42 F.4th 1103
9th Cir.2022Background
- Luis Perez-Camacho, a Mexican national and lawful permanent resident since 1985, pleaded guilty in 1997 to inflicting corporal injury on a spouse (Cal. Penal Code § 273.5). DHS later charged removability under 8 U.S.C. § 1227(a)(2)(E)(i).
- Perez-Camacho failed to appear at a rescheduled 2005 removal hearing and was ordered removed in absentia; his 2005 motion to reopen was denied.
- In 2018 he filed a second, untimely and number-barred motion to reopen claiming (1) a Pereira-based jurisdictional defect in his 2005 NTA and (2) equitable tolling; he also submitted state-court minutes showing the 1997 conviction was later modified/dismissed and replaced by a § 243(e)(1) plea via a stipulation.
- He argued the state-court modification established ineffective assistance of counsel and a constitutional defect that rendered the original conviction non-removable, warranting reopening or sua sponte relief.
- The BIA denied the motion as time- and number-barred, rejected equitable tolling (noting the 21-year delay and lack of explanation for when the alleged error was discovered), and concluded the state-court minutes did not show vacatur based on a merits defect.
- Perez-Camacho petitioned for review in the Ninth Circuit; the court denied in part and dismissed in part, holding the BIA did not abuse its discretion.
Issues
| Issue | Perez-Camacho's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether BIA erred by denying a time- and number-barred motion to reopen | Motion should be reopened because conviction was later modified and thus removal basis gone; equitable tolling applies | Motion is time- and number-barred; no equitable tolling because of 21-year delay and lack of diligence | Held: BIA did not err; motion was time- and number-barred and equitable tolling unavailable |
| Whether state-court modification converted conviction into a non-removable offense (gross miscarriage of justice) | State minutes show conviction modified/dismissed due to constitutional defect (IAC), so original conviction cannot support removability | Minutes do not demonstrate vacatur for substantive/constitutional defect; BIA need not reopen on that basis | Held: BIA reasonably concluded minutes did not show vacatur for merits-based defect; no relief warranted |
| Whether Pereira jurisdictional defect warranted reopening | NTA lacked time/place; IJ lacked jurisdiction under Pereira; this supports tolling/reopening | Karingithi and agency rulings foreclose the Pereira-based jurisdiction claim here; issue was not raised on appeal to BIA | Held: Claim was waived before this Court; not considered on appeal |
| Whether BIA abused discretion by denying sua sponte reopening | Exceptional circumstances (conviction change) justify sua sponte reopening | BIA found situation not "truly exceptional" and no legal error in its reasoning | Held: Court lacked jurisdiction to review discretionary denial; no legal/constitutional error shown |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (notice-to-appear timing can affect jurisdictional defenses)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (limits Pereira-based jurisdictional claims where facts differ)
- Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (vacatur for procedural/substantive defects can negate removability)
- Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006) (conviction vacated for merits defects is not a conviction for immigration purposes)
- Poblete Mendoza v. Holder, 606 F.3d 1137 (9th Cir. 2010) (distinguishing vacaturs that affect removability from those that do not)
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (equitable tolling available for deception, fraud, or counsel error when diligence shown)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (diligence standard for tolling; agency not required to excuse lengthy unexplained delay)
- Menendez-Gonzalez v. Barr, 929 F.3d 1113 (9th Cir. 2019) (limited reviewability of BIA denials of sua sponte reopening)