United States Court of Appeals For the First Circuit

No. 20-1679

FABIO NOE GARCIA SARMIENTO,

Petitioner,

v.

MERRICK B. GARLAND,* Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Lynch and Kayatta, Circuit Judges.

Susan M. Pires on brief for petitioner. Timothy G. Hayes, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Brian Boynton, Acting Assistant Attorney General, and Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, on brief for respondent.

August 17, 2022

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr as the respondent. LYNCH, Circuit Judge. Petitioner Fabio Noe Garcia

Sarmiento purports to petition for review of two decisions of the

Board of Immigration Appeals ("BIA"). In the first decision, dated

January 16, 2020, the BIA dismissed Garcia Sarmiento's appeal of

an Immigration Judge's ("IJ") denial of his application for

withholding of removal,

(b)(3), and protection

under the Convention Against Torture ("CAT"),

(c). In the second, dated June 10, 2020, the BIA denied

his motion to reopen proceedings, 8 U.S.C. § 1229a(c)(7). Because

the petition is timely only as to the June 10 decision, we dismiss

Garcia Sarmiento's petition for review of the January 16 decision.

As to the June 10 decision, we deny the petition to review the

BIA's denial of the motion to reopen.

I.

These facts are drawn primarily from the IJ's oral

decision of August 30, 2019, which was the subject of the January

16, 2020 BIA decision. Garcia Sarmiento is a native and citizen

of Honduras. He first entered the United States in 2001 as a

lawful permanent resident. He was ordered removed and deported to

Honduras in 2008 after he was convicted of possession of cocaine.

In Honduras, Garcia Sarmiento had a barbershop. Gang members came

to his business several times in the summer of 2014 and threatened

him, demanding that he pay them rent. In June of 2014, gang

members killed Garcia Sarmiento's brother. Garcia Sarmiento left

- 2 - Honduras and, fearing violence from the gangs, reentered the United

States without inspection in 2014. Garcia Sarmiento pleaded guilty

to illegal reentry in violation of

(a) & (b)(1) and

was sentenced to time served. See Judgment in a Criminal Case,

United States v. Garcia-Sarmiento, No. 18-cr-00108 (D.R.I. June

14, 2019), ECF No. 26. On July 26, 2019, the Department of Homeland

Security ("DHS") reinstated Garcia Sarmiento's previous removal

order.

After expressing a fear of returning to Honduras, Garcia

Sarmiento was referred to an asylum officer to determine his

eligibility to apply for withholding of removal. Following an

interview where it was determined Garcia Sarmiento had a reasonable

fear of harm if he were returned to Honduras, he applied for

withholding of removal. On August 30, 2019, Garcia Sarmiento had

a hearing before an IJ. The IJ found that Garcia Sarmiento was

credible. The IJ concluded that Garcia Sarmiento had not met his

burden of showing eligibility for withholding of removal for three

reasons: he had not demonstrated that he was a member of a

protected social group, he had not shown the requisite nexus

between his belonging to even his purported protected social group

and the violence he feared, and he did not show that the Honduran

government would be unwilling or unable to control the gang

violence. See

(b)(3); see also Pulisir v. Mukasey,

(1st Cir. 2008). The IJ found that CAT protection

- 3 - was not warranted because there was insufficient evidence that

Garcia Sarmiento would more likely than not be tortured if he

returned to Honduras. This was based on the evidence that Garcia

Sarmiento had never been harmed by government officials and his

testimony that he did not think the police would harm him, he did

not fear the police, and he did not know if police were working

with the people who wanted to harm him or if they would allow

others to hurt him. See

(a)(1); see also Ali v.

Garland,

(1st Cir. 2022). On appeal, the BIA

adopted and affirmed the IJ's decision on January 16, 2020.

Garcia Sarmiento filed a motion with the BIA to reopen

removal proceedings regarding the 2008 removal order and to stay

removal on January 24, 2020. See 8 U.S.C. § 1229a(c)(7). The

basis of his motion was the vacatur of his cocaine-possession

conviction, which had led to his removal in 2008. He argued that

the vacatur of his cocaine-possession conviction would make him

eligible for and likely to succeed on a claim for either

cancellation of removal or voluntary departure.

On June 10, 2020, the BIA denied Garcia Sarmiento's

motion to reopen, finding that he had not established prima facie

eligibility for relief. The BIA first found that under section

241(a)(5) of the Immigration and Nationality Act, Garcia Sarmiento

was ineligible for relief because he was in withholding-only

proceedings after having a prior removal order reinstated. See 8

- 4 - U.S.C. § 1231(a)(5). It next found that even if Garcia Sarmiento

were not barred from such relief, he had not demonstrated either

that he had been continuously physically present in the United

States for ten years or any hardship to qualifying relatives, both

of which are necessary to establish a prima facie case for

eligibility for cancellation of removal. See id. § 1229b(b)(1).

The BIA also found that the new evidence would "not impact the

reasoning for the denial of his prior applications for relief."

Garcia Sarmiento timely petitioned for review of the

June 10 BIA decision on July 9, 2020. See

(b)(1).

II.

A. January 16, 2020 BIA Decision

In his petition, Garcia Sarmiento argues that the BIA

erred in dismissing his appeal of the IJ's determination that he

was ineligible for withholding of removal. The government contends

that this court lacks jurisdiction to review the January 16

decision because Garcia Sarmiento did not file his petition within

the statutorily required thirty days. See

(b)(1);

see also Hurtado v. Lynch,

(1st Cir. 2016).1 Garcia

1 There is some question as to whether the appropriate date to begin the thirty-day clock is the date of the BIA's denial of the appeal or the date that the removal order was reinstated. See Bhaktibhai-Patel v. Garland,

(2d Cir. 2022) (finding that a reinstated removal order's reinstatement "became final on the day of that decision, order, and certification" rather than the date that the BIA affirmed the order

- 5 - Sarmiento did not file the present petition until July 9, 2020,

well outside of the thirty-day deadline.

"A motion to reopen or reconsider does not toll the

period for filing a petition for judicial review of the underlying

order of deportation." Ven v. Ashcroft,

(1st

Cir. 2004); see also Stone v. INS,

(1995).

The thirty-day time limit to file petitions for review is a "strict

jurisdictional requirement." Zhang v. INS,

(1st

Cir. 2003). Accordingly, we do not have jurisdiction to hear

Garcia Sarmiento's challenge to the January 16 decision.

B. June 10, 2020 BIA Decision

Our review of the BIA's denial of Garcia Sarmiento's

motion to reopen is "under the highly deferential abuse-of-

discretion standard." Adeyanju v. Garland,

(1st

Cir. 2022) (internal quotation marks omitted) (quoting Tay-Chan v.

Barr,

(1st Cir. 2019)). We will find an abuse

of discretion only where the petitioner shows that the BIA

"committed a material error of law or exercised its authority

arbitrarily, capriciously, or irrationally."

(quoting Tay-

Chan,

).

for purposes of the thirty-day time limit in section 1252). Because it would not change the outcome in the present case, we do not delve into this question.

- 6 - The BIA correctly found that Garcia Sarmiento is barred

from reopening his removal order by

(a)(5). This

provision states:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

Because Garcia Sarmiento reentered the country illegally in 2014

following removal, as the BIA concluded, he is now prohibited from

the relief he seeks. See Lattab v. Ashcroft,

(1st

Cir. 2004) ("[

(a)(5)] subjects an illegal reentrant

to three independent consequences: reinstatement of the prior

deportation order, ineligibility for any relief, and removal.").

Many of our sister circuits have held that persons

subject to reinstated removal orders following unlawful reentry

are barred from reopening their orders of removal. See Tarango-

Delgado v. Garland,

, 1238–39 (10th Cir. 2021);

Sanchez-Gonzalez v. Garland,

(6th Cir. 2021);

Gutierrez-Gutierrez v. Garland,

(8th Cir. 2021);

Cuenca v. Barr,

(9th Cir. 2020); Alfaro-Garcia

v. U.S. Att'y Gen.,

(11th Cir. 2020); Rodriguez-

- 7 - Saragosa v. Sessions,

(5th Cir. 2018); Tapia-

Lemos v. Holder,

(7th Cir. 2012). We agree.

We begin with the text of section 1231(a)(5). See Baker

v. Smith & Wesson, Inc.,

(1st Cir. 2022). It

states that where a petitioner "has reentered the United States

illegally after having been removed," "the prior order of removal

is reinstated from its original date and is not subject to being

reopened."

(a)(5); see also Tarango-Delgado,

. Here, Garcia Sarmiento does not contest that he

was removed, unlawfully reentered the country, and is now the

subject of a reinstated removal order. Under a plain reading of

section 1231(a)(5), his reinstated removal order cannot be

reopened. See Johnson v. Guzman Chavez,

(2021) ("[R]einstated orders are not subject to reopening or

review . . . .").

This plain reading accords with Congress's decision to

take a "harder line" with people who reenter the country unlawfully

when it enacted the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, amending section 1231(a)(5) to apply

to all illegal reentrants. Fernandez-Vargas v. Gonzales,

(2006); accord Sanchez-Gonzalez,

.

This reading also accords with the Supreme Court's

discussion of withholding-only proceedings in Guzman Chavez.

There, the Court only noted that withholding proceedings are

- 8 - available to petitioners subject to reinstated removal orders.

Guzman Chavez,

. In withholding-only

proceedings, a petitioner can seek, as Garcia Sarmiento did,

statutory withholding under section 1231(b)(3)(A) and withholding

under the CAT.

. However, even obtaining protection

in withholding-only proceedings (which Garcia Sarmiento did not)

does not change the finality of the reinstated removal order; it

only prevents removal to a specific country, not removal from the

United States.

at 2285–86. As the Court explained, "removal

orders and withholding-only proceedings address two distinct

questions. . . . [A]nd the finality of the order of removal does

not depend in any way on the outcome of the withholding-only

proceedings."

. That Garcia Sarmiento entered into

withholding-only proceedings does not affect the finality of his

reinstated removal order, which the BIA correctly found is not

subject to being reopened.

Finally, Garcia Sarmiento asserts that the BIA erred not

only by denying his motion to reopen removal proceedings but also

by failing to "otherwise grant" him voluntary departure. But to

the extent Garcia Sarmiento now requests voluntary departure

independent of his motion to reopen, we must dismiss his petition

for failure to exhaust administrative remedies. "We have

consistently held that 'arguments not raised before the BIA are

waived due to a failure to exhaust administrative remedies.'" Shah

- 9 - v. Holder,

(1st Cir. 2014) (quoting Molina De

Massenet v. Gonzales,

(1st Cir. 2007)). Garcia

Sarmiento made only a passing reference before the BIA that, as

part of reopening, he should be granted voluntary departure. The

argument he makes to us was not exhausted before the agency. Nor

does his petition argue that the BIA was incorrect to interpret

his references to voluntary departure as part of his motion to

reopen. That ends the matter.

III.

The petition is dismissed in part and denied in part.

- 10 -