Eduardo Ralph Junqueira v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO RALPH JUNQUEIRA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71899
Agency No. A098-006-386
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2023**
Phoenix, Arizona
Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.
Petitioner Eduardo Ralph Junqueira, a native and citizen of Brazil, petitions
for review of the Board of Immigration Appeals’ (“BIA”) dismissal, for lack of
jurisdiction, 8 U.S.C. § 1231(a)(5), of his appeal of the denial of a motion to
reconsider an Immigration Judge’s (“IJ”) previous denial of a motion to reopen.
* 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).
FILED
FEB 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.
Our review of the denial of a motion to reopen is limited to determining
whether the BIA or IJ erred in concluding that the IJ lacked jurisdiction.1 See
Bravo-Bravo v. Garland, 54 F.4th 634, 638 (9th Cir. 2022); 8 U.S.C.
§ 1252(a)(2)(D); see also Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th
Cir. 2018) (when the BIA agrees with the IJ’s decision and adds its own reasoning,
we review both decisions). “Whether [8 U.S.C.] § 1231(a)(5) bars the agency from
reopening a prior removal order and proceeding . . . [pursuant to 8 U.S.C.]
§ 1229a(c)(7) or sua sponte” under 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1) (2020)
“are questions of law we review de novo.” Bravo-Bravo, 54 F.4th at 640.
Title 8 U.S.C. § 1231(a)(5) “explicitly insulates the underlying removal
orders from review, and generally forecloses discretionary relief from the terms of
the reinstated order.” Id. at 637 (citation and internal quotation marks omitted).
Therefore, the BIA and IJ did not err in concluding that § 1231(a)(5) bars
consideration of Junqueira’s motion to reopen his reinstated removal order. Id. at
640–41.
Junqueira seeks to attack his underlying removal order collaterally because
of an alleged gross miscarriage of justice, but such collateral attacks may be raised
1 We treat Junqueira’s motion to reconsider the denial of his motion to
reopen removal proceedings as an extension of his original motion to reopen
removal proceedings.

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“only in a petition for review of a reinstatement proceeding or order.” Id. at 640.
(emphasis added). Here, the BIA dismissed Junqueira’s appeal regarding his
motion to reconsider reopening his removal order. Thus, the statute precludes our
review.
Junqueira also attempts to analogize his case to Miller v. Sessions, 889 F.3d
998 (9th Cir. 2018), in which we held that, in an exception to the usual
jurisdictional bar in § 1231(a)(5), a petitioner may seek recission of a removal
order entered in absentia, based on lack of notice, at any time. 889 F.3d at 1002–
03. Miller does not apply because Junqueira’s removal order was not entered in
absentia, so there was no risk that he would “first learn[] of the prior removal order
at the outset of the reinstatement proceeding.” Id. at 1002.
Junqueira nonetheless attempts to place himself within Miller’s broader
lack-of-notice logic, arguing that the two-step Notice to Appear (“NTA”) he
received to commence his 2004 removal proceedings was insufficient given the
Supreme Court’s rulings in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and
Pereira v. Sessions, 138 S. Ct. 2105 (2018). Our decision in United States v.
Bastide-Hernandez, 39 F.4th 1187, 1190–93, 1191 n.6 (9th Cir. 2022) (en banc),
petition for cert. docketed No. 22-6281 (U.S. Dec. 12, 2022), forecloses this
argument.

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Finally, Junqueira contends that the BIA and IJ should have invoked their
sua sponte authorities to reopen his removal proceedings given his two-step NTA
and the effects of Niz-Chavez and Pereira. See 8 C.F.R. §§ 1003.2(a),
1003.23(b)(1) (2020) (then-applicable BIA and IJ sua sponte authorities).
However, § 1231(a)(5) bars the IJ and BIA from exercising their sua sponte
authorities to reopen. See Gutierrez-Zavala v. Garland, 32 F.4th 806, 809–10 (9th
Cir. 2022) (declining to address the petitioner’s arguments that the BIA should
have exercised its sua sponte reopening authority because “[t]he necessary and
certain result of § 1231(a)(5)’s bar . . . is the denial of [the petitioner’s] motion to
reopen for the BIA’s lack of jurisdiction.”).
The petition is DENIED.

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