The Tenth Circuit has affirmed that the agency lacks authority to reopen a reinstated removal order. In this case, the petitioner was a lawful permanent resident who was ordered removed (and physically removed) due to a felony animal cruelty conviction. After his removal, a state court vacated the conviction due to ineffective assistance of counsel, and reinstated the original charges. The petitioner sought reopening of his removal order, which the Immigration Judge denied because the criminal charges were still reinstated and remained pending. The petitioner then unlawfully reentered the United States, and the Department of Homeland Security reinstated his removal order. Subsequently, he pled to misdemeanor animal cruelty, which was not a deportable offense, and filed a second motion to reopen, which the agency declined to grant because his removal order had already been reinstated. The Tenth Circuit agreed that the reinstatement barred reopening, and that the petitioner had forfeited his right to reopening by reentering illegally. Moreover, the court declined to find a “gross miscarriage of justice” exception to the bar to reopening reinstated orders, and further opined that even if such an exception existed, it would not apply to this case, because the petitioner’s conviction was vacated after he was removed. Finally, the court declined to extend nunc pro tunc relief with respect to the first motion to reopen, which was filed before the petitioner reentered the United States, finding that nunc pro tunc relief is an equitable remedy, which was barred by the petitioner’s “unclean hands.”
The full text of Tarango-Delgado v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110613259.pdf