Alejandro Lopez Vazquez v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO LOPEZ VAZQUEZ, No. 18-70329
Petitioner,
Agency No.
v. A074-608-073
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Department of Homeland Security
Argued and Submitted August 12, 2021
Seattle, Washington
Filed November 12, 2021
Before: Carlos T. Bea, Daniel A. Bress, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Bress
2 LOPEZ VAZQUEZ V. GARLAND
SUMMARY *
Immigration
Dismissing Alejandro Lopez Vazquez’s petition for
review of a 2017 Department of Homeland Security order
reinstating his 1996 removal order, the panel concluded that
Lopez’s 1996 order had a valid basis both when it was issued
and when he was removed, and therefore, he failed to
establish a miscarriage of justice that would permit the court
to entertain a collateral attack on the 1996 order.
Lopez collaterally attacked his 1996 order on the ground
that the drug conviction underlying that order was vacated in
2014. It was undisputed that Lopez’s conviction was legally
valid at the time his original removal order was issued and
when it was executed. The panel explained that in reviewing
a reinstatement order, the court has jurisdiction under
8 U.S.C. § 1252(a)(2)(D) to entertain a collateral attack on
the underlying removal order only if the petitioner can show
that he or she suffered a gross miscarriage of justice in the
initial immigration hearing.
Lopez argued that he suffered a gross miscarriage of
justice because the vacatur of his conviction made his
removal order “void ab initio.” The panel concluded that
this argument failed under Hernandez-Almanza v. INS, 547
F.2d 100 (9th Cir. 1976), superseded by statute on other
grounds as stated in Planes v. Holder, 652 F.3d 991 (9th Cir.
2011), and Vega-Anguiano v. Barr, 982 F.3d 542 (9th Cir.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LOPEZ VAZQUEZ V. GARLAND 3
2019). In Hernandez-Almanza, the petitioner was removed
based on a drug conviction and later obtained a nunc pro tunc
order vacating that conviction. This court rejected the
petitioner’s argument that his exclusion order was void,
holding that a valid exclusion order is not disturbed by post-
conviction relief and that, therefore, the petitioner failed to
meet the gross miscarriage of justice standard. In contrast,
in Vega-Anguiano, the petitioner was ordered removed
based on a valid conviction, but his conviction was expunged
before the government executed the removal order. The
court held that this was one of the rare cases in which a
collateral attack was permitted under the gross miscarriage
of justice standard.
In light of those precedents, the panel concluded that
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 justice based on
developments that call into question the original removal
order, but which occurred after the petitioner was removed
from this country. The panel also observed that this
approach was consistent with that of other circuits.
Separately, the panel concluded that Lopez could not
show a gross miscarriage of justice for another reason: he
was independently removable at the time of his underlying
proceedings for having entered the United States unlawfully.
Rejecting Lopez’s contention that his unlawful presence
charge was insufficient to guarantee his deportation, the
panel explained that Lopez’s speculation on this point was
insufficient to demonstrate a gross miscarriage of justice.
4 LOPEZ VAZQUEZ V. GARLAND
COUNSEL
David Froman (argued), Froman Law Firm, San Diego,
California, for Petitioner.
Rachel L. Browning (argued), Trial Attorney; Jessica E.
Burns, Senior Litigation Counsel; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
BRESS, Circuit Judge:
Following several unlawful reentries into this country,
Alejandro Lopez Vazquez (Lopez) petitions for review of a
Department of Homeland Security order reinstating his 1996
order of removal. Through his petition, Lopez mounts a
collateral attack on his underlying order of removal on the
ground that the drug conviction on which it was based has
since been vacated. He claims this invalidates his
reinstatement order, too.
In reviewing a reinstatement order, we have jurisdiction
under 8 U.S.C. § 1252(a)(2)(D) to entertain a collateral
attack on the underlying removal order only in cases of
“gross miscarriage of justice.” But we hold there was no
gross miscarriage of justice here. Lopez’s original removal
order had a valid legal basis both at the time it was issued
and when Lopez was later removed. Under our precedents,
that is sufficient reason for concluding that Lopez may not
collaterally attack his underlying removal order. We thus
dismiss Lopez’s petition for review.
LOPEZ VAZQUEZ V. GARLAND 5
I
Lopez, a citizen of Mexico, first entered the United
States unlawfully in January 1992. In 1995, he pleaded
guilty to possession of a controlled substance (cocaine) in
Utah state court. In 1996, an Immigration Judge (IJ) found
Lopez removable. The Board of Immigration Appeals (BIA)
dismissed Lopez’s appeal. Lopez was then removed from
the United States in February 1998. It is undisputed that at
the time Lopez’s original removal order was issued and later
executed, his Utah conviction was legally valid and provided
a proper basis for removing Lopez from the United States.
Over the next few months, Lopez tried to reenter the
United States illegally several times. It appears that Lopez
was apprehended in Salt Lake City in April 1998, removed
again to Mexico on May 22, 1998, and apprehended in the
United States again on May 27, 1998. This time, he was
convicted of illegal reentry, 8 U.S.C. § 1326(a), and served
six months in prison. Thereafter, DHS reinstated his
removal order, and he was removed again to Mexico on
November 30, 1998. At the latest by January 1, 2001, and
perhaps as early as May 2000, Lopez had again illegally
reentered this country. Lopez has since remained in the
United States illegally. He is now married to an American
citizen and has children who are citizens.
In 2014, a Utah state court granted Lopez’s motion to
withdraw his guilty plea and vacate his 1995 cocaine
conviction based on ineffective assistance of counsel and a
jurisdictional defect. Lopez then pleaded guilty to
possessing benzylfentanyl, in violation of Utah law.
Because benzylfentanyl is not listed in section 102 of the
Controlled Substances Act, 21 U.S.C. § 802, possessing it is
not a removable offense. See, e.g., Cheuk Fung S-Yong v.
Holder, 600 F.3d 1028, 1034 (9th Cir. 2010).
6 LOPEZ VAZQUEZ V. GARLAND
In August 2017, Lopez’s wife filed an immigration
petition on his behalf. Lopez also filed for adjustment of
status to permanent resident. In December 2017, however,
immigration enforcement officers arrested Lopez and sought
to reinstate his 1996 removal order.
Lopez requested asylum, but the asylum officer found
Lopez did not have a reasonable fear of persecution in
Mexico. An IJ affirmed that determination and the BIA
denied Lopez’s motion to reopen his removal proceedings
sua sponte as well as Lopez’s motion for reconsideration.
The Tenth Circuit dismissed Lopez’s petitions for review of
those decisions. See Lopez-Vazquez v. Barr, 769 F. App’x
591, 595 (10th Cir. 2019).
In the meantime, Lopez had petitioned this Court for
review of DHS’s reinstatement order. He argues that the
reinstatement order is invalid because the underlying order
of removal on which it is based was invalidated when the
Utah court vacated his conviction for cocaine possession. 1
II
Under 8 U.S.C. § 1231(a)(5), immigration authorities
may reinstate a prior order of removal if a non-citizen
reenters illegally. This “only requires proof that
(1) petitioner is an alien, (2) who was subject to a prior
removal order, and (3) who illegally reentered the United
1
The government argues that Lopez’s challenge is untimely because
he did not file his petition for review within 30 days of his original 1996
removal order. See 8 U.S.C. § 1252(b)(1). Circuit precedent now
forecloses that argument. See Vega-Anguiano v. Barr, 982 F.3d 542, 545
(9th Cir. 2019) (holding that a petitioner making a collateral attack on
his original order of removal need only file a petition for review within
30 days of the reinstatement order).
LOPEZ VAZQUEZ V. GARLAND 7
States.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495
(9th Cir. 2007) (en banc). Upon those findings, which we
may review, see id. at 495–96; 8 U.S.C. § 1252(a)(1), but
which are not in dispute here, “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).
Nonetheless, 8 U.S.C. § 1252(a)(2)(D) reinstates our
jurisdiction to review certain constitutional claims or
questions of law raised in a petition for review, including
review of reinstatement orders. Garcia de Rincon v. DHS,
539 F.3d 1133, 1137 (9th Cir. 2008). In the context of our
review of a reinstatement order, we have interpreted
§ 1252(a)(2)(D) to permit a limited collateral attack on the
original removal order on which the reinstatement order is
premised. See, e.g., Vega-Anguiano v. Barr, 982 F.3d 542,
544, 547 (9th Cir. 2019); Villa-Anguiano v. Holder, 727 F.3d
873, 875, 877 & n.3 (9th Cir. 2013); Garcia de Rincon,
539 F.3d at 1138.
The standard, however, is a high one: such a collateral
attack is allowed only “if the petitioner can show that he has
suffered a ‘gross miscarriage of justice’ in the initial
deportation proceeding.” Vega-Anguiano, 982 F.3d at 544
(quoting Garcia de Rincon, 539 F.3d at 1138). We have
described the “gross miscarriage of justice” standard as
imposing “strict limitations on collateral attacks on prior
removal orders.” Id. at 547. We have also said that the
circumstances in which such an attack would be appropriate
will be “rare” and “extremely limited.” Id. at 547, 551.
These observations are consistent with the statutory
scheme. When a non-citizen is removed from the United
States and reenters without permission, the government may
reasonably seek to rely on the original order of removal and
the process previously afforded. 8 U.S.C. § 1231(a)(5). As
8 LOPEZ VAZQUEZ V. GARLAND
we explained in Morales-Izquierdo, non-citizens “have no
constitutional right to force the government to re-adjudicate
a final removal order by unlawfully reentering the country.
Nor is the government required to expend vast resources on
extraneous procedures before reinstating a removal order
that has already been finalized and executed.” 486 F.3d at
498.
The immigration laws provide ample means for
challenging an order of removal. But once a non-citizen has
exhausted these procedures and his removal is effectuated,
“allowing an alien to manufacture an opportunity to contest
his earlier removal by reentering the country illegally”
would inspire violations of our nation’s immigrations laws.
Villa-Anguiano, 727 F.3d at 880. The gross miscarriage of
justice standard recognizes that the fair and disciplined
administration of our immigration system requires both a
measure of finality in prior adjudications and the creation of
disincentives against future law violation. See id.
Lopez argues that he suffered a gross miscarriage of
justice because the 1995 drug conviction underlying his
original removal order was vacated, making that order “void
ab initio.” This argument fails under our precedents. In
particular, two of our cases—Hernandez-Almanza v. INS,
547 F.2d 100 (9th Cir. 1976), superseded by statute on other
grounds as stated in Planes v. Holder, 652 F.3d 991, 995
(9th Cir. 2011), and Vega-Anguiano v. Barr, 982 F.3d 542(9th Cir. 2019)—demonstrate why Lopez cannot show a
gross miscarriage of justice.
In Hernandez-Almanza, the petitioner, a lawful
permanent resident, was removed based on his drug
conviction. 547 F.2d at 101–02. He then reentered the
United States illegally. Id. at 102. The government sought
to reinstate his prior removal order, but while those
LOPEZ VAZQUEZ V. GARLAND 9
proceedings were pending the petitioner obtained a nunc pro
tunc order vacating his drug conviction. Id. Like Lopez, the
petitioner argued that “since the state nunc pro tunc order
vacated his guilty plea and conviction as of the date of those
proceedings, his status as an excludable alien, which was
based on that conviction, is also void as of its original date
of entry.” Id.We disagreed. As relevant here, we held that “a valid
exclusion order based upon a final judgment is not disturbed
by a post-conviction attack upon that judgment.” Id. at 103.
The petitioner’s conviction “serve[d] as a valid basis” for his
removal order, and, therefore, the “post-conviction
expungement order by the state court did not affect the
validity of his exclusion.” Id. We thus rejected the
petitioner’s argument that he could meet the gross
miscarriage of justice standard, and that the later
expungement of his conviction “should erase all
consequences, including exclusion, which stemmed from the
now-vacated conviction.” Id. That determination controls
here.
Compare Hernandez-Almanza with Vega-Anguiano.
The petitioner in Vega-Anguiano was ordered removed
based on a valid, qualifying conviction, but his conviction
was expunged before the government executed the removal
order and returned him to Mexico (some ten years after an IJ
first ordered him removed). 982 F.3d at 544, 546–47. The
petitioner then reentered the United States illegally, and the
government sought to reinstate the petitioner’s prior order of
removal. Id. at 546–47.
We held that this was “one of the rare cases” in which a
collateral attack on the underlying order of removal was
permitted under the gross miscarriage of justice standard. Id.
at 547. That was because, we explained, when “an alien has
10 LOPEZ VAZQUEZ V. GARLAND
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 miscarriage of justice occurs.” Id. at 549.
We were careful to emphasize, however, that this was
consistent with Hernandez-Almanza, because in that case the
underlying order of removal remained valid at the time it was
issued and later executed. Id. at 548–49 (discussing
Hernandez-Almanza). We explained that “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.” Id. at 544, 549.
The distinction is a critical one. The expungement of
Vega-Anguiano’s conviction had eliminated “the legal
basis” for his removal order “by the time” the government
returned Vega-Anguiano to Mexico. Id. at 546, 549. There
is no comparable injustice when, as here, the removal order
was valid as of the time of removal and the petitioner seeks
to minimize his illegal reentry through a collateral attack on
his original removal order. In that instance, the rarely
satisfied gross miscarriage of justice standard is not met, and
the government’s interests in finality, deterring illegal
reentries, and promoting a stable immigration system
prevail.
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 justice based on
developments that call into question the original removal
order, but which occurred after the petitioner was removed
from this country. Id. at 548–49; Hernandez-Almanza,
547 F.2d at 103.
This approach is consistent with that of other circuits.
See, e.g., Sanchez-Gonzalez v. Garland, 4 F.4th 411, 416
LOPEZ VAZQUEZ V. GARLAND 11
(6th Cir. 2021) (declining to adopt the “gross miscarriage of
justice” standard, but explaining that the standard would not
apply regardless when petitioner’s conviction was “in
effect” “at the time” of his removal); Gonzalez-Cantu v.
Sessions, 866 F.3d 302, 306 (5th Cir. 2017) (explaining that
the “gross miscarriage of justice” standard is not met when
the removal order was not “clearly unlawful” at the time of
the original removal proceedings); Debeato v. Att’y Gen. of
U.S., 505 F.3d 231, 236 (3d Cir. 2007) (“[A] gross
miscarriage of justice has been found only when ‘the
individual should not have been deported based on the law
as it existed at the time of the original deportation.’”)
(emphasis omitted) (quoting Robledo-Gonzales v. Ashcroft,
342 F.3d 667, 682 n.13 (7th Cir. 2003)).
Finally, separate and apart from the fact that Lopez’s
Utah drug conviction provided a valid legal basis for
removal at the time his original removal order was entered
and executed, see Vega-Anguiano, 982 F.3d at 548–49,
Lopez cannot show a gross miscarriage of justice for another
reason: he was independently removable for having entered
the United States unlawfully. According to the
administrative record, and by his own admission, Lopez
entered the country without inspection in 1992. He was
charged with that violation, which also rendered him
removable under former 8 U.S.C. § 1251(a)(1)(B) (amended
in 1996). In dismissing his appeal of the removal order, the
BIA, in addition to citing Lopez’s Utah drug conviction, also
cited Lopez’s illegal entry, noting that the IJ “found the
respondent deportable based on . . . 8 U.S.C.
§[] 1251(a)(1)(B). . . .”
Lopez in his briefing responds that “the unlawful
presence charge was insufficient, from a practical
standpoint, to guarantee [his] deportation.” But Lopez’s
12 LOPEZ VAZQUEZ V. GARLAND
speculation on this point is insufficient to demonstrate a
gross miscarriage of justice. Lopez cannot meet that high
standard when it is apparent there was a “valid legal basis”
for his removal order, both when it was issued and executed.
Vega-Anguiano, 982 F.3d at 547.
* * *
For the foregoing reasons, the petition for review is
DISMISSED.