17 F.4th 1232
9th Cir.2021Background
- Alejandro Lopez Vazquez (Mexican citizen) was ordered removed in 1996 after a 1995 Utah conviction for cocaine possession; that conviction was valid when the 1996 order was issued and when he was removed in 1998.
- Lopez unlawfully reentered the U.S. multiple times; DHS repeatedly reinstated the 1996 removal order and removed him; he later remained in the U.S. without authorization and has U.S.-citizen family members.
- In 2014 a Utah court vacated Lopez’s 1995 cocaine conviction and he pleaded to possession of benzylfentanyl (not a federal controlled substance listed in 21 U.S.C. § 802), a conviction that does not render him removable.
- DHS sought to reinstate the 1996 removal order in 2017; Lopez sought asylum and administrative relief but lost those proceedings and petitioned this Court to review the reinstatement order.
- Lopez’s core claim: the 2014 vacatur of his drug conviction rendered the original 1996 removal order void ab initio and therefore he may collaterally attack the reinstated removal under 8 U.S.C. § 1252(a)(2)(D).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a collateral attack on a reinstatement order is permitted here | Lopez: vacatur of underlying conviction voids original order and shows a "gross miscarriage of justice" | Gov: collateral attacks are limited; petition filed timely and original order was valid when issued/executed | Court: collateral attack allowed only for "gross miscarriage of justice," and Lopez did not meet that standard; petition dismissed |
| Whether post-removal vacatur of conviction voids the original removal order | Lopez: state vacatur makes the 1996 order void ab initio | Gov: post-conviction vacatur does not disturb a removal order that was valid when entered and executed | Court: post-removal vacatur does not satisfy gross miscarriage standard; Hernandez-Almanza controls; vacatur after execution insufficient |
| Timeliness of petition for review | Lopez: petition filed within 30 days of reinstatement | Gov: petition untimely as to the original 1996 order | Court: precedents (e.g., Vega-Anguiano) foreclose gov’t timeliness argument; timeliness measured from reinstatement |
Key Cases Cited
- Vega-Anguiano v. Barr, 982 F.3d 542 (9th Cir. 2019) (defines "gross miscarriage of justice" collateral-attack exception and permits attack when order lacked legal basis at issuance/execution)
- Hernandez-Almanza v. INS, 547 F.2d 100 (9th Cir. 1976) (post-conviction vacatur does not disturb a removal order that was valid when issued and executed)
- Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008) (§1252(a)(2)(D) restores limited judicial review of certain reinstatement claims)
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc) (statutory framework for reinstatement and finality of prior removal orders)
- Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013) (emphasizes finality and deterrence in barring manufactured opportunities to reopen removal by illegal reentry)