Juan Salgado v. Jefferson Sessions, III
14-60507
5th Cir.Dec 19, 2017Background
- Juan Salgado, a Mexican national and former lawful permanent resident, was removed in 2009 after pleading guilty in Texas to evading arrest, an aggravated felony for immigration purposes. He did not appeal that removal.
- Salgado reentered the U.S., was placed in removal proceedings, and sought abeyance while he challenged the 2009 conviction; the IJ denied abeyance but said he would reopen if the conviction were vacated before BIA review.
- While Salgado’s appeal to the BIA was pending, a state court vacated his conviction on double-jeopardy grounds; the BIA remanded to the IJ to consider the vacatur’s effect.
- On remand the IJ concluded it lacked jurisdiction to reopen: (1) a statutory motion to reopen (8 U.S.C. § 1229a(c)(7)(C)(i)) was untimely (90-day rule); and (2) the regulatory "departure bar" (8 C.F.R. §1003.23(b)(1) / §1003.2(d)) precluded sua sponte reopening because Salgado had departed the U.S. after removal.
- The BIA affirmed. Salgado raised: (a) IJ should be able to reopen under the regulations despite departure; (b) denial deprived him of due process / miscarriage of justice because conviction was vacated; (c) ineffective assistance of prior immigration counsel; and (d) statutory reopening should be timely measured from vacatur. The Fifth Circuit dismissed in part for lack of jurisdiction and denied relief in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ/BIA had regulatory authority to sua sponte reopen post-removal proceedings despite departure | Salgado: departure bar should not prevent an IJ from reopening at any time, even after removal | Government: regulations (departure bar) categorically strip jurisdiction over motions to reopen filed by departed aliens | Held: Departure bar controls; no jurisdiction to reopen under the regulations (affirmed) |
| Whether denial of regulatory sua sponte reopening violates due process / results in miscarriage of justice because conviction was vacated | Salgado: vacatur of conviction (constitutional violation) makes denial a due-process violation and miscarriage of justice | Government: no liberty interest in a motion to reopen; change in conviction status does not create constitutional right to reopen; Salgado failed to contest removability originally | Held: Due-process and miscarriage-of-justice claims fail; no relief |
| Whether ineffective assistance of prior immigration counsel warrants reopening | Salgado: prior counsel failed to investigate/raise double-jeopardy issue | Government: Salgado failed to satisfy procedural prerequisites for IAC-based reopening (affidavit, notice to counsel, grievance) and provided only conclusory allegations | Held: IAC claim denied for failure to meet required showing |
| Whether statutory motion to reopen (8 U.S.C. §1229a) was timely measured from vacatur and is reviewable here | Salgado: ninety-day period should run from state-court vacatur, so his filing was timely | Government: statute measures ninety days from final removal order; Salgado failed to exhaust this claim before the BIA | Held: Court lacks jurisdiction to review statutory-timeliness claim for failure to exhaust; petition dismissed in part |
Key Cases Cited
- Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) (departure bar precludes IJ/BIA from considering motions to reopen by departed aliens)
- Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) (upheld regulatory departure bar as applied to post-removal motions)
- Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012) (departure regulations do not govern statutory motions to reopen under §1229a)
- Mata v. Lynch, 135 S. Ct. 2150 (U.S. 2015) (courts have jurisdiction to review equitable-tolling denials for motions to reopen)
- Roy v. Ashcroft, 389 F.3d 132 (5th Cir. 2004) (failure to exhaust administrative remedies bars judicial review of an issue)
- Altamirano-Lopez v. Gonzales, 435 F.3d 547 (5th Cir. 2006) (no liberty interest in a motion to reopen for due-process purposes)
- Rodriguez-Manzano v. Holder, 666 F.3d 948 (5th Cir. 2012) (procedural requirements for reopening based on ineffective assistance of counsel)