                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 DORNA ALICIA MILLER,                              No. 15-72645
                                 Petitioner,
                                                    Agency No.
                      v.                           A097-344-335

 JEFFERSON B. SESSIONS III, Attorney
 General,                                             OPINION
                        Respondent.


          On Petition for Review of an Order of the
              Board of Immigration Appeals

            Argued and Submitted March 15, 2018
                  San Francisco, California

                           Filed May 8, 2018

Before: Paul J. Watford and Michelle T. Friedland, Circuit
    Judges, and Jed S. Rakoff,* Senior District Judge.

                   Opinion by Judge Watford




     *
       The Honorable Jed S. Rakoff, Senior United States District Judge
for the Southern District of New York, sitting by designation.
2                       MILLER V. SESSIONS

                            SUMMARY**


                            Immigration

    The panel granted Dorna Alicia Miller’s petition for
review of a decision of the Board of Immigration Appeals and
remanded, holding that 8 U.S.C. § 1231(a)(5), which governs
reinstatement of removal orders, does not deprive an
immigration court of jurisdiction to resolve a motion to
reopen a removal order issued in absentia, where the motion
is based on a claim of lack of notice of the individual’s
removal hearing.

    The case required the panel to interpret the interplay
between two provisions of the Immigration and Nationality
Act. One provision, 8 U.S.C. § 1229a(b)(5), authorizes
immigration judges to order non-citizens removed from the
country in absentia under certain circumstances, but also
provides a fail-safe mechanism: If the individual can show
that she never received notice of the hearing, she may seek to
rescind a removal order entered in absentia by filing a motion
to reopen “at any time.” § 1229a(b)(5)(C)(ii).

    The other provision at issue, 8 U.S.C. § 1231(a)(5),
applies to non-citizens who are ordered removed, leave the
United States while under the order of removal, and reenter
the country illegally. In that scenario, the Department of
Homeland Security may reinstate the prior removal order
through a summary proceeding that does not involve a
hearing before an immigration judge. The provision also

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     MILLER V. SESSIONS                       3

states that when an order is reinstated, the prior removal order
“is not subject to being reopened or reviewed.”

    After Miller was ordered removed in absentia in 2004,
she was apprehended attempting to reenter the United States,
and the DHS reinstated her 2004 removal order. After
expressing a fear of returning to El Salvador during her
reinstatement proceedings, her case was referred to an
immigration judge, who granted withholding of removal.
Miller then filed a motion to reopen seeking to rescind her
2004 order so that she could seek asylum, which confers a
broader set of rights than withholding of removal and is not
available during reinstatement proceedings.           Citing
§ 1231(a)(5), the immigration judge denied Miller’s motion
on the ground that he lacked jurisdiction to consider it, and
the BIA affirmed.

    As a threshold matter, the panel held that it had
jurisdiction to consider whether Miller could seek rescission
based on lack of notice, rejecting the government’s
contention that Miller failed to exhaust the issue by not citing
the correct subsection of § 1229a(b)(5)(C). The panel
concluded that Miller had sufficiently exhausted the issue by
repeatedly raising “lack of notice” in her brief to the BIA, and
by referring to the statutory authority to seek reopening “at
any time.”

    The panel held that § 1231(a)(5) does not bar immigration
judges from entertaining a motion to reopen an in absentia
removal order under § 1229a(b)(5)(C)(ii). The panel
acknowledged that the government’s contrary interpretation
of § 1231(a)(5) is not foreclosed by the text of the statute.
However, the panel concluded that such a reading of the
statute would raise potential due process concerns, at least in
4                    MILLER V. SESSIONS

circumstances, like those present in this case, in which the
non-citizen first learns of the prior removal order at the outset
of the reinstatement proceeding. Specifically, the panel noted
that the court has held that due process challenges to the
underlying removal order, even those predicated on lack of
notice, generally may not be raised in the reinstatement
proceeding itself. Thus, the panel concluded that, if the court
adopted the government’s reading of § 1231(a)(5), a non-
citizen whose due process rights were violated in the earlier
removal proceedings due to lack of notice could have the
resulting removal order reinstated against her without ever
being afforded an opportunity to challenge its legality.

     In sum, the panel held that, while an individual placed in
reinstatement proceedings under § 1231(a)(5) cannot as a
general rule challenge the validity of the prior removal order
in the reinstatement proceeding itself, she retains the right,
conferred by § 1229a(b)(5)(C)(ii), to seek rescission of a
removal order entered in absentia, based on lack of notice, by
filing a motion to reopen “at any time.”


                         COUNSEL

Kari E. Hong (argued), Boston College Law School, Newton,
Massachusetts, for Petitioner.

Aimee J. Carmichael (argued), Trial Attorney; Mary Jane
Candaux, Assistant Director; Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C.; for Respondent.
                         MILLER V. SESSIONS                          5

                               OPINION

WATFORD, Circuit Judge:

    This case requires us to interpret the interplay between
two provisions of the Immigration and Nationality Act. One
provision, 8 U.S.C. § 1229a(b)(5), authorizes immigration
judges to order non-citizens removed from the country in
absentia—that is, in the person’s absence. Such orders may
be entered when a non-citizen is directed to appear at a
removal hearing but fails to show up, provided the
government proves that it gave written notice of the hearing
as required by statute and that the non-citizen is in fact
removable. § 1229a(b)(5)(A). That rule would lead to
obvious unfairness (and potential due process problems) if it
were applied to someone who never actually received the
required notice. So the statute provides a fail-safe
mechanism: If the individual can show that she never
received notice of the hearing, she may seek to rescind a
removal order entered in absentia by filing a motion to
reopen “at any time.” § 1229a(b)(5)(C)(ii).1

   1
       Section 1229a(b)(5)(C) provides in relevant part:

               [A removal order entered in absentia] may be
          rescinded only—

          (i) upon a motion to reopen filed within 180 days after
          the date of the order of removal if the alien
          demonstrates that the failure to appear was because of
          exceptional circumstances (as defined in subsection
          (e)(1)), or

          (ii) upon a motion to reopen filed at any time if the
          alien demonstrates that the alien did not receive notice
          in accordance with paragraph (1) or (2) of section
6                         MILLER V. SESSIONS

    The other provision at issue here is 8 U.S.C. § 1231(a)(5).
That provision applies to non-citizens who (1) are ordered
removed, (2) leave the United States while under the order of
removal, and (3) reenter the country illegally. In that
scenario, the Department of Homeland Security (DHS) may
reinstate the prior removal order through a summary
proceeding that does not involve a hearing before an
immigration judge. See 8 C.F.R. § 241.8(a). When DHS
reinstates a removal order pursuant to § 1231(a)(5), the prior
removal order “is not subject to being reopened or reviewed.”
8 U.S.C. § 1231(a)(5).2

    The question presented in this case is what happens when
these two statutory provisions collide? If DHS reinstates a
removal order that was entered in absentia, can the non-
citizen still file a motion to reopen under § 1229a(b)(5)(C)(ii)
“at any time” on the ground that she never received notice of
the prior hearing? Or does § 1231(a)(5) preclude such a
motion by directing that the prior removal order “is not
subject to being reopened or reviewed”?


           1229(a) of this title or the alien demonstrates that the
           alien was in Federal or State custody and the failure to
           appear was through no fault of the alien.
    2
        Section 1231(a)(5) provides:

                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.
                    MILLER V. SESSIONS                       7

    This issue arises in a case involving Dorna Miller, a
native and citizen of El Salvador who fled her home country
after suffering horrific abuse there on account of her race.
She entered the United States unlawfully in March 2004 and
was promptly apprehended by immigration officials. They
gave her a written notice ordering her to appear at a hearing
before an immigration judge “on a date to be set at a time to
be set.” When Miller was released from detention, she gave
an immigration official the address at which she would be
residing, to which all future notices should be sent. Officials
subsequently mailed several notices to that address,
informing Miller that her removal hearing had been set for
May 7, 2004. She says she never received the notices, and
the record contains evidence to support her account as the
notices were returned with the notation “not deliverable as
addressed.” (It appears that the government sent at least
some of the notices to the incorrect zip code.) When Miller
failed to appear for her hearing on May 7, the immigration
judge ordered her removed to El Salvador in absentia. Miller
says she never received a copy of the judge’s decision and
thus did not know that she had been ordered removed.

    Years passed without any further contact from
immigration officials. In 2011, Miller voluntarily moved to
Canada with her family to seek refugee status there, but the
Canadian government denied her request. In September
2013, Miller unlawfully attempted to reenter the United
States. She was apprehended at the border, and immigration
officials quickly discovered that she had been ordered
removed in May 2004. Miller says this encounter is the first
time she learned of her removal order. DHS immediately
reinstated her May 2004 removal order under § 1231(a)(5).
The government also charged Miller with the criminal offense
8                       MILLER V. SESSIONS

of illegal reentry in violation of 8 U.S.C. § 1326(a), to which
she later pleaded guilty.

    During the reinstatement proceeding, Miller did not
challenge the validity of her May 2004 removal order, but she
did express a fear of returning to El Salvador given the past
abuse she had experienced there. An asylum officer
interviewed Miller, found that she had a reasonable fear of
persecution in El Salvador, and referred her case to an
immigration judge for a hearing to determine whether she
should receive withholding of removal. See 8 C.F.R.
§ 208.31(e). In April 2014, the immigration judge granted
Miller that relief.3

    In July 2014, after her reinstatement and criminal
proceedings had concluded, Miller filed a motion to reopen
seeking to rescind her May 2004 removal order. She sought
rescission of the order so that she could apply for asylum,
which confers a broader set of rights than withholding of
removal does. The immigration judge denied her motion on
the ground that he lacked jurisdiction to consider it, citing
§ 1231(a)(5)’s command that when a prior removal order is
reinstated, the order “is not subject to being reopened or
reviewed.” The Board of Immigration Appeals (BIA)
affirmed the immigration judge’s ruling, and Miller then filed
a petition for review in our court.

    As a threshold matter, the government argues that we lack
jurisdiction to consider whether Miller can seek relief under


    3
        Non-citizens placed in reinstatement proceedings may seek
withholding of removal, but they are not eligible for asylum, which is the
relief Miller seeks here. See 8 C.F.R. § 241.8(e); Perez-Guzman v. Lynch,
835 F.3d 1066, 1070 (9th Cir. 2016).
                     MILLER V. SESSIONS                        9

§ 1229a(b)(5)(C)(ii) because she failed to raise that issue
before the BIA. See 8 U.S.C. § 1252(d)(1); Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). The government
contends that when Miller was before the immigration judge,
she sought relief only under § 1229a(b)(5)(C)(i), which
authorizes the filing of a motion to reopen based on
“exceptional circumstances” rather than on lack of notice.
See n.1 above. But in her brief to the BIA, Miller repeatedly
raised “lack of notice” as one of the grounds for her motion
to reopen, and she argued that the Immigration and
Nationality Act “authorizes a non-citizen ordered removed in
absentia to seek reopening ‘at any time’ if the failure to attend
proceedings was due to lack of notice.” The reference to
statutory authorization to seek reopening “at any time” due to
lack of notice is a specific reference to the relief authorized
under § 1229a(b)(5)(C)(ii). We therefore conclude that
Miller “put the BIA on notice” of the jurisdictional basis for
her motion, such that the BIA “had an opportunity to pass on
this issue.” Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.
2004) (per curiam). This was sufficient to exhaust the issue.
Id.

    Because the issue before us turns on a question of
law—whether § 1231(a)(5) bars immigration judges from
entertaining a motion to reopen under § 1229a(b)(5)(C)(ii)—
we review the BIA’s ruling de novo. See Lezama-Garcia v.
Holder, 666 F.3d 518, 524 (9th Cir. 2011). The BIA’s
decision is unpublished and was issued by a single member,
so it is not entitled to deference under Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), although it is entitled to deference under
Skidmore v. Swift & Co., 323 U.S. 134 (1944), “proportional
to its thoroughness, reasoning, consistency, and ability to
persuade.” Lezama-Garcia, 666 F.3d at 524–25 (internal
10                   MILLER V. SESSIONS

quotation marks omitted). The BIA’s decision contains no
reasoning of any substance on the issue we consider here, so
there is nothing for us to defer to.

    We conclude that the BIA wrongly held that the
immigration judge lacked jurisdiction to consider Miller’s
motion to reopen. We acknowledge at the outset that the
government’s interpretation of § 1231(a)(5) is not foreclosed
by the text of the statute. It’s possible that Congress intended
to bar collateral attacks on a prior removal order whenever
DHS decides to invoke the reinstatement procedure, even if
the prior order was entered in absentia and the non-citizen
received no notice of the earlier hearing. But that reading of
the statute would raise potential due process concerns, at least
in circumstances, like those present in this case, in which the
non-citizen first learns of the prior removal order at the outset
of the reinstatement proceeding. For we have held that due
process challenges to the underlying removal order, even
those predicated on lack of notice, may not be raised in the
reinstatement proceeding itself. Morales-Izquierdo v.
Gonzales, 486 F.3d 484, 496 (9th Cir. 2007) (en banc). Thus,
if we adopted the government’s reading of § 1231(a)(5), a
non-citizen whose due process rights were violated in the
earlier removal proceedings due to lack of notice could have
the resulting removal order reinstated against her without
ever being afforded an opportunity to challenge its legality.

    In Morales-Izquierdo, we interpreted §§ 1231(a)(5) and
1229a(b)(5)(C)(ii) to avoid this constitutional dilemma. See
Clark v. Martinez, 543 U.S. 371, 380–81 (2005). In that
case, the petitioner challenged the constitutionality of
the reinstatement procedure authorized under 8 U.S.C.
§ 1231(a)(5) and 8 C.F.R. § 241.8, arguing, among other
things, that he had not received adequate notice of the hearing
                    MILLER V. SESSIONS                     11

at which his original removal order had been entered in
absentia, and that allowing immigration officers rather than
judges to resolve that issue would violate due process. We
held that the petitioner suffered no prejudice by being denied
access to an immigration judge in the reinstatement
proceeding because he would not have been able to litigate
issues concerning lack of notice in that proceeding anyway.
Citing § 1231(a)(5), we noted that “the reinstatement statute
specifically precludes Morales from seeking to reopen the
previous removal order based on defective service or any
other grounds.” 486 F.3d at 496. But in a footnote
immediately following that statement, we said:

       The [Immigration and Nationality Act] does
       have a procedure an alien may use to reopen
       an in absentia removal order based on a claim
       of lack of notice, see INA § 240(b)(5)(C)(ii),
       8 U.S.C. § 1229a(b)(5)(C)(ii), but Morales has
       failed to avail himself of it.

Id. at 496 n.13. We referred to § 1229a(b)(5)(C)(ii) again
later in the opinion, when we explicitly held that reinstating
a removal order under § 1231(a)(5) “creates no new obstacles
to attacking the validity of the removal order,” and cited as
one example of an avenue of attack that remains open
“8 U.S.C. § 1229a(b)(5)(C)(ii) (allowing reopening of a
removal order based on lack of notice).” 486 F.3d at 498. As
these references to § 1229a(b)(5)(C)(ii) make clear, in
Morales-Izquierdo we construed § 1231(a)(5) as preserving
a non-citizen’s right to file a motion to reopen under
§ 1229a(b)(5)(C)(ii).

   Thus, an individual placed in reinstatement proceedings
under § 1231(a)(5) cannot as a general rule challenge the
12                     MILLER V. SESSIONS

validity of the prior removal order in the reinstatement
proceeding itself.4 But she retains the right, conferred by
§ 1229a(b)(5)(C)(ii), to seek rescission of a removal order
entered in absentia, based on lack of notice, by filing a
motion to reopen “at any time.” See Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam).

    Miller properly invoked § 1229a(b)(5)(C)(ii) as a basis for
seeking rescission of her May 2004 removal order. She
contends that she never received notice of the May 2004
removal hearing, and that the removal order entered against
her in absentia is therefore invalid. If she prevails on that
contention, § 1229a(b)(5)(C)(ii) authorizes the relief she
requests. However, we do not reach any arguments
concerning whether Miller in fact lacked notice of her
removal hearing. Those arguments should be addressed by
the agency in the first instance.

    The BIA erred by holding that § 1231(a)(5) deprived the
immigration court of jurisdiction to resolve Miller’s motion
to reopen. We grant Miller’s petition for review and remand
the case so that the agency can decide Miller’s motion to
reopen on the merits.

  PETITION FOR REVIEW GRANTED; CASE
REMANDED.




     4
       An exception exists for cases involving a “gross miscarriage of
justice.” Garcia de Rincon v. Department of Homeland Security, 539 F.3d
1133, 1138 (9th Cir. 2008).
