982 F.3d 542
9th Cir.2019Background
- In 1991 Vega‑Anguiano pleaded guilty to simple possession of cocaine; an IJ ordered him removed in 1998 based on that conviction, and his counsel failed to appeal.
- In September 1999 California expunged the 1991 conviction under Penal Code § 1203.4; the government conceded at oral argument that Vega‑Anguiano met the Federal First Offender Act (FFOA) criteria upon that expungement.
- ICE removed him to Mexico in February 2008 pursuant to the 1998 order (the government had taken no removal steps earlier); he then illegally reentered the U.S.
- In November 2013 he moved to reopen the 1998 proceedings (BIA denied as untimely); in January 2014 he was convicted of misprision of a felony, and in February 2014 ICE reinstated the 1998 removal order.
- Vega‑Anguiano filed a timely petition for review of the reinstatement, collaterally attacking the underlying 1998 order as a "gross miscarriage of justice" because the predicate conviction had been expunged years before his 2008 removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under 8 U.S.C. § 1252(b)(1) to review collateral attack during review of a reinstatement order | A timely petition challenging the reinstatement suffices; “order of removal” in §1252(b)(1) includes reinstatement orders | Challenge to the 1998 order is untimely under §1252(b)(1)’s 30‑day rule, so court lacks jurisdiction to review the underlying order | Court held it has jurisdiction: §1252(b)(1)’s "order of removal" covers reinstatement, so timely challenge to reinstatement permits collateral attack under §1252(a)(2)(D) |
| Whether expungement + FFOA eligibility nullified the legal basis for the 1998 removal | Expungement under CA §1203.4 and satisfaction of FFOA elements eliminated deportability, so the 1998 order lacked a valid legal basis | Expungement under a rehabilitative statute does not eliminate an immigration ‘‘conviction’’ absent formal FFOA relief; mere eligibility doesn’t make the prior removal invalid | Court held expungement (and conceded FFOA criteria) removed the legal basis for removal, satisfying the gross‑miscarriage‑of‑justice standard |
| Whether a diligence/timeliness requirement limits collateral attacks asserting a gross miscarriage of justice | No diligence requirement; Farinas allows collateral attack even after long delay when prior order lacked legal basis at issuance or execution | A petitioner must have challenged the original order within statutory windows; sister circuits require timeliness to preserve jurisdiction | Court held Farinas controls: no separate diligence/time‑limit bars collateral attack where the prior order lacked a valid legal basis at issuance or execution |
| Due process and agency‑regulatory claims about the reinstatement proceeding | ICE violated its regulations and petitioner’s due process rights during reinstatement | Reinstatement was lawful and process was adequate | Court did not decide these claims because it granted relief on the gross‑miscarriage ground |
Key Cases Cited
- Morales‑Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir.) (reinstatement and due process principles)
- Nunez‑Reyes v. Holder, 646 F.3d 684 (9th Cir.) (treatment of expunged pre‑2011 drug convictions)
- Wiedersperg v. INS, 896 F.2d 1179 (9th Cir.) (nullification of predicate conviction removes deportation’s legal basis)
- Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir.) (savings clause permits collateral attack for gross miscarriage of justice)
- Fernandez‑Vargas v. Gonzales, 548 U.S. 30 (2006) (limitations on re‑adjudication rights after illegal reentry)