Vega-Anguiano v. Barr

• Decision Date: 19 November 2019
• Docket Number: No. 15-72999,15-72999
• Citation: 942 F.3d 945
• Parties: Francisco Javier VEGA-ANGUIANO, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

942 F.3d 945

Francisco Javier VEGA-ANGUIANO, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 15-72999

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2019 Seattle, Washington

Filed November 19, 2019

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) ; Cordova-Soto v. Holder , 659 F.3d 1029, 1031–32 (10th Cir. 2011). We disagree with this understanding of the relationship between the thirty-day limit of § 1252(b)(1) and the jurisdictional savings clause of § 1252(a)(2)(D).

We agree with the government that § 1252(b)(1) constrains § 1252(a)(2)(D). See § 1252(a)(2)(D) (explicitly exempting provisions in "this section," including § 1252(b)(1), from the scope of the savings clause). But we understand the nature of that constraint differently from our sister circuits. Section 1252(b)(1) provides, "The petition for review must be filed not later than thirty days after the date of the final order of removal." In Castro-Cortez v. INS , we interpreted a related jurisdictional provision in § 1252(a)(1), which authorizes review of "order[s] of removal."

239 F.3d 1037, 1044 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales , 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). We held that the phrase "order of removal" in § 1252(a)(1) covers both removal and reinstatement orders. Id . We now read "order of removal" in § 1252(b)(1) the same way. Accordingly, in cases in which the petitioner is seeking review of a reinstatement order, we read § 1252(b)(1) as requiring only that the reinstatement order be challenged within thirty days of becoming final. Vega-Anguiano timely filed a petition for review of his reinstatement order. Thus, we have jurisdiction under § 1252(a)(1) and § 1252(a)(2)(D) to review Vega-Anguiano’s reinstatement order, including his collateral attack on the underlying removal order.

II. Factual Background

In 1988, when Vega-Anguiano was fourteen years old, he was arrested for "possession of a controlled substance, to-wit: Cocaine" in violation of California Health and Safety Code § 11350. The arrest did not result in a conviction, but Vega-Anguiano was required to attend drug classes. In 1991, Vega-Anguiano was stopped for driving without a license. When a record check revealed that he had not completed the drug classes, he was placed back into criminal proceedings on the 1988 possession charge. On September 19, 1991, Vega-Anguiano pleaded guilty to the by-then three-year-old possession charge. This was Vega-Anguiano’s only conviction prior to his removal.

After his release from incarceration on the possession conviction, Vega-Anguiano married his girlfriend, who was a lawful permanent resident. He and his wife attempted to legalize his status. Vega-Anguiano’s Application for Adjustment of Status was denied because of his 1991 conviction, and he was placed in removal proceedings. In December 1998, an Immigration Judge ordered Vega-Anguiano removed based on INA § 212(a)(2)(A)(i)(II) (conviction of a controlled substance violation). Vega-Anguiano’s attorney failed to timely file an appeal to the Board of Immigration Appeals ("BIA"). The former Immigration and Naturalization Service ("INS") took no steps to remove Vega-Anguiano.

In September 1999, while he was still in this country, Vega-Anguiano’s 1991 conviction was expunged under California Penal Code § 1203.4, a rehabilitative statute. 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 has satisfied the requirements of the Federal First Offender Act. See Nunez-Reyes v. Holder , 646 F.3d 684 (9th Cir. 2011) ; Lujan-Armendariz v. INS , 222 F.3d 728, 749–50 (9th Cir. 2000).¹ To qualify for this exception to removability, the alien must show that "(1) the conviction was his first offense; (2) he had not previously been accorded first offender treatment; (3) his conviction was for possession of drugs, or an equivalent or lesser charge such as possession of drug paraphernalia ... and (4) he received relief under a state rehabilitative statute."

Ramirez-Altamirano v. Holder , 563 F.3d 800, 812 (9th Cir. 2009) (internal quotation omitted). The government conceded at oral argument that Vega-Anguiano met all four criteria as soon as his conviction was expunged in 1999. His 1991 conviction was his first offense; he had not been previously accorded first offender treatment; his conviction was for simple possession; and he received relief under a rehabilitative statute. The expungement of Vega-Anguino’s 1991 conviction thus removed the legal basis for his 1998 removal order. Wiedersperg v. INS , 896 F.2d 1179, 1182 (9th Cir. 1990) ("[T]he nullification of a conviction upon which deportability is premised deprives deportation of a legal basis.").

ICE nonetheless arrested Vega-Anguiano in January 2008. His attorney failed to file a motion to reopen, and Vega-Anguiano was removed to Mexico in February 2008 pursuant to the no-longer-valid 1998 removal order. Several weeks later, he illegally reentered the United States.

In November 2013, Vega-Anguiano filed with the BIA a motion to reopen his 1998 proceeding. He explained in the motion that his 1991 conviction had been expunged. He argued for equitable tolling of the filing deadline based on his attorneys’ ineffective assistance of counsel in 2008. The BIA denied as untimely the motion to reopen. Vega-Anguiano filed a petition for review of the BIA’s denial in this court. We held that the BIA did not abuse its discretion in finding that Vega-Anguiano had failed to act with the diligence required for equitable tolling.

On January 28, 2014, Vega-Anguiano was convicted of "misprision of a felony," in violation of 18 U.S.C. § 4, and was sentenced to five-and-a-half months imprisonment. "Misprision of a felony" is committed when a defendant has full knowledge of the fact that the principal committed and completed a felony, but the defendant failed to notify the authorities and took an affirmative step to conceal the crime. See United States v. Ciambrone , 750 F.2d 1416, 1417 (9th Cir. 1984) ; see also 18 U.S.C. § 4. The felony at issue related to cock-fighting.

In February 2014, ICE notified Vega-Anguiano that it intended to reinstate his December 1998 removal order. While in ICE custody, Vega-Anguiano "refused to answer any questions or sign any documents without the presence of an attorney." ICE reinstated the prior order of removal. Vega-Anguiano filed with this court a timely petition for review of the reinstatement order. In his petition, Vega-Anguiano collaterally attacks his original removal order. He also argues that ICE violated its own regulations and his due process rights during the reinstatement proceeding.

III. Discussion

There are strict limitations on collateral attacks on prior removal orders. Collateral attack is largely reserved for cases in which the removal order could not have withstood judicial scrutiny under the law in effect at the time of either its issuance or its execution. See, e.g. , Matter of Farinas , 12 I. & N. Dec. 467 (BIA 1967). There was no valid legal basis for Vega-Anguiano’s removal order at the time of its execution in 2008 because the conviction on which it had been based had been expunged in 1999. This is therefore one of the rare cases where a collateral attack is appropriate.

The rule that prior removal orders are not generally subject to collateral attack is codified at 8 U.S.C. § 1231(a)(5) : If "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."

8 U.S.C. § 1231(a)(5). However, under § 1252(a)(2)(D), we retain jurisdiction to review an underlying removal...