Perez v. Holder , 411 F. App'x 34 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUIS FELIPE PEREZ, No. 06-74403
Petitioner, Agency No. A018-832-080
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
LUIS FELIPE PEREZ, No. 08-74373
Petitioner, Agency No. A018-832-080
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted December 10, 2010 **
San Francisco, California
Before: HAWKINS and N.R. SMITH, Circuit Judges, and PRO, District Judge.***
Luis Felipe Perez, a native and citizen of Panama, petitions the court to
review the decisions of the Board of Immigration Appeals (BIA) affirming the
immigration judge’s (IJ) reopening of Perez’s deportation hearing, pretermitting
Perez’s application for suspension of deportation, and cancelling Perez’s
withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)
and we deny the petitions.
1. The BIA did not err in allowing the government to file more than one
motion to reopen. By its unambiguous language, 8 C.F.R. § 1003.23 (which
governs motions to reopen) exempts the government from “time and numerical
limitations”on motions to reopen “by the Service in removal proceedings pursuant
to section 240 of the Act.” § 1003.23(b)(1); cf. Dada v. Mukasey, 554 U.S. 1, 13
(2008) (discussing the limitations placed on motions to reopen due to aliens
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Philip M. Pro, United States District Judge for the
District of Nevada, sitting by designation.
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abusing the procedure to delay proceedings). The removal proceedings in this case
were brought “pursuant to section 240 of the Act.” See 8 U.S.C. §§ 1229–1229c.1
2. The BIA also correctly held that res judicata and issue preclusion did not bar
the government’s second motion to reopen. The use of a conviction which was
available in previous removal proceedings, but not used, is not barred by res
judicata when it is combined with new convictions in new proceedings. Poblete
Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir. 2010). Similarly, additional
charges may be added to a case where there has been no final order of removal.
Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1324 (9th Cir. 2006); see also 8
C.F.R. § 1030.30 (“At any time during deportation or removal proceedings,
additional or substituted charges of deportability and/or factual allegations may be
lodged by the Service in writing.”). Because the government may use convictions
available in previous proceedings (as in Poblete Mendoza), add charges at any time
(as in Valencia-Alvarez), and bring as many motions to reopen as necessary, then, a
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Perez’s claim that the regulations prohibit bringing a motion to reopen
based on previously available evidence is also unavailing because his drug
trafficking conviction was not previously available at his deportation hearing. The
use of a conviction which was available at the time of filing a previous motion, but
not before a previous hearing, is not barred by the regulations. See 8 C.F.R. §
1003.23(b)(3); Malty v. Ashcroft, 381 F.3d 942, 946 (9th Cir. 2004).
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fortiori, basing a second motion to reopen on evidence available in prior motions
does not trigger res judicata.
Similar to res judicata, Perez’s assertion of issue preclusion must also fail,
because the basis for the government’s second motion to reopen (the drug
trafficking charges) had not been determined in any prior action. Instead, the
government correctly sought to add the drug trafficking charges to the pending
action. See Valencia-Alvarez, 469 F.3d at 1323 n.6.
3. The BIA did not err in holding that neither equitable estoppel nor
laches prevents the government from moving to reopen. Perez points to no
evidence demonstrating affirmative misconduct on the part of the
government, which is necessary to apply equitable estoppel. See Cortez-
Felipe v. INS, 245 F.3d 1054, 1057 (9th Cir. 2001). “Mere unexplained
delay does not show misconduct.” Jaa v. INS, 779 F.2d 569, 572 (9th Cir.
1986); see also Morgan v. Gonzales, 495 F.3d 1084, 1092 (9th Cir. 2007).
Thus, because Perez alleges no more than unexplained delay, equitable
estoppel does not bar the government’s second motion to reopen.
Regarding laches, “[t]he traditional rule is that the doctrine of laches is not
available against the government . . . . Even if there were some allowance for
laches against the government, there is no reason why that doctrine should not be
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subject to at least the same strictures as estoppel.” U.S. v. Ruby Co., 588 F.2d 697,
705 n.10 (9th Cir. 1978). Thus, because equitable estoppel is not available to
Perez, laches is not available to him either.
4. The stop-time rule is not impermissibly retroactive to Perez. Prior to the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) going into
effect on April 1, 1997, Perez must have accrued ten years continuous physical
presence in the United States to qualify for suspension of deportation, because he
was convicted of drug trafficking. See 8 U.S.C. § 1254(a)(2) (1994). Only
physical presence “immediately following the commission of an act, or the
assumption of a status, constituting a ground for deportation” could count toward
his required ten years. Id. Once IIRIRA came into effect, its “stop-time rule”
barred the counting of any time after the service of an Order to Show Cause
towards the “continuous physical presence” requirement. 8 U.S.C. § 1229b(d)(1);
see also Ram v. INS, 243 F.3d 510, 513-14 & n.5 (9th Cir. 2001). Congress
intended the stop-time rule to apply to proceedings commenced prior to IIRIRA,
and its retroactive application does not violate due process. Ram, 243 F.3d at 517;
Pedroza-Padilla v. Gonzales, 486 F.3d 1362, 1364 (9th Cir. 2007).
Thus, in order to be eligible for suspension of deportation, Perez had to
accrue ten years of physical presence in the United States prior to April 1, 1997,
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(when IIRIRA went into effect) but after the “commission of an act, or the
assumption of a status, constituting a ground for deportation.” 8 U.S.C.
§ 1254(a)(2) (1994). Perez was five weeks short of the necessary ten years,
because he “assumed the status” of being convicted of a controlled substance
offense when he pleaded guilty to the drug trafficking charges on May 8, 1987.
See Flores-Arellano v. INS, 5 F.3d 360, 363 n.6 (9th Cir. 1993) (“[B]ecause ten
years have not elapsed since the conviction rendering Flores deportable under
section 241(a)(2)(B)(i), he is statutorily ineligible for suspension of deportation.”).
Thus, under former § 1254(a)(2), Perez’s time began to run at the date of his
conviction and he did not reach the necessary ten years physical presence before
the stop-time rule became applicable. Therefore, the stop-time rule is not
impermissibly retroactive as to Perez, see Otarola v. INS, 270 F.3d 1272, 1277 (9th
Cir. 2001) (distinguishing Ram and granting the petition where the applicant had
met the seven-year physical presense requirement before the effective date of
IIRIRA), and the BIA did not err in pretermitting Perez’s application for
suspension of deportation.
PETITIONS DENIED.
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