Tomas Alejandro Mendez-Alcaraz v. Alberto R. Gonzales, Attorney General

464 F.3d 842, 2006 WL 2796499

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 2, 2006
• Docket: 04-74268
• Status: Published

Opinions

KLEINFELD, Circuit Judge:

The BIA correctly dismissed as untimely Mendez-Alearaz’s motion to reconsider.

Facts

Mendez-Alcaraz, an alien with lawful permanent residence status, pleaded guilty in 1996 to sexual abuse of a minor.¹ He was sentenced to 75 months in prison and 120 months of “post-prison supervision.” He spent three years in a juvenile detention facility and another three in a state prison. When his imprisonment for sexual abuse of a minor ended, the INS took Mendez-Alcaraz into its custody and sought removal based on the conviction.² Mendez-Alcaraz conceded removability, designated Mexico as the country to which he would be removed, and stated that he wished to apply for waiver of deportation. He was 16 when he committed the felony, 23 when he conceded removability and waived appeal. There is, and was at the time of Mendez-Alearaz’s guilty plea to sexual abuse of a minor, no discretionary relief from removal available to an aggravated felon who had served a prison term of five years or more.³

At the time of his removability hearing, we had not yet held that sexual abuse of a minor was an “aggravated felony” for purposes of this statute. (The statute was amended expressly to make it one, but the effective date of the amendment was after Mendez-Alearaz’s guilty plea.⁴) The immigration judge (“IJ”) held that the crime was an aggravated felony, but recognized that it was an arguable issue, saying “I could be wrong on this. There is a significant legal issue. Do you understand that?,” to which Mendez-Alcaraz responded “yes.”

The IJ ordered Mendez-Alcaraz removed to Mexico. Mendez-Alcaraz expressly waived appeal after conferring with counsel. He moved to Mexico in January 2003, in compliance with the order of removal. Mendez-Alearaz’s brief alleges that he has neither reentered nor attempted to reenter the United States since that time.

Fourteen months after the hearing and removal order (and waiver of appeal), Mendez-Alearaz moved for reconsideration, on the theory that when he pleaded guilty to sexual abuse of a minor, it was not an aggravated felony. The IJ denied the motion because “[t]he same arguments were raised at trial. Respondent could have reserved and filed appeal. There is nothing ‘new’ or ‘different’ now.” Mendez-Alearaz appealed the denial of reconsideration to the BIA. It dismissed, agreeing with the IJ’s decision, and adding several alternative grounds: (1) the IJ and BIA had no jurisdiction to grant reconsideration because Mendez-Alearaz had been removed to Mexico;⁵ (2) the motion was untimely, having been filed long after the 30 day time limit;⁶ and (3) the crime was retroactively reclassified as an aggravated felony and he served five years or more.⁷ Mendez-AIaearaz petitions for review.

Analysis

We must first decide whether Mendez-Alcaraz’s removal to Mexico deprives us of jurisdiction to decide this petition for review from the denial of his motion for reconsideration. The answer would have been that it did, before the “transitional rules” period⁸ under IIRIRA ended and the “permanent rules” period⁹ began, on April 1, 1997.¹⁰ The IIRIRA “permanent rules”¹¹ do not include the old jurisdiction-stripping provision for excluded, deported, or removed aliens.¹² ‘We now may entertain a petition after the alien has departed.” ¹³

The BIA based its dismissal of Mendez-Alcaraz’s appeal on three independent grounds. Because untimeliness is dispositive, we need not reach the other issues.¹⁴

Though Mendez-Alcaraz missed the 30 day deadline for filing his motion, he argues that the deadline should be equitably tolled. The deadline can be equitably tolled for various reasons, such as that “despite all due diligence, the party invoking equitable tolling is unable to obtain vital information bearing on the existence of the claim.” ¹⁵ Tolling requires that “his or her ignorance of the limitations period was caused by circumstances beyond the party’s control, and that these circumstances go beyond a garden variety claim of excusable neglect.”¹⁶

Mendez-Alcaraz argues that the IJ deprived him of the knowledge he needed by telling him that his crime was indeed an aggravated felony, and “[l]iving in Mexico, Mr. Mendez was unaware” of two decisions that would have made aggravated felony classification arguable, and “through reasonable diligence could not have discovered” these cases.

We cannot accept this argument. There is no claim that the internet and law libraries do not exist in Mexico. Moreover, the IJ expressly told Mendez-Alcaraz that he “could be wrong on this. There is a significant legal issue,” before asking if Mendez-Alearaz wanted to appeal. We further note that Mendez-Alcaraz had counsel then and now.

PETITION DENIED.

1 . Or.Rev.Stat. § 163.427.

2 . 8 U.S.C. § 1227(a)(2)(A)(iii).

3 . Pub.L. No. 101-649, § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182(c)); INS v. St. Cyr, 533 U.S. 289, 297, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir.2002).

4 .8 U.S.C. § 1101(a)(43)(A).

5 . See 8 C.F.R. § 1003.2(d) ("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.”); 8 C.F.R. § 1003.23(b)(1) (same).

6 . 8 C.F.R. § 1003.23(b)(1).

7 . See Aragon-Ayon v. INS, 206 F.3d 847, 853 (9th Cir.2000) ("Congress intended the 1996 amendments to make the aggravated felony definition apply retroactively to all defined offenses whenever committed, and to make aliens so convicted eligible for deportation notwithstanding the passage of time between the crime and the removal order.").

8 . 8 U.S.C. § 1105a(c) (1994), as modified by IIRIRA § 309(c), Pub.L. No. 104-208, 110 Stat. 3009; see also Contreras-Aragon v. INS, 852 F.2d 1088, 1091 n. 1 (9th Cir.1988), superseded by statute, Pub.L. No. 104-208, 110 Stat. 3009, as recognized in Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1170-71 (9th Cir. 2003).

9 . 8 U.S.C. § 1252(d).

10 . 8 U.S.C. § 1105a(c)(1994), as modified by IIRIRA § 309(c), Pub.L. No. 104-208, 110 Stat. 3009 (providing for the effective date of the permanent rules).

¹¹

12 . Zazueta-Carrillo, 322 F.3d at 1171.

13 . Id. Accord Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir.2001) (holding that, after IIRI-RA, a petitioner's removal from the United States does not render the case moot); Tapia Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir.2001) (holding that "deportation no longer forecloses judicial review”).

14 . The dissent raises issues that Petitioner did not, and that have nothing to do with the timeliness issue upon which we have decided this case. Generally, we need not and do not consider issues that are neither pre-served nor raised on appeal or by petition for review. United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995). Even if the issues were preserved and raised, they would not avail Petitioner because a criminal conviction, cannot be attacked collaterally in a deportation proceeding. Ortega de Robles v. INS, 58 F.3d 1355, 1358 (9th Cir.1995). Finally, even if the issues were preserved and raised and could be reached, the dissent's suggestion that the unconstitutionality of Measure 11 is "easily extrapolated” from In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) is unsupported. Alvarado v. Hill, 252 F.3d 1066, 1068-69 (9th Cir.2001), held that Measure 11 is not contrary to clearly established Supreme Court precedent, based on those very two cases. Id.

15 . Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.2001) (en banc) (quotation marks and brackets omitted).

16 . Id. at 1193 (citation and internal quotations marks omitted).