at any time reopen or reconsider a case in which it has rendered a decision on its
own motion solely in order to correct a ministerial mistake or typographical error
in that decision or to reissue the decision to correct a defect in service.” 8 C.F.R.
§ 1003.2(a)(1) (2021). The amended regulations impose the same limitations on the IJ. 8 C.F.R. § 1003.23(b)(1) (2021). As previously stated, see supra n. 5, these
provisions have been stayed and preliminarily enjoined.>
On slip opinion page 17, replace <8 C.F.R. § 1003.2(c)(3)> with <8 C.F.R.
§ 1003.2(c)(3) (2020)>.
The respondent’s motion to amend (Dkt. 50) is hereby granted in part and
denied in part.
The time to file a petition for rehearing or petition for rehearing en banc is
not extended by this amendment. The petition for rehearing or petition for
rehearing en banc is due on or before December 14, 2022. OPINION
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.
I
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.
2 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, 138 S. Ct. 2105 (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
3 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
1 The printout stated, in pertinent part:
Violation of Section 243(E)(1) PC. The Court finds the defendant guilty. Count (02): Disposition: Convicted Court finds that there is a factual basis for defendant’s plea, and Court accepts plea. Defense motion to withdraw plea as to Count 1 is granted. Both parties stipulate, that if on 7/10/1997, the defense attorney would ha[ve] counter offered for a Count 2 243(E)(1), the district attorney would ha[ve] agreed to counter offer, as it reflects in the court reporter’s official notes. The court orders the date of 11/30/18, vacated.
4 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
2 The BIA also ruled that Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), foreclosed Perez-Camacho’s argument that a notice to appeal that fails to specify the time or place of removal proceedings deprives the IJ of jurisdiction. Because Perez-Camacho failed to raise any argument challenging this ruling in his brief on appeal, the issue is deemed waived. See Cui v. Garland, 13 F.4th 991, 999 n.6 (9th Cir. 2021). 5 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.
II
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.
A
3 In the alternative, the BIA held that even assuming Perez-Camacho’s motion was timely filed and numerically authorized, it was not grounds for reopening. Citing to Matter of Chavez-Martinez, 24 I. & N. Dec. 272 (BIA 2007), the BIA stated that Perez-Camacho had failed to prove that his 1997 conviction was not vacated solely for immigration purposes. Further, the BIA observed that the state court printout did not show that the state court modified Perez-Camacho’s 1997 conviction “in order to correct a substantive or constitutional defect in the original judgment or for any other reason unrelated to the amelioration of immigration hardships.” Therefore, the BIA reasoned, the minutes from the state court proceedings were “not tantamount to a judicial determination that defense counsel provided ineffective assistance by ‘failing’ to offer such a plea or that the original conviction under Cal. Penal Code § 273.5 was somehow inconsistent with the evidence.” 6 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 (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).
B
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
4 Under the Immigration and Nationality Act (INA), “[a]n alien may file one motion to reopen proceedings” with exceptions not applicable here, and must file it “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(A) and (C)(i). 7 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)5; 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.6
5 At the time the agency ruled in this case, the applicable regulation was 8 C.F.R. § 1003.2(c) (2020). The regulation was amended effective January 2021, see 85 FR 81588-01, but the amendment has been stayed and preliminarily enjoined. See Cath. Legal Immigr. Network, Inc. v. Exec. Office for Immigr. Rev., No. 21-00094, 2021 WL 3609986, at *1 (D.D.C. Apr. 4, 2021); Centro Legal de la Raza v. Exec. Office for Immigr. Rev., 524 F. Supp. 3d 919, 928 (N.D. Cal. 2021). We do not express a view on the current status of the regulation or the impact of the stays and injunction. 6 If a conviction is vacated “for reasons ‘unrelated to the merits of the underlying criminal proceedings’” it remains a conviction in removal proceedings. Poblete Mendoza, 606 F.3d at 1141 (quoting Nath, 467 F.3d at 1189). For example, the reclassification of a conviction for rehabilitative purposes, rather than substantive purposes, does not affect removability or eligibility for relief. Prado v. Barr, 949 F.3d 438, 441 (9th Cir. 2020). 8 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. § 3.2.7 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
7 8 U.S.C. § 1005a(c) provided in part:
An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order.
8 C.F.R. § 3.2 provided in part:
A motion to reopen or a motion to reconsider shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States. 9 alien’s motion to reopen. Id. (citation omitted).8 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 1189.9
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
8 Section 1105a was repealed in 1996, but the departure bar was retained in 8 C.F.R § 1003.2(d), which provides in full:
Departure, deportation, or removal. A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion. 9 Because Wiedersperg was decided before the regulatory time-and-number bar went into effect, its statement that the alien in that case was not barred from raising his claims despite the multi-year delay in filing his motion to reopen, see Wiedersperg, 896 F.2d at 1181, does not excuse an alien from the current regulations’ timing requirements. See Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18,900 (April 29, 1996) (the final agency rule establishing the time limit for motions to reopen). 10 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).10 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 gross miscarriage
of justice if the conviction on which the removal order was based is invalid
because of a merits-based defect. See Vega-Anguiano, 982 F.3d at 549. In this
sort of challenge to a reinstatement proceeding or order, “there is no diligence
requirement that limits the time during which a collateral attack on the deportation
10 8 U.S.C. § 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. 11 or removal order may be made based on a showing of gross miscarriage of justice.”
Id. If the court determines there was a gross miscarriage of justice, the removal
order cannot be reinstated, although the alien may be subject to a new order of
removal. Id. at 551.
Third, even if an alien brings a motion to reopen that is time- or number-
barred, the BIA may consider the alien’s challenge to a removal order based on the
invalidity of an underlying conviction in certain circumstances.
As a general rule, “[a]n alien may file one motion to reopen proceedings”
and must file it “within 90 days of the date of entry of a final administrative order
of removal.” 8 U.S.C. § 1229a(c)(7)(A) and (C)(i). The regulations provide
several exceptions to this number and time bar. See 8 C.F.R. § 1003.2(c)(3)
12 (2020). There is no exception for claims that an alien’s removal order was based
on an invalid conviction, and thus constitutes a gross miscarriage of justice.11
Nevertheless, an alien can secure review of a motion to reopen that would
otherwise be time- and number-barred if the deadline is subject to equitable tolling.
See Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir. 2015). Equitable
tolling may be available “when a petitioner is prevented from filing because of
deception, fraud, or error,” which includes receiving ineffective assistance of
11 At the time the agency ruled in this case, the applicable regulation provided four exceptions. See 8 C.F.R. § 1003.2(c)(3) (2020). The regulation was amended effective January 2021, see 85 FR 81588-01, to provide additional exceptions, including one for a time- and number-barred motion to reopen:
For which a three-member panel of the Board agrees that reopening is warranted when the following circumstances are present, provided that a respondent may file only one motion to reopen pursuant to this paragraph (c)(3):
(A) A material change in fact or law underlying a removability ground or grounds specified in section 212 [8 U.S.C. § 1182, grounds of inadmissibility] or 237 [8 U.S.C. § 1227, grounds of deportability] that occurred after the entry of an administratively final order that vitiates all grounds of removability applicable to the alien; and
(B) The movant exercised diligence in pursuing the motion to reopen.
8 C.F.R. § 1003.2(c)(3)(v) (2021). We have not yet addressed the question whether the vacatur or modification of a conviction underlying a removal order may constitute a “material change in fact or law” for purposes of this exception. As previously stated, see supra n.5, this provision has been stayed and preliminarily enjoined. 13 counsel, “as long as the petitioner acts with due diligence in discovering the
deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).
The party invoking equitable tolling must have been prevented from obtaining
“vital information bearing on the existence of the claim” despite the exercise of
“all due diligence,” Luna v. Holder, 659 F.3d 753, 759 (9th Cir. 2011) (cleaned
up), or “[t]he party’s ignorance of the necessary information must have been
caused by circumstances beyond the party’s control,” Valeriano v. Gonzales, 474
F.3d 669, 673 (9th Cir.2007) (internal quotation marks and citation omitted). In
this context, a determination of an alien’s diligence is case-specific, and turns on
“the reasonableness of petitioner’s actions in the context of his or her particular
circumstances.” Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir. 2016) (citation
omitted).
In determining whether an alien exercised due diligence in alleging
ineffective assistance of counsel, we consider when a reasonable person in the
alien’s position “would suspect the specific fraud or error underlying her motion to
reopen.” Id. (quoting Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)). We
also consider whether the alien “took reasonable steps to investigate the
[attorney’s] suspected fraud or error” or, if the alien was “ignorant of counsel’s
shortcomings,” whether the alien “made reasonable efforts to pursue relief.” Id.
14 (quoting Avagyan, 646 F.3d at 679). We have held that an alien satisfied the
diligence requirement when she moved to reopen proceedings, on the ground of
ineffective assistance of counsel, less than one month after she learned of her
counsel’s failures. See Sun, 555 F.3d at 806. By contrast, we have affirmed the
agency’s denial of tolling where an alien who waited six years to negate his
deportation order based on alleged ineffective assistance of counsel failed to
establish that he made “reasonable efforts to pursue relief” during the “exceedingly
long” six-year delay. Bonilla, 840 F.3d at 583.
Finally, when the agency ruled in this case, the applicable regulations
provided that the BIA could at any time reopen proceedings sua sponte. See 8
C.F.R. § 1003.2(a) (2020).12 To obtain such relief, the BIA “must be persuaded
that the respondent’s situation is truly exceptional.” Bonilla, 840 F.3d at 585
(internal quotation marks and citation omitted). We generally lack jurisdiction to
review decisions denying sua sponte reopening. Menendez-Gonzalez v. Barr, 929
12 After January 15, 2021, the amended regulations provide that the BIA “may at any time reopen or reconsider a case in which it has rendered a decision on its own motion solely in order to correct a ministerial mistake or typographical error in that decision or to reissue the decision to correct a defect in service.” 8 C.F.R. § 1003.2(a) (2021). The amended regulations impose the same limitations on the IJ. 8 C.F.R. § 1003.23(b)(1) (2021). As previously stated, see supra n. 5, these provisions have been stayed and preliminarily enjoined. 15 F.3d 1113, 1117 (9th Cir. 2019). We may, however, exercise discretion “for the
limited purpose of reviewing the reasoning behind the decisions for legal or
constitutional error.” Bonilla, 840 F.3d at 588.
III
We now consider Perez-Camacho’s argument that the BIA erred in not
granting his second motion to reopen. We conclude that none of the circumstances
in which an alien may challenge a removal order based on the claim that a
conviction underlying a removal order is invalid are applicable here.
First, the BIA’s authority to consider a challenge to a removal order when
the alien brings a motion to reopen that is not time- or number-barred, see supra
Section II.B.1; see also Cardoso-Tlaseca, 460 F.3d at 1104–05, 1107, is not
implicated here. Perez Camacho filed his first motion to reopen in 2005, and the
second motion to reopen was filed 13 years after the entry of his final order of
removal.
Next, because Perez-Camacho is challenging his original removal order, he
cannot raise arguments that are available for an alien who is challenging a
reinstatement proceeding or reinstatement order. See supra Section II.B.2. An
alien in that situation may make a collateral challenge to a removal order based on
legal or constitutional grounds, and would not be required to show due diligence,
16 see Vega-Anguiano v. Barr, 982 F.3d at 545, but Perez-Camacho’s situation is
different because his removal order has not been reinstated and his challenge to his
removal order is subject to a regulatory number and time bar.13 Perez-Camacho
did not argue to the BIA that his motion meets any exception to that bar under 8
C.F.R. § 1003.2(c)(3) (2020), and any such argument is unexhausted. Therefore,
the BIA did not err in denying Perez-Camacho’s motion to reopen as time- and
number-barred and we lack jurisdiction to consider any argument regarding this
unexhausted claim, see 8 U.S.C. § 1252(d)(1); Amaya v. Garland, 15 F.4th 976,
986 (9th Cir. 2021).
We also reject Perez-Camacho’s argument that equitable tolling was
applicable to his motion to reopen because he filed a supplement to his motion with
evidence of his modified conviction within days after the state court’s modification
order. The BIA denied Perez-Camacho’s argument for equitable tolling because he
failed to explain how he was prevented from discovering the ineffective assistance
of defense counsel. See Iturribarria, 321 F.3d at 897. We have held that an
agency does not err by denying equitable tolling when the alien failed to raise a
13 Because Weidersperg was decided before the INA imposed the existing time and number bar on motions to reopen, our determination that the alien in that case was not barred from raising a motion to reopen despite the long delay, 896 F.2d at 1181, is not implicated here. 17 motion to reopen for six years without a reasonable explanation. See Bonilla, 840
F.3d at 580. Here, Perez-Camacho waited 21 years (13 of which occurred after his
final order of removal was rendered) to seek modification of his conviction in state
court based on the defense counsel’s alleged ineffective representation in 1997, and
Perez-Camacho provided no basis as to his “reasonable efforts to pursue relief”
during the 21-year period, nor provided any explanation for such an “exceedingly
long” delay. Id. at 583. Therefore, the BIA did not abuse its discretion in
concluding that equitable tolling was not available.
Finally, we lack jurisdiction to consider whether the BIA erred in denying
Perez-Camacho’s request to sua sponte reopen proceedings, because the BIA
committed no legal or constitutional error in determining that the 1997 conviction
was not vacated due to a merits-based defect. See Menendez-Gonzalez, 929 F.3d at
1116.
DENIED IN PART, DISMISSED IN PART.