Francisco Vega-Anguiano v. William Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER VEGA- No. 15-72999
ANGUIANO,
Petitioner, Agency No.
A075-268-076
v.
WILLIAM P. BARR, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of
Immigration and Customs Enforcement
Argued and Submitted April 8, 2019
Seattle, Washington
Filed November 19, 2019
Before: William A. Fletcher, Consuelo M. Callahan,
and Morgan Christen, Circuit Judges.
Opinion by Judge W. Fletcher;
Concurrence by Judge Christen;
Dissent by Judge Callahan
2 VEGA-ANGUIANO V. BARR
SUMMARY*
Immigration
Granting Francisco Vega-Anguiano’s petition for review
of an order of Immigration and Customs Enforcement
(“ICE”) reinstating his prior order of removal, the panel held
that: 1) because Vega-Anguiano timely challenged his
reinstatement order, the court had jurisdiction to review that
order, including the collateral attack on his underlying
removal order; 2) Vega-Anguiano established a miscarriage
of justice in his underlying proceedings because the order
lacked a valid legal basis when it was executed; and 3) there
is no diligence requirement that limits the time during which
a collateral attack on a prior order may be made, in
reinstatement proceedings, based on a showing of a gross
miscarriage of justice.
In 1998, an Immigration Judge ordered Vega-Anguiano
removed based on a conviction for possession of a controlled
substance, but the government took no steps to remove him.
In 1999, his conviction was expunged under California Penal
Code § 1203.4, a rehabilitative statute. As the panel
explained, 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
satisfies the requirements of the Federal First Offender Act
(“FFOA”). The panel noted that the government conceded at
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VEGA-ANGUIANO V. BARR 3
oral argument that Vega-Anguiano met all the requirements
of the FFOA when his conviction was expunged.
In 2008, Vega-Anguiano was removed to Mexico
pursuant to the 1998 order, but illegally reentered the United
States. In 2013, he moved to reopen his 1998 proceedings,
but the BIA denied the motion as untimely, and this court
denied his petition for review. In 2014, Vega-Anguiano was
convicted of “misprison of a felony” related to cock-fighting,
and ICE reinstated his prior order of removal. Vega-
Anguiano filed a timely petition for review of the
reinstatement order.
The panel explained that the court has jurisdiction to
review a reinstatement order, and that some collateral attack
is permitted on an underlying removal order, during review
of a reinstatement order, if the petitioner can show that he
suffered a gross miscarriage of justice in the initial
deportation proceeding. However, the government argued
that Vega-Anguiano’s challenge to his 1998 order was
untimely, and that therefore, the court lacked jurisdiction
under 8 U.S.C. § 1252(b)(1), which requires a petition for
review to be filed within thirty days of a final “order of
removal.” The panel rejected that argument, holding that it
had jurisdiction to review Vega-Anguiano’s reinstatement
order, including his collateral attack on the 1998 order. The
panel explained that “order of removal” in § 1252(b)(1)
covers both removal and reinstatement orders such that, in
cases where the petitioner seeks review of a reinstatement
order, § 1252(b)(1) requires only that the reinstatement order
be challenged within thirty days of becoming final. The
panel noted that the Third, Fifth, and Tenth Circuits had come
to a contrary conclusion.
4 VEGA-ANGUIANO V. BARR
Addressing Vega-Anguiano’s collateral attack, the panel
explained that prior orders of removal are not generally
subject to collateral attack in reinstatement proceedings, but
that the court retains jurisdiction to review an underlying
removal order if the petitioner can show he suffered a gross
miscarriage of justice in the underlying proceeding. The
panel explained that the BIA has held that a gross miscarriage
of justice occurs when a deportation or removal order had no
legal basis at the time of its issuance or at the time of its
execution. In Matter of Farinas, 12 I. & N. Dec. 467 (BIA
1967), the BIA found a gross miscarriage of justice where the
decision ordering Farina’s deportation could not have
withstood judicial attack at the time it was executed. The
panel noted that the BIA has continued to apply Farinas, that
the Seventh and Third Circuits have followed it, and that this
court’s case law is consistent with Farinas.
The panel held that Vega-Anguiano had established a
gross miscarriage of justice in his underlying proceeding,
explaining that there was no valid legal basis for the removal
order at the time it was executed in 2008 because the
conviction on which the order had been based had been
expunged and, as a result, he met the requirements of the
FFOA.
The panel also concluded that the gross miscarriage of
justice standard does not include a diligence component that
bars a collateral challenge to a prior order when a
reinstatement order is timely challenged on the ground that
the prior order, on which the new order is based, in invalid.
The panel explained that the controlling BIA decision was
Farinas, where the BIA declined to fault Farinas either for his
failure to appeal his original deportation order, or for the
VEGA-ANGUIANO V. BARR 5
sixteen-year gap between his deportation and his collateral
challenge to that deportation in later proceedings.
Concurring, Judge Christen agreed that the court had
jurisdiction, but wrote separately to emphasize the record in
this case, which she concluded necessitated granting the
petition. Judge Christen wrote that the government had taken
the position that Vega-Anguiano did not submit his
expungement order until 2014, but it was established, at oral
argument, that counsel did not know what was in Vega-
Anguiano’s immigration file at the time of the reinstatement
decision and that the file would have been incomplete without
that order. Further, Judge Christen observed that Vega-
Anguiano notified the BIA of the expungement at least by
November of 2013, when he filed his motion to reopen.
Judge Christen also noted that the immigration records were
riddled with errors that signal the agency had incorrect
information.
Dissenting, Judge Callahan wrote that the panel is bound
by this court’s decision in Morales-Izquierdo v. Gonzales,
486 F.3d 484 (9th Cir. 2007) (en banc), in which the court
held that reinstatement of a prior removal order—regardless
of the process afforded in the underlying order—does not
offend due process because reinstatement of a prior order
does not change the alien’s rights or remedies. It follows,
wrote Judge Callahan, that Vega-Anguiano’s petition for
review from his reinstatement order does not allow the panel
to consider challenges to his underlying order. Judge
Callahan further observed that the majority of this court’s
sister circuits are in accord with that position.
Judge Callahan also wrote that the majority’s’ reliance on
Farinas failed for two reasons. First, it was not true that
6 VEGA-ANGUIANO V. BARR
Vega-Anguiano’s order could not have withstood judicial
attack under the law at the time of his removal; rather, the
expungement of his conviction under a rehabilitative statute
did not mean his possession conviction was no longer a
conviction under the immigration laws, and the “fact” that he
might have been eligible for relief under the FFOA did not
make his removal order legally invalid. Second, Judge
Callahan concluded that Vega-Anguiano had not made a
sufficient showing of injustice, noting that he was arrested
and convicted for cocaine possession, his expungement was
under a rehabilitative statute, and he was hardly prejudiced by
the fact that he was not removed until 2008. Further, Judge
Callahan noted that the government’s failure to anticipate a
request for FFOA relief did not make his 2008 removal a
miscarriage of justice, and that there was no injustice in the
reinstatement of his order after he illegally reentered the
country and was convicted of a misprison of a felony.
COUNSEL
Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington, for Petitioner.
Todd J. Cochran (argued) and Robbin K. Blaya, Trial
Attorneys; Daniel E. Goldman, Senior Litigation Counsel;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
VEGA-ANGUIANO V. BARR 7
OPINION
W. FLETCHER, Circuit Judge:
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 of the reinstatement order. Vega-
Anguiano challenges the validity of the underlying removal
order and argues that the reinstatement proceedings violated
the Department of Homeland Security’s regulations and his
due process rights. We 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 argues that we lack jurisdiction over
Vega-Anguiano’s collateral attack because his attempt to
challenge his 1998 removal order is “untimely” under
§ 1252(b)(1), which requires that a petition for review
ordinarily be filed within thirty days of the order becoming
8 VEGA-ANGUIANO V. BARR
final. 8 U.S.C. § 1252(b)(1). Whether Vega-Anguiano’s
petition is a timely challenge is an issue of first impression in
this circuit. See Villa-Anguiano, 727 F.3d at 879 n.4
(acknowledging but declining to address the argument). The
Third, Fifth, and Tenth Circuits have held that a federal court
lacks jurisdiction to consider a collateral attack on a
reinstated order if the petitioner failed to challenge the
original order within thirty days of it becoming final. Luna-
Garcia de Garcia v. Barr, 921 F.3d 559, 563–65 (5th Cir.
2019); Verde-Rodriguez v. Attorney Gen. U.S., 734 F.3d 198,
203 (3d Cir. 2013); Cordova-Soto v. Holder, 659 F.3d 1029,
1031–32 (10th Cir. 2011). We disagree with this
understanding of the relationship between the thirty-day limit
of § 1252(b)(1) and the jurisdictional savings clause of
§ 1252(a)(2)(D).
We agree with the government that § 1252(b)(1)
constrains § 1252(a)(2)(D). See § 1252(a)(2)(D) (explicitly
exempting provisions in “this section,” including
§ 1252(b)(1), from the scope of the savings clause). But we
understand the nature of that constraint differently from our
sister circuits. 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.” In Castro-Cortez v. INS, we
interpreted a related jurisdictional provision in § 1252(a)(1),
which authorizes review of “order[s] of removal.” 239 F.3d
1037, 1044 (9th Cir. 2001), abrogated on other grounds by
Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). We held
that the phrase “order of removal” in § 1252(a)(1) covers both
removal and reinstatement orders. Id. We now read “order
of removal” in § 1252(b)(1) the same way. Accordingly, in
cases in which the petitioner is seeking review of a
reinstatement order, we read § 1252(b)(1) as requiring only
that the reinstatement order be challenged within thirty days
VEGA-ANGUIANO V. BARR 9
of becoming final. Vega-Anguiano timely filed a petition for
review of his reinstatement order. Thus, we have jurisdiction
under § 1252(a)(1) and § 1252(a)(2)(D) to review Vega-
Anguiano’s reinstatement order, including his collateral
attack on the underlying removal order.
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. 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 (“INS”) took no steps
to remove Vega-Anguiano.
10 VEGA-ANGUIANO V. BARR
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) (internal quotation 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-Anguino’s
1991 conviction thus removed the legal basis for his 1998
removal order. Wiedersperg v. INS, 896 F.2d 1179, 1182 (9th
1
The dissent states that Nunez-Reyes “held that we would only apply
[that] decision prospectively to protect those who relied on Lujan-
Armendariz” and that “[i]t does not appear that Vega-Anguiano relied on
Lujan-Armendariz . . . .” But Nunez-Reyes did not require a showing of
reliance. To the contrary, it set out a bright-line rule: “For those aliens
convicted before the publication date of this decision, Lujan-Armendariz
applies. For those aliens convicted after the publication date of this
decision, Lujan-Armendariz is overruled.” Nunez-Reyes, 646 F.3d at 694.
VEGA-ANGUIANO V. BARR 11
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 with the BIA a
motion to reopen his 1998 proceeding. He explained in the
motion that his 1991 conviction had been expunged. He
argued for equitable tolling of the filing deadline 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 February 2014, ICE notified Vega-Anguiano that it
intended to reinstate his December 1998 removal order.
12 VEGA-ANGUIANO V. BARR
While in ICE custody, Vega-Anguiano “refused to answer
any questions or sign any documents without the presence of
an attorney.” ICE reinstated the prior order of removal.
Vega-Anguiano filed with this court a timely petition for
review of the reinstatement order. In his petition, Vega-
Anguiano collaterally attacks his original removal order. He
also argues that ICE violated its own regulations and his due
process rights during the reinstatement proceeding.
III. Discussion
There are strict limitations on collateral attacks on prior
removal orders. Collateral attack is largely reserved for cases
in which the removal order could not have withstood judicial
scrutiny under the law in effect at the time of either its
issuance or its execution. See, e.g., Matter of Farinas,
12 I. & N. Dec. 467 (BIA 1967). There was no valid legal
basis for Vega-Anguiano’s removal order at the time of its
execution in 2008 because the conviction on which it had
been based had been expunged in 1999. This is therefore one
of the rare cases where a collateral attack is appropriate.
The rule that prior removal orders are not generally
subject to collateral attack is codified at 8 U.S.C.
§ 1231(a)(5): If “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.” 8 U.S.C. § 1231(a)(5).
However, under § 1252(a)(2)(D), we retain jurisdiction to
review an underlying removal 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 BIA has consistently held that “an
VEGA-ANGUIANO V. BARR 13
alien may collaterally attack a final order of exclusion or
deportation in a subsequent deportation proceeding only if
she can show that the prior order resulted in a gross
miscarriage of justice.” Matter of Roman, 19 I. & N. Dec.
855, 856–57 (BIA 1988). See also Matter of Malone,
11 I. & N. Dec. 730, 731–32 (BIA 1966) (finding a gross
miscarriage of justice where an alien’s deportation order was
clearly not in accord with the law as interpreted at the time of
issuance); Farinas, 12 I. & N. at 471–72 (finding a gross
miscarriage of justice where an alien’s deportation order,
which was valid when entered, became invalid by virtue of
controlling circuit precedent issued prior to the execution of
the order).
The BIA has held that a gross miscarriage of justice
occurs when a deportation or removal order had no valid legal
basis at the time of its issuance or at the time of its execution.
The BIA held in Farinas, 12 I. & N. at 472, that “the decision
in [Farinas’s] case could not have withstood judicial attack
under the law as it was then (and still is) interpreted. This
being the case, a showing of gross miscarriage of justice has
been made.” Farinas was convicted in 1936 of burglary, a
crime of moral turpitude, while a permanent resident. After
completing his sentence, Farinas worked for a company that
regularly sent him to Alaska to work in a cannery. In July
1942, the ship that was taking Farinas to Alaska stopped in
Vancouver, Canada, and Farinas briefly went ashore. After
arriving in Alaska, he was inspected and admitted into the
United States. In 1944, Farinas was convicted of abducting
a female under 18 years of age for sexual intercourse and was
sentenced to five years in prison. In 1946, Farinas was
ordered deported for being inadmissible (based on his
burglary conviction) at the time of his entry into the United
States in 1942 in Alaska. However, two cases decided shortly
14 VEGA-ANGUIANO V. BARR
thereafter made clear that Farinas was not deportable as
charged because his arrival in Alaska was not properly
deemed an “entry” under the immigration laws. See
DiPasquale v. Karnuth, 158 F.2d 878 (2d Cir. Jan. 11, 1947);
Delgadillo v. Carmichael, 332 U.S. 388 (Nov. 10, 1947).
Nonetheless, Farinas was deported from the United States in
1950 when he finished serving his sentence.
Farinas illegally re-entered the United States in 1966,
sixteen years later, and was placed in deportation proceedings
that same year. In those proceedings, Farinas challenged the
validity of his deportation in 1950. The BIA concluded that
the original 1946 deportation order was invalid at the time it
was executed in 1950. The BIA wrote that “from November
1947 until respondent’s deportation in May 1950, the
decision in respondent’s case could not have withstood
judicial attack under the law as it was then (and still is)
interpreted.” Farinas, 12 I. & N. at 472. Because Farinas’s
1950 deportation lacked a valid legal basis at the time of his
deportation, the BIA concluded that in 1966, sixteen years
after the deportation, Farinas had made “a showing of gross
miscarriage of justice” that permitted a collateral attack on
the original deportation order. Id. That is, the BIA refused
to give legal effect to the prior deportation order despite
Farinas’s failure to appeal that order at the time it was issued
and despite the sixteen-year gap between Farinas’s
deportation and 1966. Id. at 469.
The BIA has continued to apply Farinas as good law:
“Under our precedents, enforcement of a removal order
would result in a gross miscarriage of justice only if the order
clearly could not have withstood judicial scrutiny under the
law in effect at the time of its issuance or initial execution.”
In Re: Daniel Espino-Medina A.K.A. Daniel Espino, 2016
VEGA-ANGUIANO V. BARR 15
WL 1722509, at *2 (BIA Apr. 5, 2016) (citing Farinas)
(emphasis added); see also In Re: Roman Miguel Duran-
Alvarado A.K.A. Roman Alvarado, 2014 WL 7691451, at *2
(BIA Dec. 17, 2014) (same); In Re: Julio Alexander Guzman-
Vasquez, 2014 WL 1118477, at *1 (BIA Feb. 18, 2014)
(same); In Re: Tunbosun Olawale William, 2008 WL
5537807, at *3 (BIA Dec. 23, 2008) (same).
Our sister circuits have followed Farinas’s approach. For
example, the Seventh Circuit has observed that a gross
miscarriage of justice has been found when “the individual
should not have been deported based on the law as it existed
at the time of the original deportation.” Robledo-Gonzales v.
Ashcroft, 342 F.3d 667, 682 n.13 (7th Cir. 2003) (citing
Farinas); see also Debeato v. Attorney Gen. of U.S., 505 F.3d
231, 236 (3d Cir. 2007) (adopting Robledo-Gonzales’s
approach to the gross miscarriage of justice standard).
Our circuit’s case law is consistent with Farinas. In
Hernandez-Almanza v. INS, 547 F.2d 100 (9th Cir. 1976), we
cited Farinas for the proposition that “an exclusion order may
not be attacked at a subsequent hearing unless there was a
gross miscarriage of justice at the prior proceedings.” Id.
at 102. Hernandez-Almanza was ordered excluded in 1971
based on a prior conviction and was promptly returned to
Mexico. He reentered the U.S. without inspection in 1972.
In 1973, he was served with an Order to Show Cause for why
he should not be deported. Pending the hearing on that order,
he obtained an order from the state court vacating his 1971
guilty plea. Following the logic of Farinas, which allows a
collateral attack when a predicate conviction was vacated
before execution of the challenged deportation order, we held
that Hernandez-Almanza could not collaterally attack the
1971 order because “he failed to institute proceedings to
16 VEGA-ANGUIANO V. BARR
vacate his conviction prior to his [1971 exclusion].” Id.
at 103 (emphasis added).
Vega-Anguiano, in contrast to Hernandez-Almanza, had
his conviction expunged prior to—indeed, many years prior
to—the execution of his removal order in 2008. As we noted
above, and as the government has conceded, the expungement
eliminated the legal basis for his removal order because
Vega-Anguiano met the requirements of the Federal First
Offender Act. Thus, by the time of Vega-Anguiano’s
removal in 2008, his removal order lacked a valid legal basis.
Under Farinas, this is a “gross miscarriage of justice.”
12 I. & N. at 472.
We have never addressed whether the gross miscarriage
of justice standard includes a diligence component that bars
a collateral challenge to a prior removal order when a
reinstatement order is timely challenged on the ground that
the prior removal order, on which the new order is based, is
invalid. The controlling BIA decision is Farinas. The BIA
declined to fault Farinas either for his failure to appeal his
original deportation order, or for the sixteen-year gap
between his initial invalid deportation and his collateral
challenge to that deportation during his later deportation
proceedings.
The BIA noted in Farinas that the initial deportation
order was legally invalid at the time of his deportation. It
wrote, “This being the case, a showing of gross miscarriage
of justice has been made.” 12 I. & N. at 472. Farinas is on
all fours with Vega-Anguiano’s case. It established two
propositions. First, where an alien has been removed on the
basis of a deportation or removal order that lacked a valid
legal basis at the time of its issuance or execution, a gross
VEGA-ANGUIANO V. BARR 17
miscarriage of justice has occurred. Second, there is no
diligence requirement that limits the time during which a
collateral attack on that deportation or removal order may be
made based on a showing of gross miscarriage of justice.
The equitable idea that diligence should not be demanded
of individuals who were previously removed on an invalid
legal basis, and who, as a result, are facing adverse legal
consequences in new proceedings, is familiar. We have
endorsed this idea in the context of illegal reentry
prosecutions under 8 U.S.C. § 1326. Normally, an alien can
challenge the validity of a prior removal order as a defense to
illegal reentry only if he demonstrates that (1) he has
exhausted any administrative remedies that may have been
available to seek relief from the order; (2) the removal
proceedings at which the order was issued improperly
deprived him of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair. 8 U.S.C.
§ 1326. “But under our circuit’s law, if Defendant was not
convicted of an offense that made him removable under the
INA to begin with, he is excused from proving the first two
requirements.” United States v. Ochoa, 861 F.3d 1010, 1015
(9th Cir. 2017).
Our dissenting colleague contends that Morales-Izquierdo
v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc), requires
a different result. We disagree.
The central question in Morales-Izquierdo was whether
an immigration officer (as distinct from an Immigration
Judge) could reinstate a removal order. We held that an
immigration officer could do so. A further question was
whether a removal order could be reinstated—by either an
immigration officer or an Immigration Judge—if there had
18 VEGA-ANGUIANO V. BARR
been a due process violation during the underlying removal
proceeding. Our case law at the time was that “[t]he INS
cannot reinstate a prior order of removal that did not comport
with due process.” Arreola-Arreola v. Ashcroft, 383 F.3d
956, 963 (9th Cir. 2004).
In Morales-Izquierdo, we overruled our decision in
Arreola-Arreola. We wrote, “Reinstatement of a prior
removal order—regardless of the process afforded in the
underlying order—does not offend due process because
reinstatement of a prior order does not change the alien’s
rights or remedies.” Morales-Izquierdo, 486 F.3d at 497.
Our dissenting colleague relies on this sentence, but it has no
bearing on the case before us.
The question here is not whether Vega-Anguiano was
afforded due process in the proceeding that led to the entry of
his removal order. Whether or not he was afforded due
process, he contends that the execution of his removal
order— which was invalid at the time of its
execution—constituted a “gross miscarriage of justice.”
The governing law when we decided Morales-Izquierdo
was not only, as in Arreola-Arreola, that a removal order
“that did not comport with due process” could not be
reinstated. It was also, as in Farinas, that a removal order
whose execution constituted a “gross miscarriage of justice”
could not be reinstated. In Morales-Izquierdo, we
specifically addressed due process and overruled Arreola-
Arreola by name. We said nothing about gross miscarriage
of justice and never mentioned Farinas.
VEGA-ANGUIANO V. BARR 19
Conclusion
Vega-Anguiano timely challenged the order reinstating
his prior removal order. Based on Farinas, we conclude that
Vega-Anguiano has shown a “gross miscarriage of justice.”
His 1998 removal order lacked a valid legal basis at the time
of his removal in 2008. Also based on Farinas, we further
conclude that Vega-Anguiano’s collateral attack on his
removal order is timely. We therefore hold that the
reinstatement order was improper. We do not reach Vega-
Anguiano’s due process and regulatory arguments.2
Petition for Review GRANTED.
CHRISTEN, Circuit Judge, concurring:
I agree that we have jurisdiction to hear Vega-Anguiano’s
petition for review. I write separately to emphasize the
record in this case, which I conclude necessitates our decision
to grant the petition for review.
The government took the position prior to oral argument
that Vega-Anguiano did not submit notice of his 1999
expungement order until July of 2014, five months after the
Department of Homeland Security (the “agency”) decided to
reinstate the removal order. However, at oral argument, it
was established that counsel did not know what was in the A-
2
Appellant’s Motion to Supplement the Record on Appeal [Dkt.
No. 21], filed November 16, 2017, is GRANTED IN PART, as to Vega-
Aguiano’s 1999 expungement order. See id. at 38.
20 VEGA-ANGUIANO V. BARR
File1 at the time the immigration officer made the February
2014 reinstatement decision. Counsel for the government
agreed that the A-File would have been incomplete without
the 1999 expungement order. After oral argument, we now
know that Vega-Anguiano notified the BIA of his
expungement at least by November of 2013, when he
attached the 1999 order to his motion to reopen. Although it
is not clear when Vega-Anguiano first submitted notice of the
expungement order to the agency, the record shows that a
California Superior Court entered the 1999 expungement
order nearly two months before the agency issued the warrant
for the order of removal, approximately nine years before the
agency removed Vega-Anguiano to Mexico, and almost
fifteen years before the agency issued the reinstatement order.
Whether or not the expungement order was filed with the
agency prior to November of 2013, the immigration records
are riddled with errors that signal the agency had incorrect
information. For example, at least one immigration record
incorrectly states that Vega-Anguiano was arrested and
charged with possession for sale (not simple possession) of
cocaine; at least one record shows that he was arrested twice
(not once); and others show that he was convicted in 1999
(not 1991), which suggests a second conviction. These errors
appear on internal immigration documents that were
apparently prepared by agency staff, not on documents
submitted by petitioner. We do not know whether they repeat
other errors in the A-File. There is no indication of any
misconduct—it appears that a few scrivener’s errors were
1
“The A-File documents the history of immigrants’ and others’
interactions with components of the Department of Homeland Security
and predecessor agencies.” Dent v. Holder, 627 F.3d 365, 372 (9th Cir.
2010).
VEGA-ANGUIANO V. BARR 21
repeated as the case progressed. But, without access to his A-
File, Vega-Anguiano could not have known that he needed to
bring these errors to the agency’s attention. The
government’s concession that Vega-Anguiano would have
qualified for FFOA relief at the time of his 1999
expungement order clears up these errors in the record, but it
also underscores that an immigration officer checking the A-
File prior to reinstatement of the removal order would have
seen several false clues about the appropriateness of
reinstatement.
The 1999 expungement order, which was entered prior to
the issuance and execution of Vega-Anguiano’s warrant of
removal, eliminated the legal basis for Vega-Anguiano’s
removal. Given this sequence of events and status of the
record, I concur in granting Vega-Anguiano’s petition for
review.
CALLAHAN, Circuit Judge, dissenting:
As a three-judge panel, we are bound by our precedent.
In Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir.
2007) (en banc), we rejected Morales’ claim “that a removal
order may not constitutionally be reinstated if the underlying
removal proceeding itself violated due process.” Id. at 497.
We held that “[r]einstatement of a prior removal
order—regardless of the process afforded in the underlying
order—does not offend due process because reinstatement of
a prior order does not change the alien’s rights or remedies.”
Id. Relying on the Supreme Court’s opinion in Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 44 (2006), we noted that a
petitioner has “no constitutional right to force the government
22 VEGA-ANGUIANO V. BARR
to re-adjudicate a final removal order by unlawfully
reentering the country.” Id. at 498.1 It follows that Vega-
Anguiano’s petition for review that was filed within thirty
days of the reinstatement—but almost two decades after his
removal order—does not allow us to consider his challenges
to the underlying 1998 removal order. This is consistent with
the plain text of 8 U.S.C. § 1231(a)(5), which states: “[i]f 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.” Accordingly, to the extent
that the petition for review challenges Vega-Anguiano’s
underlying removal order, it should be dismissed.
The majority of our sister circuits are in accord with our
position in Morales-Izquierdo. See, e.g., Moreno-Martinez v.
1
Lest there be any doubt as to our holding we explained:
If Morales has a legitimate basis for challenging his
prior removal order, he will be able to pursue it after he
leaves the country, just like every other alien in his
position. If he has no such basis, nothing in the Due
Process Clause gives him the right to manufacture for
himself a new opportunity to raise such a challenge.
The contrary conclusion would create a new and wholly
unwarranted incentive for aliens who have previously
been removed to reenter the country illegally in order to
take advantage of this self-help remedy. It would also
make a mockery of aliens who do respect our laws and
wait patiently outside our borders seeking lawful
admission. Nothing in the Constitution requires such a
perverse result.
486 F.3d at 498.
VEGA-ANGUIANO V. BARR 23
Barr, 932 F.3d 461, 465 (6th Cir. July 31, 2019) (“[A]ny
challenge (collateral or otherwise) filed 30 days after the
removal order was filed is untimely and we have no
jurisdictional basis to entertain the challenge.”); Luna-Garcia
De Garcia v. Barr, 921 F.3d 559, 565 (5th Cir. 2019) (“[I]f an
alien illegally re-enters the United States and his prior
removal order is reinstated,” then to “preserve our jurisdiction
under § 1252(a)(2)(D)’s savings provision, an alien must file
a petition for review within 30 days of the removal order as
required by § 1252(b)(1), in addition to exhausting all
available administrative remedies and demonstrating that the
initial proceedings constituted a gross miscarriage of
justice.”); Verde-Rodriguez v. Attorney Gen. U.S., 734 F.3d
198, 203 (3d Cir. 2013) (finding a lack of jurisdiction over
underlying removal order because “Verde’s filing of his
appeal within thirty days after reinstatement of his removal
order does not render his petition timely”); Cordova-Soto v.
Holder, 659 F.3d 1029, 1032 (10th Cir. 2011) (concluding
that an alien petitioning for review of a reinstatement order
cannot challenge the original order of removal, including
constitutional claims or questions of law, because such a
challenge was time-barred by the statutory 30-day limit);
Sharashidze v. Mukasey, 542 F.3d 1177, 1178–79 (7th Cir.
2008) (“[Section] 1252(a)(2)(D), which authorizes this court
to decide constitutional claims and questions of law, is
explicitly constrained by the 30-day time limit in
§ 1252(b)(1).”).
Notwithstanding the wealth of authority supporting our
position in Morales-Izquierdo, the majority, relying on a 1967
decision by the Board of Immigration Appeals, Matter of
Farinas, 12 I. & N. 467 (BIA 1967), creates a “gross
miscarriage of justice” exception to the rule set forth in
Morales-Izquierdo. The majority’s position fails on at least
24 VEGA-ANGUIANO V. BARR
two grounds: first, Farinas is not applicable to Vega-
Anguiano’s case; and second, even if we were to recognize a
“gross miscarriage of justice” exception to Morales-
Izquierdo, Vega-Anguiano has not made such a showing.
As the majority recognizes, the BIA in Farinas held that
Farinas’ underlying deportation order “could not have
withstood judicial attack under the law as it was then (and
still is) interpreted.” 12 I. & N. Dec. at 472. This is simply
not true of Vega-Anguiano’s removal order. The
expungement of his conviction under a California
rehabilitative statute does not mean that his possession
offense was no longer a conviction under the immigration
laws.2 See Nunez-Reyes v. Holder, 646 F.3d 684, 689–90 (9th
Cir. 2011). Moreover, the “fact” that Vega-Anguiano might
have been eligible for relief under the Federal First Offender
Act, had he sought such relief before his removal, does not
mean that his removal was legally invalid. Rather, Vega-
Anguiano remained removable based on his cocaine
conviction until and unless he was granted relief under the
Federal First Offender Act, or some other statute.3 To the
extent that the gross miscarriage of justice exception that the
2
Wiedersperg v. I.N.S., 896 F.2d 1179 (9th Cir. 1990), is similarly
distinguishable. Wiedersperg’s conviction was not expunged, but vacated.
3
In Nunez-Reyes we overruled our prior opinion in Lujan-Armendariz
v. I.N.S., 222 F.3d 728 (9th Cir. 2000), and held that “that the
constitutional guarantee of equal protection does not require treating, for
immigration purposes, an expunged state conviction of a drug crime the
same as a federal drug conviction that has been expunged under the
FFOA.” 646 F.3d at 690. However, we also held that we would only
apply our decision prospectively to protect those who relied on Lujan-
Armendariz. Id. at 693–94. It does not appear that Vega-Anguiano relied
on Lujan-Armendariz prior to our opinion in Nunez-Reyes.
VEGA-ANGUIANO V. BARR 25
majority extracts from Farinas depends on the prior
deportation or removal order not withstanding judicial attack,
Vega-Anguiano has not shown that his removal order was, or
is, infirm.
Even if the legal invalidity of the underlying removal
order were not an essential component of a “gross
miscarriage of justice,” Vega-Anguiano has not made a
sufficient showing of injustice to invoke our purported
jurisdiction. There is no question that he was arrested for
possession of cocaine in 1988 and convicted of possession in
1991. As noted, the expungement of his conviction in 1999
under a California rehabilitative statute did not undermine the
basis for his removal or make his removal illegal. The fact
that the government did not remove Vega-Anguiano until
2008 hardly prejudiced him. Thus, even accepting that Vega-
Anguiano might have been eligible for consideration under
the First Federal Offender Act after the 1999 expungement—
had he requested relief—the government’s failure to
anticipate such a request does not make his 2008 removal a
gross miscarriage of justice. Nor is there any injustice in the
reinstatement of his prior removal order after he illegally
reentered the United States and was convicted of a misprision
of a felony.
I would affirm the BIA’s denial of immigration relief
because our review of Vega-Anguiano’s petition to review
his reinstatement order does not extend to considering the
merits of his underlying removal order. Moreover, even if
there were a “gross miscarriage of justice” exception that
created jurisdiction, Vega-Anguiano has not shown any
injustice because his prior removal was not illegal either
when he was removed in 2008 or now. Accordingly, I
dissent.