Perez-Camacho v. Garland

Decision Date01 August 2022
Docket Number19-72063
Citation42 F.4th 1103
Parties Luis PEREZ-CAMACHO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Douglas Jalaie (argued), Los Angeles, California, for Petitioner.

Rachel L. Browning (argued), Trial Attorney; Keith I. McManus, Assistant Director; Ethan P. Davis, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Sandra S. Ikuta, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges.

IKUTA, Circuit Judge:

There are various circumstances in which an alien may challenge a removal order on the ground that the conviction underlying the removal order was subsequently vacated (or modified) due to a procedural or substantive error. For instance, an alien may raise such a challenge in a timely motion to reopen, in a challenge to a reinstatement order or proceeding, or in an untimely motion to reopen if it is eligible for equitable tolling. Because the alien in this case brought a time-and number-barred motion to reopen that is not subject to equitable tolling, the Board of Immigration Appeals (BIA) did not err in denying his challenge to the removal order on the ground that the underlying conviction was allegedly invalid.


Luis Perez-Camacho, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident in 1985. In 1997, Perez-Camacho pleaded guilty to one count of inflicting corporal injury on a spouse in violation of section 273.5(a) of the California Penal Code. The Department of Homeland Security (DHS) served Perez-Camacho with a notice to appear (NTA), charging him with being removable under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien "convicted of a crime of domestic violence" after admission.

Perez-Camacho's removal hearing had been scheduled for April 2005, but was rescheduled to June 1, 2005. Perez-Camacho failed to appear and was ordered removed in absentia. In August 2005, Perez-Camacho filed a motion to reopen, which was denied.

In September 2018, Perez-Camacho filed a second motion to reopen. Perez-Camacho claimed the immigration judge (IJ) lacked jurisdiction over his case under Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), because his 2005 notice to appear did not contain the date or time of his hearing. Perez-Camacho also claimed that the decision in Pereira constituted an extraordinary circumstance that prevented him from timely filing a motion to reopen, despite his reasonable diligence. Therefore, he requested equitable tolling of the motion to reopen deadline. In the alternative, he requested that the BIA sua sponte reopen his removal proceedings.

While his second motion to reopen was pending, Perez-Camacho submitted a supplemental brief to the BIA which claimed that he was no longer removable as charged in 2005 because a state court had modified his 1997 conviction due to a "constitutional defect" in the criminal proceedings. In support of this argument, Perez-Camacho attached a computer printout of state court minutes, dated November 2, 2018.1 According to Perez-Camacho, the state court amended the original complaint against Perez-Camacho to add a second count, the offense of domestic battery under section 243(e)(1) of the California Penal Code. The court then dismissed Count 1 (the original violation of section 273.5(a), inflicting corporal injury on a spouse), and accepted Perez-Camacho's plea of no contest to Count 2. The state court took this action based on a stipulation by the parties that the district attorney would have accepted a guilty plea to domestic battery under section 243(e)(1) in 1997 if defense counsel had offered it. In his supplemental brief, Perez-Camacho argued that the stipulation established that his defense counsel rendered ineffective assistance resulting in a conviction for violating section 273.5(a), which made him removable under 8 U.S.C. § 1227(a)(2)(E)(i). In Perez-Camacho's view, absent defense counsel's ineffective assistance, he would have been convicted of violating section 243(e)(1), which is not a removable offense. Because the state court's action was based on a constitutional defect, according to Perez-Camacho, his removal order was invalid. Therefore, he argued, the BIA should apply principles of equitable tolling to reopen proceedings, set aside the removal order based on the now-modified 1997 conviction, and terminate proceedings.

The BIA denied the motion. The BIA first held that the motion to reopen was both number-barred (because Perez-Camacho had previously filed a motion to reopen in 2005) and time-barred (because it was filed more than 13 years after the entry of his final order of removal).2 The BIA next held that the modification of the 1997 conviction did not justify equitable tolling of the deadline for motions to reopen, because the modification occurred more than 13 years after the deadline expired and Perez-Camacho failed to explain why he waited 21 years after his 1997 conviction to apply for the modification. The BIA also held that the 2018 modification did not constitute an exceptional situation that would warrant sua sponte reopening.3

Perez-Camacho timely petitioned for review of the BIA's decision. We have jurisdiction under 8 U.S.C. § 1252.


On appeal, Perez-Camacho argues that the conviction underlying his removal order is no longer a removable offense, and therefore his second motion to reopen should have been granted under a "gross miscarriage of justice" exception. Alternatively, Perez-Camacho argues that he was entitled to equitable tolling of the deadline for bringing his second motion to reopen, and that the BIA erred in denying sua sponte reopening.


We generally have jurisdiction over the BIA's denial of a motion to reopen, 28 U.S.C. § 1252(a), Kucana v. Holder , 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010), which includes review of the BIA's determination that an "alien has failed to provide a sufficient justification for an untimely motion" to reopen, Sun v. Mukasey , 555 F.3d 802, 805 (9th Cir. 2009). We review the agency's denial of a motion to reopen for abuse of discretion, Sharma v. INS , 89 F.3d 545, 547 (9th Cir. 1996), and reverse only if the decision was "arbitrary, irrational, or contrary to law," Silva v. Garland , 993 F.3d 705, 718 (9th Cir. 2021). The agency's findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B) ; see also Kin v. Holder , 595 F.3d 1050, 1054 (9th Cir. 2010).


An alien may challenge a removal order on the ground that the conviction underlying that order had been vacated in several different circumstances.

First, when an alien brings a motion to reopen that is neither time nor number-barred,4 and challenges a removal order on the ground that it is based on a prior conviction that has been vacated or modified, the BIA may consider whether this claim demonstrates the alien's eligibility for relief. 8 U.S.C. § 1229a(c)(7) ; 8 C.F.R. § 1003.2(c) ; Cardoso-Tlaseca v. Gonzales , 460 F.3d 1102, 1104–05, 1107 (9th Cir. 2006). If the conviction was vacated or modified "because of a procedural or substantive defect in the criminal proceedings," Poblete Mendoza v. Holder , 606 F.3d 1137, 1141 (9th Cir. 2010), it "is not considered a conviction for immigration purposes and cannot serve as the basis for removability," Nath v. Gonzales , 467 F.3d 1185, 1189 (9th Cir. 2006) (internal quotation marks and citation omitted). This may lead the BIA to grant the alien's motion to reopen the immigration proceedings.5

In this context, we have considered the effect of an invalid conviction on the so-called "departure bar" to an alien's ability to challenge a removal order. Before 1996, the INA precluded the BIA from reviewing a challenge to a removal order brought by an alien who had been removed from the United States. See 8 U.S.C. § 1105a(c) (2020) ; 8 C.F.R. § 3.2.6 We held that, if an alien's removal order was based on an invalid conviction, the departure bar did not apply because the alien's departure had not been "legally executed." Wiedersperg v. I.N.S. , 896 F.2d 1179, 1182 (9th Cir. 1990). Therefore, where a conviction that constituted a "key part of the government's case in the deportation proceeding" was later invalidated because of a procedural or substantive defect, the BIA had jurisdiction to consider an alien's motion to reopen. Id. (citation omitted).7 After the statutory departure bar was repealed in 1996, we have applied this rule to timely motions to reopen by removed aliens, see Reyes-Torres v. Holder , 645 F.3d 1073, 1075 (9th Cir. 2011) ; Cardoso-Tlaseca , 460 F.3d at 1104–05, 1106–07 ; Nath , 467 F.3d at 1189.8

Second, an alien may prevail on a claim that a conviction underlying a removal order is invalid and no longer provides a basis for removal in a challenge to a reinstatement proceeding or order. If an alien has been removed from the country and reenters illegally, and an immigration officer reinstates the alien's prior order of removal, the alien may not file a motion to reopen the prior removal proceedings. See 8 U.S.C. § 1231(a)(5).9 Nevertheless, the alien may challenge the reinstatement proceeding itself (or the reinstatement order) on legal or constitutional grounds. See Vega-Anguiano v. Barr , 982 F.3d 542, 547 (9th Cir. 2019) ; Garcia de Rincon v. Dep't of Homeland Security , 539 F.3d 1133, 1137 (9th Cir. 2008). In a challenge to a reinstatement proceeding or order, the alien may make a "collateral attack on the underlying removal order," if "the petitioner can show that he has suffered a ‘gross miscarriage of justice’ " in the initial removal proceedings. Cuenca v. Barr , 956 F.3d 1079, 1087 (9th Cir. 2020) (quoting Garcia de Rincon , 539 F.3d at 1138 ). An alien may show such a...

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    ...rule applies only to timely motions to reopen; the rule does not excuse a late filing. Perez-Camacho v. Garland , 42 F.4th 1103, 1108–09, 1109 n.8, 1111 & n.12 (9th Cir. 2022). We are bound by Perez-Camacho . Miller v. Gammie , 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).Even if we were......
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    ...does not excuse a late filing. Perez-Camacho v. Garland, 42 F.4th 1103, 1108-09, 1109 n.8, 1111 &n.12 (9th Cir. 2022). We are bound by Perez-Camacho. Miller Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). Even if we were not bound, we would reach the same conclusion. Perez-Camacho'......
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    • January 23, 2023
    ... ... of the time and number bars was warranted due to a change in ... law that made him newly eligible to apply for cancellation of ... removal. The time and number bars applicable to motions to ... reopen and reconsider are subject to equitable tolling ... Perez-Camacho v. Garland, 42 F.4th 1103, 1110 (9th ... Cir. 2022) (a noncitizen "can secure review of a motion ... to reopen that would otherwise be time-and number-barred if ... the deadline is subject to equitable tolling"). For ... equitable tolling to apply, a petitioner must show ... ...
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