Portillo Villalba v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 2024
• Docket: 22-965
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 13 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICTORINO PORTILLO VILLALBA, No. 22-965 Agency No. Petitioner, A039-810-538 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 9, 2024** Pasadena, California

Before: WARDLAW, FRIEDLAND, and SUNG, Circuit Judges.

Petitioner Victorino Portillo Villalba (“Portillo”), a native and citizen of

Mexico, challenges the reinstatement of his prior removal order. “[W]e have

jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to entertain a collateral attack on the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). underlying removal order only in cases of ‘gross miscarriage of justice.’” Lopez v.

Garland, 17 F.4th 1232, 1233 (9th Cir. 2021). Portillo contends that the entry and

execution of his prior removal order was such a gross miscarriage of justice. We

disagree, so we dismiss the petition.1

Portillo’s prior removal order was entered on June 5, 1998. He challenged

that order before the Board of Immigration Appeals (“BIA”), which dismissed his

appeal on the ground that he was ineligible for a waiver of inadmissibility under a

controlling decision by the Attorney General. Although the BIA noted that other

circuits had disagreed with the Attorney General’s decision, Portillo’s case was not

controlled by those circuits’ precedents. He did not petition this court for review

of the BIA’s decision, and he was removed on October 22, 1999.2

In 2021, the Government determined that Portillo had unlawfully reentered

the country and it notified him of its intent to reinstate his prior removal order.3

“When a removal order is legally valid at the time of entry and execution, a

petitioner cannot challenge a reinstatement of that order as a gross miscarriage of

1 The Government initially argued that we lack jurisdiction because Portillo’s petition was not filed within thirty days of entry of a final order of removal under 8 U.S.C. § 1252(b)(1). The Government later withdrew that argument. Our court has now held that the thirty-day deadline is not jurisdictional, Alonso-Juarez v. Garland, 80 F.4th 1039, 1056 (9th Cir. 2023), so we need not address that argument now that the Government has withdrawn it. 2 Portillo’s unopposed motion to supplement the record is granted. 3 The notice of reinstatement gives incorrect dates for both Portillo’s original removal order and his removal. The differences are of no significance here.

2 22-965 justice based on developments that . . . occurred after the petitioner was removed

from this country.” Lopez, 17 F.4th at 1236.

Here, Portillo challenges the reinstatement of his removal order based on a

development that occurred after he was removed from the country: this court’s

decision in Magana-Pizano v. I.N.S., 200 F.3d 603 (9th Cir. 1999), which held that

the Antiterrorism and Effective Death Penalty Act (“AEDPA”) did not

retroactively foreclose discretionary waivers under § 212(c) of the Immigration

and Nationality Act for already-pending removal proceedings. Id. at 611 & n.11

(disagreeing with the Attorney General’s contrary conclusion).4 That decision

occurred after the entry and execution of Portillo’s removal order, so it does not

provide a basis for a “gross miscarriage of justice” challenge. See Lopez, 17 F.4th

at 1236.

In some instances, a judicial ruling might be understood to simply state what

the law has always been. If Magana-Pizano merely articulated what the law was at

the time of Portillo’s original removal, it might not be the sort of “development[]

that . . . occurred after the petitioner was removed from this country” that is

excluded as a basis for collateral attacks under Lopez, 17 F.4th at 1236. But we are

4 Portillo also cites the Supreme Court’s decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001). St. Cyr held that § 212(c) waivers remained available for certain noncitizens “whose convictions were obtained through plea agreements.” Id. at 326. Portillo does not say whether the conviction underlying his removal order was the result of a plea agreement.

3 22-965 bound by prior precedent holding that a “new rule [was] announced in Magana-

Pizano.” Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1173 (9th Cir. 2001).

We explained in Alvarenga-Villalobos that a removal order analogous Portillo’s

“was perfectly lawful under the law at the time [that petitioner] was deported,”

because Magana-Pizano had not yet been decided. Id.

Alvarenga-Villalobos is not contrary to our decision in United States v.

Leon-Paz, 340 F.3d 1003 (9th Cir. 2003). In that case, an immigration judge (“IJ”)

had advised Leon-Paz that he was ineligible for relief. Id. at 1004. When he was

later charged with illegal reentry and challenged his original removal order, we

concluded that the IJ had erred because Leon-Paz “was entitled to be considered

for § 212(c) relief” in light of the Supreme Court’s later decision in St. Cyr. Id. at

1007. That language could be interpreted to say that St. Cyr (and, by analogy,

Magana-Pizano) merely stated what the law had always been. But we have since

characterized Leon-Paz as a “narrow exception” to the principle that IJs “need not

anticipate future change[s] in law” when advising a noncitizen of his or her

“apparent eligibility for relief from removal.” United States v. Vidal-Mendoza,

705 F.3d 1012, 1017 (9th Cir. 2013) (alteration in original) (quotation marks

omitted). In any event, we had no occasion in Leon-Paz to characterize St. Cyr one

way or the other. We held that the IJ erred in advising Leon-Paz because there was

a “reasonable possibility” that Leon-Paz could prevail on appeal, given that the

4 22-965 Attorney General’s determination regarding AEDPA’s retroactivity would be

entitled to no deference. Id. at 1018 & n.6 (quotation marks omitted) (citing

Ledezma-Galicia v. Holder, 636 F.3d 1059, 1067 (9th Cir. 2010) (explaining lack

of deference)). Whether there is a possibility that a noncitizen might be eligible for

relief on direct appeal is a different question than whether a future interpretation of

a law is “deemed to establish ‘what the meaning of the law always was’ in some

theoretical way.” Id. at 1018-19. Leon-Paz therefore does not contradict

Alvarenga-Villalobos’s holding that Magana-Pizano represented a change in the

law. Accordingly, Portillo has not shown a gross miscarriage of justice.

DISMISSED.5

5 The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal is otherwise denied.

5 22-965