Reinstatement Under 8 U.S.C. § 1231(a)(5) Forecloses BIA Reopening and Reinforces Strict Time-and-Number Limits on Motions to Reopen

I. Introduction

In Dominguez-Gutierrez v. Garland (captioned in the order as Enrique Dominguez v. Pamela J. Bondi, United States Attorney General), the Tenth Circuit reviewed a pro se petition challenging the Board of Immigration Appeals’ (BIA) denial of a third motion to reopen removal proceedings. The case arises from a long procedural history beginning with Mr. Dominguez’s lawful permanent residence (since 1981), a 1996 Colorado controlled-substance guilty plea, and a 1998 removal order (which he waived appeal). After later illegal reentries and a reinstatement of the original removal order, Mr. Dominguez sought reopening multiple times—principally to pursue discretionary relief under former INA § 212(c) and to raise ineffective-assistance arguments.

The central issues before the court were narrow but consequential: (1) whether the BIA abused its discretion in denying the third reopening motion as untimely and numerically barred; and (2) whether the reinstatement statute, 8 U.S.C. § 1231(a)(5), independently renders the prior removal order not subject to being reopened or reviewed, thereby foreclosing reopening and relief.

II. Summary of the Opinion

The Tenth Circuit denied the petition for review. Applying abuse-of-discretion review, the court held that the BIA acted rationally in concluding that the third motion to reopen was both:

  • Numerically barred (noncitizens are generally limited to one motion to reopen), and
  • Untimely (motions must generally be filed within 90 days of the final administrative removal order).

Separately and decisively, the court agreed with the BIA that reinstatement of Mr. Dominguez’s prior removal order after illegal reentry made the order “not subject to being reopened or reviewed” under 8 U.S.C. § 1231(a)(5). The court relied on Supreme Court guidance that § 1231(a)(5) applies to “all illegal reentrants” and “explicitly insulates the removal orders from review.”

III. Analysis

A. Precedents Cited

1. Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004)

Infanzon supplies the governing standard of review: denial of a motion to reopen is reviewed for abuse of discretion. The Tenth Circuit quoted Infanzon for the key formulations: the BIA abuses its discretion when its decision lacks a rational explanation, departs from established policies without explanation, is devoid of reasoning, or consists only of summary/conclusory statements.

This framing matters because it sharply limits the court’s role: the question is not whether reopening would be equitable or desirable, but whether the BIA’s denial is irrational or policy-deviant given the governing statutes and regulations.

2. Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)

Fernandez-Vargas is the opinion’s most important cited authority on reinstatement. The Tenth Circuit used it to confirm two propositions about 8 U.S.C. § 1231(a)(5):

  • It applies broadly to “all illegal reentrants.”
  • It “explicitly insulates the removal orders from review” and generally forecloses discretionary relief from the reinstated order’s terms.

In practical effect, Fernandez-Vargas supplies the interpretive anchor that reinstatement is not merely a procedural shortcut to removal; it is a jurisdiction- and remedy-limiting mechanism that blocks efforts to revisit the underlying order in ordinary administrative channels.

3. Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991)

The court cited Hall to explain how it treats pro se filings: it will liberally construe them but will not serve as the litigant’s advocate. This is significant because many reopening petitions are pro se, and liberal construction cannot overcome statutory bars like time limits, numerical limits, or reinstatement’s prohibition on reopening/review.

4. Prior proceedings involving Mr. Dominguez

  • Dominguez v. Sessions, No. 17-9526, Order at 2 (10th Cir. July 31, 2017) (unpublished): the court dismissed an earlier petition as untimely, illustrating the procedural rigor of judicial review deadlines in immigration cases.
  • Dominguez v. Garland, 859 F. App'x 853 (10th Cir. 2021): the court upheld denial of a prior reopening motion as time-barred and held it lacked jurisdiction to review denial of sua sponte reopening—context the panel referenced to show repetitive issues and existing barriers.

5. Authorities referenced in the § 212(c) footnote

  • United States v. Almanza-Vigil, 912 F.3d 1310 (10th Cir. 2019)
  • Sosa-Valenzuela v. Holder, 692 F.3d 1103 (10th Cir. 2012)

These cases are used to situate former § 212(c) relief historically (pre-AEDPA/IIRIRA) and to clarify that § 212(c) waivers remain relevant for certain pre-April 1, 1997 guilty pleas, subject to substantial eligibility limitations. Although the panel did not reach a full merits analysis of § 212(c) eligibility here, this background underscores that even potentially available legacy relief can be procedurally unreachable when reopening is barred.

6. Judulang v. Holder, 565 U.S. 42 (2011)

Mr. Dominguez invoked Judulang in arguing he met requirements for discretionary relief. The panel did not engage Judulang substantively, because it resolved the case on threshold procedural and statutory barriers (time/number limits and § 1231(a)(5)). The implicit lesson is that even strong or evolving merits doctrines cannot be reached when the case is procedurally foreclosed.

B. Legal Reasoning

  1. Jurisdiction and standard of review. The court exercised jurisdiction under 8 U.S.C. § 1252 and applied abuse-of-discretion review to the BIA’s denial of reopening (Infanzon). This framework presumes deference so long as the BIA’s rationale is coherent and consistent with governing law.
  2. Strict statutory and regulatory reopening limits. The court treated the numerical and time limits as straightforward:
    • One motion to reopen generally allowed: 8 U.S.C. § 1229a(c)(7)(A).
    • 90-day filing deadline: 8 U.S.C. § 1229a(c)(7)(C)(i).
    • Parallel regulation: 8 C.F.R. § 1003.2(c)(2).
    Because Mr. Dominguez had already filed two motions and filed the third nearly fifteen years after finality, the BIA’s denial had a clear statutory basis.
  3. Reinstatement as an independent bar to reopening/review and relief. The opinion then reinforces a separate, stronger barrier: 8 U.S.C. § 1231(a)(5). Once DHS reinstates a prior order after illegal reentry, the statute provides the 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.” Citing Fernandez-Vargas, the court emphasized the breadth of this insulation from review.
  4. Disposition. Given these barriers, the court could deny relief without reaching (and largely without discussing) ineffective assistance, equitable tolling, § 212(c), or Judulang-based arguments.

C. Impact

Although designated “not binding precedent” (except under law-of-the-case, res judicata, and collateral estoppel), the order underscores several practical rules likely to influence future litigation and agency practice in the Tenth Circuit:

  • Reinstatement is a powerful foreclosure device. Once § 1231(a)(5) applies, litigants face a steep (often dispositive) obstacle to using reopening to revisit the underlying removal order, even when they assert constitutional or fairness-based claims (e.g., ineffective assistance) or invoke legacy relief such as § 212(c).
  • Time-and-number limits remain front-line defenses. The court’s reasoning shows that repetitive reopening attempts—especially long after finality—will generally fail absent a recognized exception, and the BIA does not abuse its discretion by enforcing these limits.
  • Merits innovations may be unreachable when procedure bars the door. Arguments grounded in broader administrative-law principles (as in Judulang) may never be heard if the motion is time/number barred or if § 1231(a)(5) blocks reopening/review.
  • Pro se status does not relax statutory bars. Liberal construction of pro se filings (Hall) assists with comprehension, not with overcoming jurisdictional or statutory prohibitions.

IV. Complex Concepts Simplified

Motion to reopen
A request to the immigration court or BIA to restart completed removal proceedings to consider new evidence or arguments. Congress limits such motions in number (generally one) and time (generally within 90 days).
Numerically barred / untimely
“Numerically barred” means too many motions have already been filed; “untimely” means filed after the deadline. Either defect can justify denial.
Reinstatement of removal (8 U.S.C. § 1231(a)(5))
If a person is removed and later illegally reenters, DHS can “reinstate” the old removal order. The statute then says the old order is not subject to being reopened or reviewed, and the person generally cannot apply for relief under the INA.
INA § 212(c) waiver
A repealed but sometimes still-available form of discretionary relief for certain long-term lawful permanent residents with older convictions, especially those who pleaded guilty before key statutory changes. Even when potentially available, it may be inaccessible if reopening is barred.
Sua sponte reopening
A rare discretionary power for the BIA to reopen a case on its own initiative. Courts often lack jurisdiction to review denials of sua sponte reopening, and the power does not override statutory bars like reinstatement in any routine way.
Equitable tolling
A doctrine that can, in some contexts, pause or extend a filing deadline due to extraordinary circumstances and diligence. Here, the court did not need to reach tolling because the motion was also numerically barred and, critically, reinstatement barred reopening/review.

V. Conclusion

The Tenth Circuit’s decision affirms the BIA’s strict enforcement of reopening limits and highlights the decisive effect of reinstatement under 8 U.S.C. § 1231(a)(5): once a prior removal order is reinstated after illegal reentry, it is “not subject to being reopened or reviewed,” and relief is broadly foreclosed. As a result, even potentially substantial claims—ineffective assistance, legacy § 212(c) relief, or arguments invoking Judulang v. Holder—may be functionally unreachable when procedural bars and reinstatement apply.