Reinstated Removal Orders Are Not Reopenable: § 1231(a)(5) as an Absolute Bar to BIA Review

1. Introduction

In Dominguez-Gutierrez v. Garland (captioned in the order as Enrique Dominguez v. Pamela J. Bondi), the Tenth Circuit reviewed a pro se petition challenging the Board of Immigration Appeals’ (BIA) denial of a third motion to reopen removal proceedings. Mr. Dominguez, a Mexican national and lawful permanent resident since 1981, was ordered removed in 1998 following a Colorado drug conviction deemed an aggravated felony. He waived appeal, later reentered the United States illegally, and the government reinstated his prior removal order.

The central issues were procedural and jurisdictional in effect: whether a third motion to reopen—filed almost fifteen years after the final order and after two prior motions—could proceed despite statutory time/number limits, and whether reinstatement of the removal order under 8 U.S.C. § 1231(a)(5) foreclosed reopening or review altogether.

2. Summary of the Opinion

The Tenth Circuit denied the petition for review, holding the BIA did not abuse its discretion in denying the third motion to reopen as (1) untimely, (2) numerically barred, and (3) “subject to no exception” because the prior removal order had been reinstated after illegal reentry. The court emphasized that reinstatement under 8 U.S.C. § 1231(a)(5) renders the prior removal order “not subject to being reopened or reviewed” and generally bars eligibility for relief under the INA.

3. Analysis

A. Precedents Cited

  • Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004)
    The court used Infanzon to define the abuse-of-discretion standard governing denials of motions to reopen. Under that framework, the BIA abuses discretion only when its decision lacks a rational explanation, departs from established policy, is devoid of reasoning, or is purely conclusory. This standard is highly deferential and made it difficult for Mr. Dominguez to obtain relief given the clear statutory bars.
  • Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991)
    Hall supplied the rule for pro se filings: liberal construction, but no judicial role as advocate. The court invoked this to frame how it assessed Mr. Dominguez’s arguments without rewriting them into viable claims.
  • Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)
    This was the controlling authority for the reinstatement bar. The panel quoted Fernandez-Vargas for two critical propositions: § 1231(a)(5) applies to “all illegal reentrants” and “explicitly insulates the removal orders from review,” while also “generally foreclos[ing] discretionary relief” from a reinstated order. This precedent anchored the panel’s conclusion that reopening/review was foreclosed once reinstatement occurred.
  • Judulang v. Holder, 565 U.S. 42 (2011)
    Mr. Dominguez invoked Judulang to support eligibility for discretionary relief. The panel did not reach any Judulang-based merits analysis because the procedural bars (time/number limits) and the reinstatement bar under § 1231(a)(5) disposed of the case first.
  • United States v. Almanza-Vigil, 912 F.3d 1310 (10th Cir. 2019) and Sosa-Valenzuela v. Holder, 692 F.3d 1103 (10th Cir. 2012)
    These cases were cited in a background footnote explaining former INA § 212(c) relief: its pre-1996 scope, the eligibility contraction under AEDPA, and eventual repeal under IIRIRA. They situate Mr. Dominguez’s attempted § 212(c) strategy historically, but they did not drive the outcome because the reinstatement bar blocked reopening.
  • Dominguez v. Sessions, No. 17-9526, Order at 2 (10th Cir. July 31, 2017) (unpublished)
    The opinion referenced this prior proceeding to show Mr. Dominguez had earlier sought review but the petition was dismissed as untimely—reinforcing the long-final posture of the 1998 order.
  • Dominguez v. Garland, 859 F. App'x 853 (10th Cir. 2021)
    The court recounted that it previously upheld the BIA’s denial of his second motion as time-barred and found it lacked jurisdiction to review denial of sua sponte reopening. This history supported the BIA’s observation that the third motion recycled issues already rejected and remained blocked by threshold limitations.

B. Legal Reasoning

  1. Time and number limits independently justified denial.
    The court applied the statutory and regulatory restrictions: a noncitizen generally may file only one motion to reopen and must do so within 90 days of the final administrative order. The panel cited 8 U.S.C. § 1229a(c)(7)(A), § 1229a(c)(7)(C)(i), and 8 C.F.R. § 1003.2(c)(2). Because Mr. Dominguez filed a third motion nearly fifteen years after finality, the BIA’s untimeliness and numerical-bar determinations were straightforward and rational under Infanzon.
  2. Reinstatement under § 1231(a)(5) functioned as an absolute foreclosure of reopening/review.
    The opinion’s pivotal move was treating reinstatement as rendering the prior order “administratively final” and “subject to no exception.” Relying on the text of 8 U.S.C. § 1231(a)(5)—that a reinstated order “is not subject to being reopened or reviewed” and the noncitizen “is not eligible and may not apply for any relief under this chapter”—and on Fernandez-Vargas v. Gonzales, the panel concluded that once Mr. Dominguez illegally reentered and the order was reinstated, the BIA could not reopen or review the underlying 1998 proceedings.
  3. The court did not reach underlying equitable/merits theories.
    Mr. Dominguez raised ineffective assistance of counsel, equitable tolling for a direct appeal, alleged error in denying § 212(c) relief, and a Judulang argument. The panel effectively treated these as non-starters because reopening was barred procedurally (time/number) and structurally (reinstatement). The decision thus illustrates a common sequencing principle: courts and agencies may resolve cases on dispositive threshold bars without adjudicating downstream merits.

C. Impact

  • Reinforces reinstatement as a “gate-closing” rule.
    Even where a noncitizen asserts potentially weighty claims (ineffective assistance, equitable tolling, or changes in discretionary-relief doctrine), a reinstated removal order under § 1231(a)(5) can eliminate the forum for litigating them via reopening. The decision underscores that, in the Tenth Circuit, reinstatement is treated as categorically insulating the underlying order from reopening/review.
  • Signals the limited role of equitable doctrines in the face of § 1231(a)(5).
    While equitable tolling can sometimes excuse filing deadlines, this opinion illustrates that tolling does not solve a separate statutory foreclosure: “not subject to being reopened or reviewed.”
  • Practical effect on § 212(c) strategies.
    The footnoted discussion of § 212(c) situates why long-resident noncitizens with old guilty pleas pursue reopening, but the holding signals that illegal reentry and reinstatement may end the reopening pathway regardless of historical eligibility theories.
  • Precedential status.
    The panel designated the disposition as “not binding precedent” except under law-of-the-case, res judicata, and collateral estoppel, though it may be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Its persuasive force lies in its direct statutory application and reliance on Fernandez-Vargas v. Gonzales.

4. Complex Concepts Simplified

Motion to reopen
A request to restart immigration proceedings after a final order, typically to present new facts or fix a major procedural error. Congress sharply limits such motions by number (usually one) and time (usually 90 days).
Numerically barred / untimely
“Numerically barred” means the person already used the one motion allowed. “Untimely” means it was filed after the statutory deadline.
Reinstatement (8 U.S.C. § 1231(a)(5))
If a person is removed and later illegally reenters, the government can reinstate the old removal order. Reinstatement generally prevents reopening or review of that old order and bars many forms of relief.
§ 212(c) relief
A now-repealed form of discretionary waiver that can still apply in limited circumstances to certain pre-1997 guilty pleas. It is discretionary (not automatic) and, in this case, was never reached because reopening was barred.
Sua sponte reopening
The BIA’s discretionary authority to reopen on its own initiative in exceptional situations. Prior litigation history in this matter noted that denials of sua sponte reopening are often not reviewable by courts.
Abuse of discretion
A deferential appellate standard: the court will uphold the agency unless the agency’s decision lacks a rational explanation, contradicts established policy without explanation, or is conclusory.

5. Conclusion

The Tenth Circuit’s decision confirms a stringent procedural hierarchy in reopening litigation: statutory time and number limits foreclose late, repeated reopening efforts, and reinstatement under 8 U.S.C. § 1231(a)(5) operates as a near-complete bar to reopening or review of the underlying removal order after illegal reentry. By grounding its analysis in the text of § 1231(a)(5) and Fernandez-Vargas v. Gonzales, the court reaffirmed that many merits arguments—ineffective assistance, equitable tolling, and discretionary-relief theories such as § 212(c) and Judulang—cannot be reached where reinstatement has already closed the reopening door.