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Vega-Anguiano v. Barr

United States Court of Appeals, Ninth Circuit

November 19, 2019

Francisco Javier Vega-Anguiano, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted April 8, 2019 Seattle, Washington

          On Petition for Review of an Order of Immigration and Customs Enforcement Agency No. A075-268-076

          Robert Pauw (argued), Gibbs Houston Pauw, Seattle, Washington, for Petitioner.

          Todd J. Cochran (argued) and Robbin K. Blaya, Trial Attorneys; Daniel E. Goldman, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: William A. Fletcher, Consuelo M. Callahan, and Morgan Christen, Circuit Judges.

         SUMMARY[*]

         Immigration

         Granting Francisco Vega-Anguiano's petition for review of an order of Immigration and Customs Enforcement ("ICE") reinstating his prior order of removal, the panel held that: 1) because Vega-Anguiano timely challenged his reinstatement order, the court had jurisdiction to review that order, including the collateral attack on his underlying removal order; 2) Vega-Anguiano established a miscarriage of justice in his underlying proceedings because the order lacked a valid legal basis when it was executed; and 3) there is no diligence requirement that limits the time during which a collateral attack on a prior order may be made, in reinstatement proceedings, based on a showing of a gross miscarriage of justice.

         In 1998, an Immigration Judge ordered Vega-Anguiano removed based on a conviction for possession of a controlled substance, but the government took no steps to remove him. In 1999, his conviction was expunged under California Penal Code § 1203.4, a rehabilitative statute. As the panel explained, for convictions occurring prior to July 14, 2011, the government may not remove an alien on the basis of a simple drug possession conviction, if the conviction has been expunged under a state rehabilitative statute and the alien satisfies the requirements of the Federal First Offender Act ("FFOA"). The panel noted that the government conceded at oral argument that Vega-Anguiano met all the requirements of the FFOA when his conviction was expunged.

         In 2008, Vega-Anguiano was removed to Mexico pursuant to the 1998 order, but illegally reentered the United States. In 2013, he moved to reopen his 1998 proceedings, but the BIA denied the motion as untimely, and this court denied his petition for review. In 2014, Vega-Anguiano was convicted of "misprison of a felony" related to cock-fighting, and ICE reinstated his prior order of removal. Vega-Anguiano filed a timely petition for review of the reinstatement order.

         The panel explained that the court has jurisdiction to review a reinstatement order, and that some collateral attack is permitted on an underlying removal order, during review of a reinstatement order, if the petitioner can show that he suffered a gross miscarriage of justice in the initial deportation proceeding. However, the government argued that Vega-Anguiano's challenge to his 1998 order was untimely, and that therefore, the court lacked jurisdiction under 8 U.S.C. § 1252(b)(1), which requires a petition for review to be filed within thirty days of a final "order of removal." The panel rejected that argument, holding that it had jurisdiction to review Vega-Anguiano's reinstatement order, including his collateral attack on the 1998 order. The panel explained that "order of removal" in § 1252(b)(1) covers both removal and reinstatement orders such that, in cases where the petitioner seeks review of a reinstatement order, § 1252(b)(1) requires only that the reinstatement order be challenged within thirty days of becoming final. The panel noted that the Third, Fifth, and Tenth Circuits had come to a contrary conclusion.

         Addressing Vega-Anguiano's collateral attack, the panel explained that prior orders of removal are not generally subject to collateral attack in reinstatement proceedings, but that the court retains jurisdiction to review an underlying removal order if the petitioner can show he suffered a gross miscarriage of justice in the underlying proceeding. The panel explained that the BIA has held that a gross miscarriage of justice occurs when a deportation or removal order had no legal basis at the time of its issuance or at the time of its execution. In Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967), the BIA found a gross miscarriage of justice where the decision ordering Farina's deportation could not have withstood judicial attack at the time it was executed. The panel noted that the BIA has continued to apply Farinas, that the Seventh and Third Circuits have followed it, and that this court's case law is consistent with Farinas.

         The panel held that Vega-Anguiano had established a gross miscarriage of justice in his underlying proceeding, explaining that there was no valid legal basis for the removal order at the time it was executed in 2008 because the conviction on which the order had been based had been expunged and, as a result, he met the requirements of the FFOA.

         The panel also concluded that the gross miscarriage of justice standard does not include a diligence component that bars a collateral challenge to a prior order when a reinstatement order is timely challenged on the ground that the prior order, on which the new order is based, in invalid. The panel explained that the controlling BIA decision was Farinas, where the BIA declined to fault Farinas either for his failure to appeal his original deportation order, or for the sixteen-year gap between his deportation and his collateral challenge to that deportation in later proceedings.

         Concurring, Judge Christen agreed that the court had jurisdiction, but wrote separately to emphasize the record in this case, which she concluded necessitated granting the petition. Judge Christen wrote that the government had taken the position that Vega-Anguiano did not submit his expungement order until 2014, but it was established, at oral argument, that counsel did not know what was in Vega-Anguiano's immigration file at the time of the reinstatement decision and that the file would have been incomplete without that order. Further, Judge Christen observed that Vega-Anguiano notified the BIA of the expungement at least by November of 2013, when he filed his motion to reopen. Judge Christen also noted that the immigration records were riddled with errors that signal the agency had incorrect information.

         Dissenting, Judge Callahan wrote that the panel is bound by this court's decision in Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc), in which the court held that reinstatement of a prior removal order-regardless of the process afforded in the underlying order-does not offend due process because reinstatement of a prior order does not change the alien's rights or remedies. It follows, wrote Judge Callahan, that Vega-Anguiano's petition for review from his reinstatement order does not allow the panel to consider challenges to his underlying order. Judge Callahan further observed that the majority of this court's sister circuits are in accord with that position.

         Judge Callahan also wrote that the majority's' reliance on Farinas failed for two reasons. First, it was not true that Vega-Anguiano's order could not have withstood judicial attack under the law at the time of his removal; rather, the expungement of his conviction under a rehabilitative statute did not mean his possession conviction was no longer a conviction under the immigration laws, and the "fact" that he might have been eligible for relief under the FFOA did not make his removal order legally invalid. Second, Judge Callahan concluded that Vega-Anguiano had not made a sufficient showing of injustice, noting that he was arrested and convicted for cocaine possession, his expungement was under a rehabilitative statute, and he was hardly prejudiced by the fact that he was not removed until 2008. Further, Judge Callahan noted that the government's failure to anticipate a request for FFOA relief did not make his 2008 removal a miscarriage of justice, and that there was no injustice in the reinstatement of his order after he illegally reentered the country and was convicted of a misprison of a felony.

          OPINION

          W. FLETCHER, CIRCUIT JUDGE.

         On February 25, 2014, Immigration and Customs Enforcement ("ICE") reinstated Francisco Vega-Anguiano's prior order of removal. Vega-Anguiano filed a timely petition for review of the reinstatement order. Vega-Anguiano challenges the validity of the underlying removal order and argues that the reinstatement proceedings violated the Department of Homeland Security's regulations and his due process rights. We grant the petition.

         I. Jurisdiction

         "We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a reinstatement order . . . and retain jurisdiction under § 1252(a)(2)(D) to consider 'constitutional claims or questions of law raised upon a petition for review.'" Villa-Anguiano v. Holder, 727 F.3d 873, 875 (9th Cir. 2013) (quoting Garcia de Rincon v. DHS, 539 F.3d 1133, 1137-38 (9th Cir. 2008)) (first internal quotation omitted). The jurisdictional savings clause of § 1252(a)(2)(D) "permits some collateral attack on an underlying removal order during review of a reinstatement order if the petitioner can show that he has suffered a 'gross miscarriage of justice' in the initial deportation proceeding." Garcia de Rincon, 539 F.3d at 1138.

         The government argues that we lack jurisdiction over Vega-Anguiano's collateral attack because his attempt to challenge his 1998 removal order is "untimely" under § 1252(b)(1), which requires that a petition for review ordinarily be filed within thirty days of the order becoming final. 8 U.S.C. § 1252(b)(1). Whether Vega-Anguiano's petition is a timely challenge is an issue of first impression in this circuit. See Villa-Anguiano, 727 F.3d at 879 n.4 (acknowledging but declining to address the argument). The Third, Fifth, and Tenth Circuits have held that a federal court lacks jurisdiction to consider a collateral attack on a reinstated order if the petitioner failed to challenge the original order within thirty days of it becoming final. Luna-Garcia de Garcia v. Barr, 921 F.3d 559, 563-65 (5th Cir. 2019); Verde-Rodriguez v. Attorney Gen. U.S., 734 F.3d 198, 203 (3d Cir. 2013); Cord ...


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