Francisco Vega-Anguiano v. William Barr ( 2020 )

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 ORDER AND
General, AMENDED
Respondent. OPINION
On Petition for Review of an Order of
Immigration and Customs Enforcement
Argued and Submitted April 8, 2019
Seattle, Washington
Filed November 19, 2019
Amended November 24, 2020
Before: William A. Fletcher, Consuelo M. Callahan,
and Morgan Christen, Circuit Judges.
Order;
Opinion by Judge W. Fletcher;
Concurrence by Judge Christen;
Dissent by Judge Callahan
Concurrence in Order by Judge W. Fletcher;
Dissent from Order by Judge Bennett
2 VEGA-ANGUIANO V. BARR
SUMMARY*
Immigration
The panel filed (1) an order stating that the opinion,
concurrence, and dissent filed November 19, 2019 are
amended by the opinion, concurrence, and dissent filed
concurrently with the order, and denying on behalf of the
court a petition for rehearing en banc; and (2) an amended
majority opinion, concurrence, and dissent. In the amended
opinion, the panel granted Francisco Vega-Anguiano’s
petition for review of an order of Immigration and Customs
Enforcement (“ICE”) reinstating his prior order of removal,
and held that that: (1) 8 U.S.C. § 1252(b)(1) establishes a
thirty-day deadline for seeking review of reinstatement
orders; (2) because Vega-Anguiano timely challenged his
reinstatement order, the court had jurisdiction to consider a
collateral attack on his underlying removal order contending
that the execution of that order resulted in a gross miscarriage
of justice; (3) Vega-Anguiano established a gross miscarriage
of justice because his removal order lacked a valid legal basis
when it was executed; and (4) there is no diligence
requirement that limits the time during which a such a
collateral attack may be made.
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. For convictions
*
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
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 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 “misprision of a
felony,” and ICE reinstated his prior order of removal.
Vega-Anguiano filed a timely petition for review of the
reinstatement order, maintaining that the execution of the
removal order resulted in a “gross miscarriage of justice,” and
that he could therefore collaterally challenge the removal
order as part of his timely challenge to the reinstatement
order. The government contended that the court lacked
jurisdiction over Vega-Anguiano’s collateral attack on the
ground that it was untimely 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.
The panel held that § 1252(b)(1) establishes the time limit
for seeking review of reinstatement orders. The panel
explained that circuit precedent establishes that § 1252(a)(1),
which authorizes judicial review of a “final order of
removal,” also authorizes judicial review of reinstatement
orders. The panel next explained that § 1252(b)(1)
establishes the time for bringing a challenge to a “final order
4 VEGA-ANGUIANO V. BARR
of removal.” The panel concluded that the phrase “final order
of removal” in § 1252(b)(1) has the same meaning as the
identical phrase in § 1252(a)(1). The panel further noted that
there is no other statute that establishes a time limit for
seeking judicial review of a reinstatement order, that it is
inconceivable that no statute establishes that time limit, and
that it has been widely and appropriately assumed that
§ 1252(b)(1) establishes that time limit.
Because Vega-Anguiano timely filed his petition for
review of his reinstatement order, the panel held that it had
jurisdiction to consider any collateral attack reviewable under
§ 1252(a)(2)(D), which provides that the courts of appeal
have jurisdiction to consider constitutional claims and
questions of law raised upon a petition for review. Relying
on Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008),
the panel specifically held that it had jurisdiction to consider
Vega-Anguiano’s contention that the execution of his invalid
removal order resulted in a gross miscarriage of justice. The
panel explained that the BIA has held, in cases such as Matter
of Farinas, 12 I. & N. Dec. 467 (BIA 1967), 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. The panel noted that the BIA has
continued to apply Farinas, the court’s sister circuits have
followed it, and that this court’s case law is consistent with it.
The panel held that Vega-Anguiano had established a
gross miscarriage of justice because there was no valid legal
basis for his removal order at the time it was executed in
2008, explaining 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 held that the gross
miscarriage of justice standard does not include a diligence
VEGA-ANGUIANO V. BARR 5
requirement that limits the time during which a collateral
attack may be made based on a showing of gross miscarriage
of justice. 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 sixteen-year gap between his deportation and his
collateral challenge.
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
contended 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. 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, and that the 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
6 VEGA-ANGUIANO V. BARR
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
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. Judge Callahan
explained that the government’s failure to anticipate a request
for FFOA relief did not make the 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 misprision of a felony.
Concurring in the denial of rehearing en banc, Judge W.
Fletcher, joined by Judge Christen, responded to arguments
made in the dissent from the denial of the petition for
rehearing en banc. Judge W. Fletcher wrote that there were
three problems with his dissenting colleague’s conclusion that
the thirty-day time limits for bringing direct and collateral
challenges to an original removal order both run from the
same date—the date of entry of the original removal order.
First, that conclusion conflates direct and collateral
challenges; if the time for filing a direct and a collateral
challenge run from the same date, there is never a reason to
VEGA-ANGUIANO V. BARR 7
bring a collateral challenge. Second, it is not possible as a
practical matter to bring a challenge to a reinstatement order
within thirty days of the entry of the underlying removal
order; if § 1252(b)(1) does not provide a separate time period
for filing a petition for review of a reinstatement order,
running from the date of that order, no reinstatement order
can ever be challenged, on any ground. Third, if a collateral
challenge must be made within the same time period as a
direct challenge, the basis for some collateral attacks will not
yet exist, as shown by Vega-Anguiano’s case. In that respect,
Judge W. Fletcher wrote that, if his dissenting colleague and
the other circuits are right that a collateral challenge must be
brought within thirty days of the entry of the original removal
order, a challenge that they agree in theory is available,
cannot in fact be brought.
Dissenting from the denial of rehearing en banc, Judge
Bennett—joined by Judges Callahan, M. Smith, Ikuta, R.
Nelson, Bade, Collins, Lee, Bress, Hunsaker, Bumatay, and
VanDyke—wrote that eight other circuits think “order of
removal” means “order of removal,” but that the majority,
apparently unhappy with the statute Congress wrote, rewrote
“order of removal” as “reinstatement order.”
Judge Bennett wrote that the majority relied on three
inapposite sources. First, the majority claimed to follow
circuit precedent in reading § 1252(b)(1)’s “final order of
removal” to cover both a final removal order and a
reinstatement order, but contradicted itself by reading the
phrase as applying to only reinstatement orders. Second,
Judge Bennett wrote that the majority erred in concluding that
the court had never addressed whether the gross miscarriage
of justice standard includes a diligence component, and in
concluding that Farinas was controlling on that issue. Judge
8 VEGA-ANGUIANO V. BARR
Bennett explained that this court, in De Souza v. Barber,
263 F.2d 470 (9th Cir. 1959), held that there is a timeliness
requirement in this context. Further, Judge Bennett wrote
that Farinas was irrelevant; it was silent on the issue of
timeliness and, more importantly, § 1252(b)(1) circumscribes
this court’s jurisdiction, which is not defined by the BIA.
Third, Judge Bennett wrote that the majority’s reliance on
equitable principles to create an exception to a jurisdictional
rule imposed by Congress contravenes Supreme Court and
circuit precedent.
Judge Bennett also wrote that the majority’s decision will
lead to unjust outcomes and perverse incentives, noting that,
in Morales-Izquierdo, an en banc panel of this court warned
that “an alien who respects our laws and remains abroad after
he has been removed should have no fewer opportunities to
challenge his removal order than one who unlawfully reenters
the country despite our government’s concerted efforts to
keep him out.” Judge Bennett concluded that the majority
turns this obvious principle on its head and rewards those
who break the law, explaining that majority waives the thirty-
day deadline and gives the removed alien a second bite at the
apple, provided that he illegally reenters the country and is
subject to a reinstatement order, but that the alien with the
same claim who does not illegally reenter, however, gets no
such chance. Judge Bennett wrote that the facts here added
another layer of perversity because a prior panel of this court
affirmed the BIA’s denial of the motion to reopen on the
ground that Vega-Anguiano failed to establish due diligence.
Judge Bennett wrote that, under the majority’s rule that
diligence is not required, Vega-Anguiano can essentially
reverse the prior panel’s decision and get a third bite at the
apple.
VEGA-ANGUIANO V. BARR 9
COUNSEL
Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington, for Petitioner.
Todd J. Cochran (argued) and Robbin K. Blaya, Trial
Attorneys; Daniel E. Goldman and Bryan S. Beier, Senior
Litigation Counsel; John W. Blakeley, Assistant Director;
Joseph H. Hunt, Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
ORDER
The opinion, concurrence, and dissent filed November 19,
2019, and published at 942 F.3d 945 are amended by the
opinion, concurrence, and dissent filed concurrently with this
order.
With this amendment, Judges W. Fletcher and Christen
have voted to deny respondent’s petition for rehearing en
banc (Dkt. Entry 57). Judge Callahan has voted to grant the
petition for rehearing en banc.
The full court has been advised of the petition for
rehearing en banc. A judge requested a vote on whether to
rehear the matter en banc. The matter failed to receive a
majority of votes of the nonrecused active judges in favor of
en banc consideration. Fed. R. App. P. 35(f).
The petition for rehearing en banc is DENIED. No
further petitions for panel rehearing or rehearing en banc may
be filed.
10 VEGA-ANGUIANO V. BARR
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. He challenges the reinstatement order,
contending that the removal order was invalid when executed.
The conviction upon which that the removal order depended
was expunged before he was removed. The government
conceded at oral argument that the expungement removed the
legal justification for the removal order. Vega-Anguiano thus
maintains that the execution of the removal order resulted in
a “gross miscarriage of justice,” and that he may therefore
collaterally challenge the removal order as part of his timely
challenge to the reinstatement order. We agree and 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.
VEGA-ANGUIANO V. BARR 11
The government contends that we lack jurisdiction over
Vega-Anguiano’s collateral attack under § 1252(a)(1)
because, in its view, his collateral attack on his removal order
is untimely. We disagree.
A petition for review filed under § 1252(b)(1) triggers
judicial review and the exercise of jurisdiction under
§ 1252(a)(1). Because Vega-Anguiano filed his petition for
review of his reinstatement order under § 1252(b)(1), he may
bring any collateral attack authorized by § 1252(a)(1).
We know from Villa-Anguiano and Garcia de Rincon that
§ 1252(a)(1) authorizes judicial review of reinstatement
orders. We also know that § 1252(b)(1) establishes the time
limit for bringing a challenge under § 1252(a)(1). The
question is whether § 1252(b)(1) establishes the time limit not
only for challenging final orders of removal, but also for
challenging final reinstatement orders. The answer is “yes.”
The phrase “final order of removal” in § 1252(b)(1) refers to
both a final order of removal and a final reinstatement order.
Section 1252(a)(1) authorizes “[j]udicial review of a final
order of removal.” We have repeatedly held, beginning with
Castro-Cortez v. INS, 239 F.3d 1037, 1044 (9th Cir. 2001),
abrogated on other grounds by Fernandez-Vargas v.
Gonzales, 548 U.S. 30 (2006), that the phrase “final order of
removal” in § 1252(a)(1) covers both a final removal order
and a final reinstatement order. 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.” The
natural, indeed inescapable, reading of these immediately
adjoining statutory sections is that phrase “final order of
removal” in § 1252(b)(1) has the same meaning as the
identical phrase in § 1252(a)(1).
12 VEGA-ANGUIANO V. BARR
There is no other statute that establishes a time limit for
seeking judicial review of a reinstatement order. It is
inconceivable that no statute establishes that time limit, and
it has been widely and appropriately assumed that
§ 1252(b)(1) establishes the time limit for seeking review of
reinstatement orders. See, e.g., Ortiz-Alfaro v. Holder,
694 F.3d 955, 958 (9th Cir. 2012). Today, we hold rather
than merely assume that this is, in fact, the law.
Vega-Anguiano timely petitioned for review of his
reinstatement order under § 1252(b)(1). We therefore have
jurisdiction over his petition under § 1252(a)(1). In the
exercise of that jurisdiction, we may consider any collateral
attack authorized under § 1252(a)(2)(D). See Villa-Anguiano
v. Holder, 727 F.3d at 875. Specifically, as we wrote in
Garcia de Rincon, we have jurisdiction under § 1252(a)(1) to
consider a collateral attack in which a petitioner contends that
the execution of his invalid removal order resulted in a “gross
miscarriage of justice.”
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.
VEGA-ANGUIANO V. BARR 13
After his release from incarceration on the possession
conviction, Vega-Anguiano married his girlfriend, who was
a lawful permanent resident (and is now a U.S. citizen). Soon
thereafter, 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 took no steps
to remove Vega-Anguiano.
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
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.
14 VEGA-ANGUIANO V. BARR
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) (quotation marks and citations 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 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 a motion to
reopen his 1998 proceeding. He explained in the motion that
his 1991 conviction had been expunged in 1999. He argued
for equitable tolling 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-
VEGA-ANGUIANO V. BARR 15
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 2014, ICE reinstated Vega-Anguiano’s 1998 removal
order. Vega-Anguiano timely filed a petition for review of
the reinstatement order. In his petition, Vega-Anguiano
collaterally attacks the underlying removal order as a “gross
miscarriage of justice” on the ground that it was invalid when
executed. 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). Because the conviction on
which Vega-Anguiano’s removal was based had been
expunged in 1999, there was no valid legal basis for the
removal order at the time of its execution in 2008. Under
16 VEGA-ANGUIANO V. BARR
long-standing law, a removal in such circumstances is a
“gross miscarriage of justice.” We therefore conclude that
this is 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.” § 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(citation omitted).
The BIA has consistently held that “an 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
VEGA-ANGUIANO V. BARR 17
basis at the time of its issuance or at the time of its execution.
For example, in Farinas, 12 I. & N. at 472, the BIA held 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. However, two cases
decided shortly 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
18 VEGA-ANGUIANO V. BARR
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. See
In Re: Daniel Espino-Medina A.K.A. Daniel Espino, 2016
WL 1722509, at *2 (BIA Apr. 5, 2016) (“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.”) (citing Farinas,
12 I & N at 471–72) (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 occurs 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,
12 I & N 467); see also Debeato v. Attorney Gen. of U.S.,
VEGA-ANGUIANO V. BARR 19
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, 102 (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.” 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
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, the execution of his invalid removal order
resulted in a “gross miscarriage of justice.” 12 I. & N. at 472.
20 VEGA-ANGUIANO V. BARR
We have never addressed whether the gross miscarriage
of justice standard includes a diligence component. 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
miscarriage of justice occurs. Second, there is no diligence
requirement that limits the time during which a collateral
attack on the deportation or removal order may be made
based on a showing of gross miscarriage of justice.
The equitable concept that diligence should not be
demanded of individuals who were previously removed on an
invalid legal basis, and who, as a result, face adverse legal
consequences in new proceedings, is familiar. We have
endorsed this concept 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.
VEGA-ANGUIANO V. BARR 21
§ 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
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. The question, rather, is whether the
22 VEGA-ANGUIANO V. BARR
execution of the removal order—which was invalid at the
time of its execution—resulted in 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 resulted in 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.
We are aware that several of our sister circuits, in
addressing petitions for review of reinstatement orders, have
required challenges to underlying removal orders be made
within thirty days of the entry of the final order of removal.
See Luna-Garcia De Garcia v. Barr, 921 F.3d 559, 563–65
(5th Cir. 2019); Mejia v. Sessions, 866 F.3d 573, 589 (4th Cir.
2017); 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). However, none of these decisions
recognizes that § 1252(b)(1) applies to both petitions for
review of final orders of removal and petitions for review of
final reinstatement orders, with the consequence that both
kinds of petitions confer jurisdiction under § 1252(a)(1).
Further, in each of these decisions, petitioners alleged
constitutional violations in the removal procedures leading to
the entry of the final orders of removal. It would have been
difficult, to the point of impossibility, to collaterally
challenge the removal orders within thirty days in petitions
for review of the reinstatement orders. But see Mejia, 866
F.3d at 590 (“Mejia warns that our interpretation of
§ 1252(b)(1) . . . effectively ‘abolish[es] review of all
VEGA-ANGUIANO V. BARR 23
underlying orders in reinstatement,’ thereby raising ‘ “serious
constitutional problems” ’ . . . . Not so. Rather we think it
more than feasible that an individual removed to her home
country could illegally re-enter the United States, have the
original removal order reinstated by DHS, and petition for
review—all within a month’s time.” (alteration in original)
(citations omitted)). But it would have been possible to bring
direct challenges to these removal orders within thirty days of
their entry. That is not the case for Vega-Anguiano. It would
have been impossible for him to challenge the execution of
his removal order within thirty days of the entry of the order,
for his conviction was expunged a year later.
Vega-Anguiano does not dispute that he is subject to
removal, whether based on a reinstatement order or a new
removal order. But the practical difference between the two
kinds of orders is, for him, crucial. An alien subject to a new
order of removal is eligible for cancellation of removal based
on “exceptional and extremely unusual hardship” to
qualifying relatives. 8 U.S.C. § 1229b(b)(1). An alien
removed under a reinstatement order is ineligible for such
relief. 8 U.S.C. § 1231(a)(5). Vega-Anguiano remains
married to his U.S. citizen wife, and they now have four U.S.
citizen children together. His brief does not spell out the
nature and degree of hardship, but it indicates that if subject
to removal under a new order of removal he would seek
cancellation based on hardship.
Conclusion
Vega-Anguiano timely challenged his reinstatement order
under § 1252(b)(1), and we have jurisdiction under
§ 1252(a)(1). Collateral attacks on removal orders brought
under § 1252(a)(1) are extremely limited, but they are
24 VEGA-ANGUIANO V. BARR
available when an order results in a “gross miscarriage of
justice.” Based on Farinas and other cases, we conclude that
Vega-Anguiano has shown a gross miscarriage of justice
because his 1998 removal order was invalid at the time of his
removal in 2008. We therefore hold that the reinstatement
order was improper and grant the petition for review. We do
not reach Vega-Anguiano’s regulatory and due process
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.
VEGA-ANGUIANO V. BARR 25
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).
26 VEGA-ANGUIANO V. BARR
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
VEGA-ANGUIANO V. BARR 27
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.
28 VEGA-ANGUIANO V. BARR
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
VEGA-ANGUIANO V. BARR 29
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.
30 VEGA-ANGUIANO V. BARR
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
VEGA-ANGUIANO V. BARR 31
when he was removed in 2008 or now. Accordingly, I
dissent.4
W. FLETCHER, Circuit Judge, joined by CHRISTEN,
Circuit Judge, concurring in the denial of rehearing en banc:
Our opinion in this case stands on its own. We write here
to respond to arguments made by our colleague, who dissents
from our court’s denial of the petition for rehearing en banc.
In 1987, at age thirteen or fourteen, Francisco Vega-
Anguiano entered the United States without inspection. At
age fourteen, he was arrested for possession of cocaine. As
a condition of non-prosecution, Vega-Anguiano was required
to take drug classes. In 1991, Vega-Anguiano was arrested
for driving without a license. A record check revealed that he
had not completed his drug classes. As a result, the
possession charge was revived; Vega-Anguiano pleaded
guilty; and he was incarcerated. Upon his release from
incarceration, Vega-Anguiano married his girlfriend, who
was then a lawful permanent resident (and is now a U.S.
citizen). Soon thereafter, Vega-Anguiano and his wife sought
to legalize his status.
Vega-Anguiano’s Application for Adjustment of Status
was denied because of his 1991 possession conviction. In
4
Along with our denial of the petition for rehearing en banc, the panel
majority issues a revised opinion. Rather than revise my dissent penned
in response to the panel majority’s initial opinion, I stand by my initial
dissent and join in Judge Bennett’s dissent from our denial of the petition
for rehearing en banc.
32 VEGA-ANGUIANO V. BARR
December 1998, he was ordered removed, based on the
conviction. In September 1999, while he was still in the
United States, his possession conviction was expunged under
California Penal Code § 1203.4, a rehabilitative statute. The
government conceded at oral argument that the expungement
satisfied the criteria of the Federal First Offender Act and
eliminated the basis Vega-Anguiano’s removal order.
Despite the expungement and resulting invalidity of the 1998
removal order, Vega-Anguiano was removed in 2008. Id.
Vega-Anguiano re-entered the United States illegally
several weeks later. In 2014, the government reinstated
Vega-Anguiano’s 1998 removal order. Vega-Anguiano
petitioned for review of the reinstatement order within thirty
days of its entry.
Vega-Anguiano concedes that he is subject to removal,
whether based on a new removal order or on the
reinstatement order. But the practical difference between the
two kinds of orders is, for him, crucial. An alien subject to a
new order of removal is eligible for cancellation of removal
based on “exceptional and extremely unusual hardship” to
qualifying relatives. 8 U.S.C. § 1229b(b)(1). An alien
removed under a reinstatement order is ineligible for such
relief. 8 U.S.C. § 1231(a)(5). Vega-Anguiano remains
married to his U.S. citizen wife, and they have four U.S.
citizen children together. In his brief to us, he indicated that
if subject to removal under a new order of removal he would
seek cancellation based on hardship.
The question before us was whether, as part of a timely
challenge to his reinstatement order, Vega-Anguiano can
collaterally challenge the underlying removal order. We
VEGA-ANGUIANO V. BARR 33
concluded that Vega-Anguiano could bring such a collateral
challenge.
Our dissenting colleague argues that we have misread
8 U.S.C. § 1252(b)(1). He contends that Vega-Anguiano has
not timely filed his petition for review of a reinstatement
order and that he therefore cannot bring a collateral challenge
to the reinstated invalid removal. We disagree.
There are two related questions. The first is a narrow
textual statutory question, divorced from context and purpose.
The second is a broader statutory question that takes into
account context and purpose. We address them in turn.
The first question focuses solely on the text of
§ 1252(b)(1). 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.” The question is whether the term
“order of removal” includes an order reinstating a removal
order. Stated otherwise, the question is whether § 1252(b)(1)
establishes the thirty-day time limit within which a petition
for review of a reinstatement order must be filed. As we
explained in our opinion, the answer has to be “yes.”
It is uncontested that there is a thirty-day time limit for
filing a petition for review of a reinstatement order. It is also
uncontested that there is a statutory provision setting a time
limit for that petition. There is no provision other than
§ 1252(b)(1) that can possibly be read to provide the limit.
Our dissenting colleague does not, and cannot, point to a
statutory provision other than § 1252(b)(1) that provides a
time limit.
34 VEGA-ANGUIANO V. BARR
The second question is whether, in light of context and
purpose, the most plausible reading of § 1252(b)(1) is that it
provides a time limit for a petition for review of a
reinstatement order that is different from the time limit for a
petition for review of the original removal order. As we also
explained in our opinion, the answer has to be “yes.” Our
dissenting colleague, as well as circuit court decisions that he
cites, agree that a petitioner challenging a reinstatement order
may, as part of that challenge, bring a collateral challenge to
the original removal order. But they conclude that the
petition for review of the reinstatement order must be filed
within thirty days of the original removal order. That is, they
conclude that the thirty-day time limits for bringing direct and
collateral challenges to an original removal order both run
from the same date—the date of entry of the original removal
order.
Our colleague writes:
Eight other circuits have faithfully applied
§ 1252(b)(1)’s thirty-day deadline to the
underlying “order of removal,” as the statute
clearly and unambiguously requires—most
recently the Eighth Circuit in Lara-Nieto v.
Barr, 945 F.3d 1054 (8th Cir. 2019). That
court surveyed the decisions of the other
circuits, finding that they ‘have almost
uniformly held that’ to collaterally challenge
a removal order on reinstatement, ‘an alien
must file his petition for review within thirty
days of the date of the removal order, not
within 30 days of the order reinstating the
removal order.’ Id. at 1060 n.4; [citing cases].
VEGA-ANGUIANO V. BARR 35
Diss. Op. at 43–44.
There are three problems with the conclusion of our
colleague and the other circuits. First, the conclusion
conflates direct and collateral challenges. Any challenge to
an original order brought within thirty days of its entry under
§ 1252(b)(1) is necessarily a direct rather than a collateral
challenge. If the time for filing a direct and a collateral
challenge run from the same date, there is never a reason to
bring a collateral challenge. Collateral challenges are more
limited than direct challenges. No litigant, given a choice
between a direct and collateral challenge, would ever choose
a collateral challenge.
Second, it is not possible as a practical matter to bring a
challenge to a reinstatement order within thirty days of the
entry of the underlying removal order. If § 1252(b)(1) does
not provide a separate time period for filing a petition for
review of a reinstatement order, running from the date of that
order, no reinstatement order can ever be challenged, on any
ground. The Fourth Circuit has made a heroic argument to
the contrary, contending that a challenge to a reinstatement
order can feasibly be brought within thirty days of the entry
of the original removal order: “[W]e think it more than
feasible that an individual removed to her home country
could illegally re-enter the United States, have the original
order reinstated by DHS, and petition for review—all within
a month’s time.” Mejia v. Sessions, 866 F.3d 573, 590 (4th
Cir. 2017). Simply to read the argument is to understand
why, in the real world, it is fanciful.
Finally, if a collateral challenge to a removal order must
be made within the same time period as a direct challenge, the
basis for some collateral attacks will not yet exist. The case
36 VEGA-ANGUIANO V. BARR
before us is an example. When the original removal order
was entered against Vega-Anguiano in 1998, it was valid.
Any challenge brought within thirty days of its entry would
necessarily have failed. A year later, the possession
conviction was expunged. The expungement removed the
legal basis for the removal order, but by this time, more than
thirty days had passed since its entry. If our dissenting
colleague and the other circuits are right that a collateral
challenge must be brought within thirty days of the entry of
the original removal order, a challenge that they agree in
theory is available, cannot in fact be brought.
***
The government in this case has reinstated a concededly
invalid removal order. Vega-Anguiano has challenged the
reinstatement based on the invalidity of the reinstated order.
Our colleague does not dispute that a timely filed
challenge to a reinstatement order under § 1252(b)(1) allows
the exercise of jurisdiction under § 1252(a)(1). Nor does he
dispute that in the exercise of jurisdiction under § 1252(a)(1)
a court may consider any collateral attack authorized under
§ 1252(a)(2)(D). Nor, finally, does he dispute that a
collateral attack under § 1252(a)(2)(D) may include a
challenge to a removal order that resulted in a “gross
miscarriage of justice.” Our colleague disputes only our
conclusion that Vega-Anguiano timely filed a challenge to his
reinstatement order under § 1252(b)(1). For the reasons
stated above and in our opinion, we disagree with our
colleague on this point.
VEGA-ANGUIANO V. BARR 37
BENNETT, Circuit Judge, with whom CALLAHAN,
M. SMITH, IKUTA, R. NELSON, BADE, COLLINS, LEE,
BRESS, HUNSAKER, BUMATAY, and VANDYKE, Circuit
Judges, join, dissenting from the denial of rehearing en banc:
This case turns on a straightforward statute. So plain is
the statutory text that all eight other circuits that have
interpreted the statute reached the same conclusion. The
panel majority reached the contrary conclusion.1 I
respectfully dissent from our failure to take this case en banc.
Under the Immigration and Nationality Act (“INA”),
when an alien is ordered removed and seeks to challenge the
removal, “[t]he petition for review must be filed not later than
30 days after the date of the final order of removal.” 8 U.S.C.
§ 1252(b)(1) (emphasis added). If a removed alien illegally
reenters the country, the government may opt for an
expedited removal process by issuing a reinstatement order
that gives effect to the original order of removal.2 See
8 U.S.C. § 1231(a)(5).
The question is the following: When there is both an
original order of removal and a new reinstatement order, what
does “order of removal” in § 1252(b)(1) mean? Our sister
circuits think “order of removal” means “order of removal.”
The majority, apparently unhappy with the statute Congress
1
Judge Callahan agreed with our sister circuits and dissented.
2
Reinstatements comprise about forty percent of total removals.
See Dept. of Homeland Sec., Immigration Enforcement Actions:
2018 Annual Flow Report at 9 (Oct. 2019), available at
https://www.dhs.gov/sites/default/files/publications/immigration-
statistics/yearbook/2018/enforcement_actions_2018.pdf (last visited on
October 10, 2020).
38 VEGA-ANGUIANO V. BARR
wrote, rewrites “order of removal” as “reinstatement order.”
The opinion then works backwards to rationalize the rewrite
through a series of inaccurate and internally inconsistent
statements. No wonder our court is on the solitary side of an
eight-to-one circuit split.
I.
Francisco Javier Vega-Anguiano is a native and citizen of
Mexico. In 1987, he entered the United States without
inspection. In 1991, he was convicted of possession of
cocaine in violation of California law. In 1998, an
immigration judge (“IJ”) ordered him removed for having
been convicted of a controlled substance violation. He filed
an appeal to the Board of Immigration Appeals (“BIA”), and
the BIA denied it as untimely. Vega-Anguiano did not seek
judicial review in 1998.
In 1999, when Vega-Anguiano was still in the United
States, his cocaine conviction was expunged under a
California rehabilitative statute.3 See Cal. Penal Code
§ 1203.4. He did not move to reopen or notify the
immigration authorities of the expungement. Vega-Anguiano
did not seek judicial review in 1999.
In 2008, Immigration and Customs Enforcement arrested
Vega-Anguiano and removed him to Mexico under the 1998
removal order. Vega-Anguiano did not seek judicial review
in 2008. Nor did he inform the government that the 1998
removal order was based on an expunged conviction.
3
The expungement was not based on any claim that Vega-Anguiano
had not committed the crime.
VEGA-ANGUIANO V. BARR 39
Within a few weeks of his removal, Vega-Anguiano
illegally reentered the United States. In August 2013, he was
arrested for his involvement in a cockfighting venture and
charged with illegal gambling business, conspiracy to violate
the Animal Welfare Act, and unlawful animal fighting
venture. Those charges were dismissed, but he pleaded guilty
to misprision of a felony (related to the cockfighting) in
violation of 18 U.S.C. § 4.
In November 2013, Vega-Anguiano moved to reopen his
1998 removal proceeding, explaining that his 1991 conviction
had been expunged and contending that his former attorneys
had provided him with ineffective assistance. The BIA
denied the motion as untimely. A prior panel of our court
affirmed the BIA’s denial, explaining that the “BIA did not
abuse its discretion in denying Vega-Anguiano’s motion to
reopen as untimely where it was filed more than 14 years
after the order of removal became final, and Vega-Anguiano
failed to establish he acted with the due diligence required for
equitable tolling of the filing deadline.”
In February 2014, the Department of Homeland Security
reinstated the 1998 order of removal, finding that Vega-
Anguiano had illegally reentered the United States after
having been previously removed. Vega-Anguiano petitioned
our court for review in 2015. His petition sought review of
two orders: direct review of the 2014 reinstatement order and
collateral review of the 1998 removal order.
Without reviewing the reinstatement order, the panel
majority granted Vega-Anguiano’s petition on the ground that
the 1998 removal order was based on an expunged
conviction.
40 VEGA-ANGUIANO V. BARR
II.
The panel majority impermissibly expands our court’s
jurisdiction. The statute governing petitions for review is
simple and straightforward: “The petition for review must be
filed not later than 30 days after the date of the final order of
removal.” 8 U.S.C. § 1252(b)(1). The thirty-day deadline
rule is “mandatory and jurisdictional, because it is imposed
by statute.” Magtanong v. Gonzales, 494 F.3d 1190, 1191
(9th Cir. 2007) (per curiam) (citation omitted). Under
§ 1252(b)(1), our court lacks jurisdiction to review untimely
challenges to removal orders.
Vega-Anguiano’s petition for review was filed in
2015—about seventeen years after the final order of removal
was issued. The majority nevertheless concludes that Vega-
Anguiano’s challenge was timely under § 1252(b)(1), and
that our court has jurisdiction over his 2015 challenge to the
1998 removal order.
Despite § 1252(b)(1)’s unambiguous thirty-day time limit
that runs from “the date of the final order of removal,” the
majority reads § 1252(b)(1) as requiring only that the
reinstatement order be challenged within thirty days of
becoming final. Majority Opinion at 11. According to the
majority, Vega-Anguiano’s 2015 collateral challenge to the
1998 removal order was timely because it was made within
thirty days of the reinstatement order. Id. at 11 (“Because
Vega-Anguiano filed his petition for review of his
reinstatement order under § 1252(b)(1), he may bring any
collateral attack [of the removal order] authorized by
§ 1252(a)(1).”). In other words, on reinstatement,
§ 1252(b)(1)’s “order of removal” does not actually mean
orders of removal but refers to reinstatement orders instead.
VEGA-ANGUIANO V. BARR 41
A reinstatement order is not a removal order, and the two
are neither synonymous nor interchangeable. “Congress has
defined an order of removal as ‘the order’ of the IJ
‘concluding that the alien is deportable or ordering
deportation.’” Abdisalan v. Holder, 774 F.3d 517, 523 (9th
Cir. 2014) (en banc) (footnote omitted) (quoting 8 U.S.C.
§ 1101(a)(47)(A)). Before issuing an order of removal, an
immigration judge must determine (i) “whether the individual
is removable” and (ii) “whether the individual is otherwise
eligible for relief from removal.” Morales-Izquierdo v.
Gonzales, 486 F.3d 484, 491 (9th Cir. 2007) (en banc). By
contrast, reinstatement of removal is a summary procedure
for aliens who have already been removed in the past. If “an
alien has reentered the United States illegally after having
been removed or having departed voluntarily, under an order
of removal,” an immigration officer issues a reinstatement
order. 8 U.S.C. § 1231(a)(5). The reinstatement order does
not reissue a removal order. Rather, it restores “the prior
order of removal . . . from its original date,” and “the alien
shall be removed under the prior order.” Id.An alien subject to reinstatement may petition for judicial
review of the reinstatement order. Castro-Cortez v. INS,
239 F.3d 1037, 1043–44 (9th Cir. 2001), abrogated on other
grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30(2006). Our review of the reinstatement order is “limited to
confirming the agency’s compliance with the reinstatement
regulations.” Garcia de Rincon v. Dep’t of Homeland Sec.,
539 F.3d 1133, 1137 (9th Cir. 2008). On reinstatement,
collateral review of the underlying removal order is barred by
statute. The INA provides that “the prior order . . . is not
subject to being reopened or reviewed.” 8 U.S.C.
§ 1231(a)(5). But our court recognizes a narrow exception
42 VEGA-ANGUIANO V. BARR
for a “gross miscarriage of justice” in the underlying removal
proceeding. Garcia de Rincon, 539 F.3d at 1138.4
Even under the exception, § 1252(b)(1)’s deadline still
applies, and courts lack jurisdiction unless the petition for
review was filed within “30 days after the date of the final
order of removal.” 8 U.S.C. § 1252(b)(1). The majority
acknowledges that § 1252(b)(1) applies but does not apply it
as Congress wrote it. By crossing out the statutory text of
“order of removal” and replacing it with “reinstatement
order,” the majority deems a seventeen-year-old challenge
timely under a thirty-day deadline.
The majority attempts to distract attention from its
statutory rewrite by confusing the issue: “The question is
whether § 1252(b)(1) establishes the time limit not only for
challenging final orders of removal, but also for challenging
final reinstatement orders. The answer is ‘yes.’” Majority
Opinion at 11. That is not the relevant question. There is no
dispute that a petitioner must challenge a reinstatement order
within thirty days of the reinstatement order becoming final,
and that Vega-Anguiano timely challenged the 2014
reinstatement order. But the majority expressly does not
review the reinstatement order. See id. at 23–24. Instead, the
majority reviews Vega-Anguiano’s 2015 challenge to the
1998 removal order and concludes that the removal order was
invalid when executed. See id. at 23–24. As the majority
4
In addition to asking us to apply § 1252(b)(1) as written, the
government’s rehearing petition also asked us to overrule Garcia de
Rincon. PFREB at 2. My dissent here is not based on our failure to do so.
The majority’s decision is wrong even if Garcia de Rincon was correctly
decided. But I anticipate that the government may continue to argue that
Garcia de Rincon should be overruled.
VEGA-ANGUIANO V. BARR 43
recognizes, Ҥ 1252(b)(1) establishes the time limit not only
for challenging final orders of removal, but also for
challenging final reinstatement orders.” Id. at 11. Here, it is
irrelevant that Vega-Anguiano timely challenged the
reinstatement order that the majority does not review. Vega-
Anguiano’s challenge to the order that the majority does
review—the 1998 removal order—was made seventeen years
after that order became final, and it was therefore untimely
under § 1252(b)(1).5
Eight other circuits have faithfully applied § 1252(b)(1)’s
thirty-day deadline to the underlying “order of removal,” as
the statute clearly and unambiguously requires—most
recently the Eighth Circuit in Lara-Nieto v. Barr, 945 F.3d
1054 (8th Cir. 2019). That court surveyed the decisions of
the other circuits, finding that they “have almost uniformly
held that” to collaterally challenge a removal order on
reinstatement, “an alien must file his petition for review
within 30 days of the date of the underlying removal order,
not within 30 days of the date of the order reinstating the
removal order.” Id. at 1060 n.4; see also Verde-Rodriguez v.
Att’y Gen. U.S., 734 F.3d 198, 203 (3d Cir. 2013); Mejia v.
Sessions, 866 F.3d 573, 589 (4th Cir. 2017); Luna-Garcia de
Garcia v. Barr, 921 F.3d 559, 565 (5th Cir. 2019); Moreno-
5
Further, the majority incorrectly cites our decision in Villa-Anguiano
v. Holder, 727 F.3d 873 (9th Cir. 2013), to support the proposition that
“[i]n the exercise of [jurisdiction over challenges to reinstatement orders],
we may consider any collateral attack authorized under § 1252(a)(2)(D).”
Majority Opinion at 12 (emphasis added) (citing Villa-Anguiano, 727 F.3d
at 875). In Villa-Anguiano, we did not consider a collateral attack and
expressly stated that “[b]ecause this case does not directly involve a
challenge to the [underlying removal] order, we need not decide whether
§ 1252(b)(1) would preclude such review.” 727 F.3d at 879 n.4 (cross-
reference omitted).
44 VEGA-ANGUIANO V. BARR
Martinez v. Barr, 932 F.3d 461, 465 (6th Cir. 2019); Villa v.
Barr, 924 F.3d 370, 374 (7th Cir. 2019); Cordova-Soto v.
Holder, 659 F.3d 1029, 1032 (10th Cir. 2011); Avila v. U.S.
Att’y Gen., 560 F.3d 1281, 1285 (11th Cir. 2009) (per
curiam).6
“But see,” the court noted, the Ninth Circuit’s opinion in
Vega-Anguiano. Lara-Nieto, 945 F.3d at 1060 n.4.
III.
Recognizing that its novel interpretation has no support in
the text, the majority relies on three inapposite sources.
1. The majority opinion states that in Castro-Cortez v.
INS, we held “that the phrase ‘final order of removal’ in
§ 1252(a)(1) covers both a final removal order and a final
6
The majority acknowledges some of these cases but states that “none
of these decisions recognizes that § 1252(b)(1) applies to both petitions for
review of final orders of removal and petitions for review of final
reinstatement orders.” Majority Opinion at 22. In other words, the
majority faults our sister circuits for not making the same irrelevant point
that the majority does. The relevant question in those cases (and in this
case) is whether the petitioner’s challenge to the underlying removal order
was timely. There is no need to apply § 1252(b)(1) to the reinstatement
order if the reinstatement order is not under review. By contrast, when
courts review both the reinstatement order and the removal order, they
require that each order under review be timely challenged. See Moreno-
Martinez, 932 F.3d at 464 (explaining that the court had “jurisdiction to
hear Petitioner’s due-process challenge to the reinstatement order,” but
“lack[ed] jurisdiction to review Moreno-Martinez’s . . . removal order,
because that challenge is time-barred” by 8 U.S.C. § 1252(b)(1));
Cordova-Soto, 659 F.3d at 1031–32 (reviewing timely challenge to
reinstatement order but declining to review untimely challenge to
underlying removal order).
VEGA-ANGUIANO V. BARR 45
reinstatement order.” Majority Opinion at 11. The majority
claims that it follows Castro-Cortez to read § 1252(b)(1)’s
“final order of removal” in the same way. Majority Opinion
at 11 (“The natural, indeed inescapable, reading of these
immediately adjoining statutory sections is that phrase ‘final
order of removal’ in § 1252(b)(1) has the same meaning as
the identical phrase in § 1252(a)(1).”).
But in its analysis, the majority contradicts itself and
reads § 1252(b)(1) in a strikingly different way. The majority
does not read “order of removal” in § 1252(b)(1) as applying
to both removal orders and reinstatement orders. Rather, the
majority reads “order of removal” as applying to only
reinstatement orders. According to the majority, “Vega-
Anguiano timely petitioned for review of his reinstatement
order under § 1252(b)(1),” so the court may consider his
seventeen-year-old collateral challenge to the removal order.
Id. at 4. Under the majority’s analysis, § 1252(b)(1) simply
does not apply to the final order of removal.
As the majority opinion notes, Castro-Cortez interpreted
§ 1252(a)(1), which establishes our jurisdiction to review a
“final order of removal.” 8 U.S.C. § 1252(a)(1). In Castro-
Cortez, we read “final order of removal” broadly to include
reinstatement orders in addition to removal orders. Castro-
Cortez, 239 F.3d at 1043–44. Thus, our court has jurisdiction
over both reinstatement orders and orders of removal. But in
the reinstatement context, the majority reads § 1252(b)(1)’s
“order of removal” to exclude actual removal orders. Had the
majority truly interpreted “order of removal” as including
“both” types of orders, it would have applied § 1252(b)(1)’s
46 VEGA-ANGUIANO V. BARR
thirty-day deadline to the 1998 removal order and held that
Vega-Anguiano’s 2015 challenge was untimely.7
2. Ignoring our own precedent and relying on a BIA
decision, the majority opinion states: “We have never
addressed whether the gross miscarriage of justice standard
includes a diligence component. The controlling BIA
decision is [Matter of] Farinas[, 12 I. & N. Dec. 467 (BIA
1967)].” Majority Opinion at 11 (emphasis added).
This statement is wrong. In De Souza v. Barber, 263 F.2d
470 (9th Cir. 1959), we did address whether there is a
timeliness requirement that can bar a collateral attack in
reinstatement proceedings based on a purported gross
miscarriage of justice, and we held that there is. Like Vega-
Anguiano, De Souza did not seek judicial review of his
underlying removal order until he raised a collateral
challenge on reinstatement. Id. at 474. His petition for
review was filed twenty-six years after the removal order but
just three days after the reinstatement order. Id. at 473–74.
And like Vega-Anguiano, De Souza argued that he had
suffered a gross miscarriage of justice because the original
removal order was legally invalid.
Unlike the majority here, De Souza declined to “disinter
[the] first deportation order which was issued [twenty-six
years before the collateral challenge] and examine the
7
Our sister circuits have their own versions of Castro-Cortez that
allow judicial review of the reinstatement order itself. But no other circuit
confuses “both” and “only” like the majority does. See, e.g., Verde-
Rodriguez, 734 F.3d at 202 (citing Debeato v. Att’y Gen. U.S., 505 F.3d
231, 234–35 (3d Cir. 2007)); Moreno-Martinez, 932 F.3d at 463 (citing
Villegas de la Paz v. Holder, 640 F.3d 650, 654 (6th Cir. 2010)).
VEGA-ANGUIANO V. BARR 47
evidence on which it was based.” Id. at 474. Despite that
there was no statute imposing a thirty-day deadline when De
Souza was decided, our court still held that De Souza’s
collateral challenge was untimely.
The majority opinion makes no mention of De Souza.
Even if De Souza did not exist, Farinas is irrelevant. Farinas
was silent on the relevant issue—timeliness. More
importantly, § 1252(b)(1) circumscribes our jurisdiction,
which is not defined by the BIA.
3. The majority also cites the “equitable concept that
diligence should not be demanded of individuals who were
previously removed on an invalid legal basis,” and applies
this equitable concept by pointing out that Vega-Anguiano
would not be able to challenge his 1998 removal order if the
statutory deadline applied.8 Majority Opinion at 20, 23.
Even assuming this equitable principle exists, it is
irrelevant. “Judicial review provisions” of the INA are
“jurisdictional in nature and must be construed with strict
fidelity to their terms.” Stone v. INS, 514 U.S. 386, 405
(1995). “This is all the more true of statutory provisions
specifying the timing of review”—including § 1252(b)(1)—
and “time limits are . . . mandatory and jurisdictional.” Id.
(citation and internal quotation marks omitted). The
majority’s reliance on equitable ideas directly contravenes the
Supreme Court’s instruction that mandatory time limits “are
8
The majority contends that by applying § 1252(b)(1) as written,
some collateral challenges would be made more difficult, while Vega-
Anguiano’s particular challenge would be impossible. Majority Opinion
at 22–23. There is of course no requirement that § 1252(b)(1) be read to
guarantee that Vega-Anguiano’s petition can be granted.
48 VEGA-ANGUIANO V. BARR
not subject to equitable tolling,” id., and our own precedent
that “courts lack the authority to create equitable exceptions”
to the jurisdictional rule imposed by Congress. Magtanong,
494 F.3d at 1191.
IV.
The majority’s decision will lead to unjust outcomes and
perverse incentives. In Morales-Izquierdo, an en banc panel
of our court warned that “an alien who respects our laws and
remains abroad after he has been removed should have no
fewer opportunities to challenge his removal order than one
who unlawfully reenters the country despite our
government’s concerted efforts to keep him out.”9 486 F.3d
at 498. The majority’s decision turns this obvious principle
on its head and rewards those who break the law.
We routinely deny petitions for review that do not meet
§ 1252(b)(1)’s thirty-day deadline. The majority’s decision
waives that timeliness requirement and gives the removed
alien a second bite at the apple, provided that he illegally
reenters the country and is subject to a reinstatement order.
See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 44 (2006)
(noting that the “predicate action” for reinstatement is the
alien’s “indefinitely continuing violation” of unlawfully
remaining in the country). The alien with the same claim
who does not illegally reenter, however, gets no such chance.
9
We also aptly noted: “While aliens have a right to fair procedures,
they 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.” Morales-Izquierdo, 486 F.3d at 498.
VEGA-ANGUIANO V. BARR 49
The facts here add another layer of perversity. Vega-
Anguiano has already come before our court: In 2014, he
sought judicial review of the BIA’s denial of his untimely
motion to reopen. He requested equitable tolling of the
deadline for a motion to reopen, explaining that his “1991
simple possession was expunged pursuant to California’s
rehabilitative statute,” and arguing that the “conviction may
not form the basis for any finding of inadmissibility or
deportability.” A prior panel of our court affirmed the BIA’s
denial of the motion to reopen, explaining that it was filed
fourteen years too late and that Vega-Anguiano failed to
establish that he acted with due diligence.
Under the majority’s rule, due diligence is not required.
Vega-Anguiano can essentially reverse the prior panel’s
decision and get a third bite at the apple, only because of his
illegal reentry.
* * *
An eight-to-one circuit split should give us pause. The
panel majority’s decision is wrong not because it is an outlier.
But it is an outlier because our sister circuits correctly read an
unambiguous statute to mean what it says, while the majority
ignores the statutory text altogether. We should have taken
the case en banc to correct this error ourselves.