Vega-Anguiano v. Barr

• Decision Date: 19 November 2019
• Docket Number: No. 15-72999,15-72999
• Citation: 982 F.3d 542
• Parties: Francisco Javier VEGA-ANGUIANO, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

982 F.3d 542

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

Amended November 24, 2020

ORDER AND AMENDED OPINION

W. FLETCHER, Circuit Judge:

ORDER

The opinion, concurrence, and dissent filed November 19, 2019, and published at 942 F.3d 945 are amended by the opinion, concurrence, and dissent filed concurrently with this order.

With this amendment, Judges W. Fletcher and Christen have voted to deny respondent's petition for rehearing en banc (Dkt. Entry 57). Judge Callahan has voted to grant the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(f).

The petition for rehearing en banc is DENIED . No further petitions for panel rehearing or rehearing en banc may be filed.

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. He challenges the reinstatement order, contending that the removal order was invalid when executed. The conviction upon which that the removal order depended was expunged before he was removed. The government conceded at oral argument that the expungement removed the legal justification for the removal order. Vega-Anguiano thus maintains that the execution of the removal order resulted in a "gross miscarriage of justice," and that he may therefore collaterally challenge the removal order as part of his timely challenge to the reinstatement order. We agree and 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 contends that we lack jurisdiction over Vega-Anguiano's collateral attack under § 1252(a)(1) because, in its view, his collateral attack on his removal order is untimely. We disagree.

A petition for review filed under § 1252(b)(1) triggers judicial review and the exercise of jurisdiction under § 1252(a)(1). Because Vega-Anguiano filed his petition for review of his reinstatement order under § 1252(b)(1), he may bring any collateral attack authorized by § 1252(a)(1).

We know from Villa-Anguiano and Garcia de Rincon that § 1252(a)(1) authorizes judicial review of reinstatement orders. We also know that § 1252(b)(1) establishes the time limit for bringing a challenge under § 1252(a)(1). The question is whether § 1252(b)(1) establishes the time limit not only for challenging final orders of removal, but also for challenging final reinstatement orders. The answer is "yes." The phrase "final order of removal" in § 1252(b)(1) refers to both a final order of removal and a final reinstatement order.

Section 1252(a)(1) authorizes "[j]udicial review of a final order of removal." We have repeatedly held, beginning with Castro-Cortez v. INS , 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), that the phrase "final order of removal" in § 1252(a)(1) covers both a final removal order and a final reinstatement order. 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." The natural, indeed inescapable, reading of these immediately adjoining statutory sections is that phrase "final order of removal" in § 1252(b)(1) has the same meaning as the identical phrase in § 1252(a)(1).

There is no other statute that establishes a time limit for seeking judicial review of a reinstatement order. It is inconceivable that no statute establishes that time limit, and it has been widely and appropriately assumed that § 1252(b)(1) establishes the time limit for seeking review of reinstatement orders. See , e.g. , Ortiz-Alfaro v. Holder , 694 F.3d 955, 958 (9th Cir. 2012). Today, we hold rather than merely assume that this is, in fact, the law.

Vega-Anguiano timely petitioned for review of his reinstatement order under § 1252(b)(1). We therefore have jurisdiction over his petition under § 1252(a)(1). In the exercise of that jurisdiction, we may consider any collateral attack authorized under § 1252(a)(2)(D). See Villa-Anguiano v. Holder , 727 F.3d at 875. Specifically, as we wrote in Garcia de Rincon, we have jurisdiction under § 1252(a)(1) to consider a collateral attack in which a petitioner contends that the execution of his invalid removal order resulted in a "gross miscarriage of justice."

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 (and is now a U.S. citizen). Soon thereafter, 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 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) (quotation marks and citations 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-Anguiano'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 a motion to reopen his 1998 proceeding. He explained in the motion that his 1991 conviction had been expunged in 1999. He argued for equitable tolling 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 2014, ICE reinstated Vega-Anguiano's 1998 removal order. Vega-Anguiano timely filed a petition for review of the reinstatement order. In his petition,...