal order,
the Washington Immigration Judge’s (“IJ”) agreement with a DHS asylum
officer’s negative reasonable fear determination, and the New York IJ’s decision to

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
FILED

JAN 10 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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terminate Petitioner’s proceedings. For the reasons stated below, we deny in part
and dismiss in part the petition.
1. The reinstatement of the initial removal order was valid regardless of the
validity of the initial removal order. “Reinstatement 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.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir. 2007) (en
banc). Under 8 U.S.C. § 1231(a)(5), a prior removal order is “reinstated from its
original date” and the initial removal order “is not subject to being reopened or
reviewed.” See Cuenca v. Barr, 941 F.3d 1213, 1218 (9th Cir. 2019) (“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.” (citation, brackets, and internal quotation marks omitted)).
2. The Washington IJ’s negative reasonable fear determination was
supported by substantial evidence. An alien must demonstrate “a reasonable
possibility that he or she would be persecuted on account of his or her race,
religion, nationality, membership in a particular social group or political opinion,
or a reasonable possibility that he or she would be tortured in the country of
removal.” 8 C.F.R. § 208.31(c); see Andrade-Garcia v. Lynch, 828 F.3d 829, 832

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(9th Cir. 2016). We must uphold the IJ’s negative reasonable fear determination
“unless, based on the evidence, ‘any reasonable adjudicator would be compelled to
conclude to the contrary.’” Id. at 833 (quoting Ai Jun Zhi v. Holder, 751 F.3d
1088, 1091 (9th Cir. 2014)). No reasonable adjudicator would feel so compelled
and, thus, we uphold the Washington IJ’s decision.
3. Whatever the alleged imperfections in the New York proceedings, we do
not have jurisdiction over them. Whatever may be the case where there is an
ongoing immigration proceeding and a reinstatement of removal order, and the two
pertain to the same event (such as the same border crossing), a pending proceeding
does not preclude a reinstatement order triggered by a different border crossing—
which is our case. That is, the proceedings here are not parallel or intertwined, but
rather are separate and distinct. The proceeding in New York pertained to
Petitioner’s having crossed the border without inspection in 1993. The
reinstatement here stems from Petitioner’s illegally trying to cross the border again
in mid-2016, after having done so in early 2016. The statutes authorize
reinstatement in this situation, and we cannot reach the New York proceedings,
whether they occurred before or after the reinstatement order.
Petition DENIED IN PART and DISMISSED IN PART.