Reyes-Torres v. Holder
645 F.3d 1073
| 9th Cir. | 2011Background
- Reyes-Torres, a Mexican national, had been a lawful permanent resident since 1964 and had two relevant state convictions: 1984 alien transportation (aggravated felony) and a 2007 controlled-substance offense.
- DHS issued a Notice to Appear in 2008 alleging removability for an aggravated-felony and a controlled-substance conviction; Reyes-Torres conceded removability on the controlled-substance ground and contested removability on the aggravated-felony ground.
- An immigration judge found the 1984 alien-smuggling conviction constituted an aggravated felony and denied cancellation of removal; Reyes-Torres admitted removability and the IJ ordered removal to Mexico.
- The BIA affirmed the IJ’s decision on September 26, 2008; Reyes-Torres was removed on October 3, 2008.
- On October 27, 2008 Reyes-Torres filed a motion to reconsider and reopen with the BIA based on a vacatur of his 2007 conviction; on December 22, 2008 the BIA dismissed for lack of jurisdiction under 8 C.F.R. § 1003.2(d), the departure bar.
- The Ninth Circuit consolidated review and held the BIA had jurisdiction to review post-removal motions, reversing and remanding for further action consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA has jurisdiction to review motions to reopen/reconsider after removal. | Reyes-Torres argues the BIA retains jurisdiction. | Holders contends the departure bar strips jurisdiction. | Yes; jurisdiction exists and petition granted. |
| How vacatur of the 2007 plea affects removability and relief. | Vacatur negates basis for removability under 1227(a)(2)(B)(i). | Vacatur does not alter the removal grounds and relief analysis. | Vacatur does not extinguish pre-existing removal-based ineligibility; case remanded for BIA action consistent with Becker and related authorities. |
| Whether the 1984 pre-1988 aggravated felony can bar cancellation of removal. | Becker governs ineligibility for cancellation despite pre-1988 status. | Pre-1988 aggravated felony remains grounds to deny cancellation. | Becker controls; Reyes-Torres remains ineligible for cancellation based on the aggravated felony. |
| Whether the pre-removal record supports the conclusion Reyes-Torres was removable based on the challenged grounds. | Record showed removability on conceded ground; question is scope of relief. | Record supports removal under the ground deemed applicable. | The record supports removability and the Board’s approach, with remand for proper Pari of vacatur analysis. |
Key Cases Cited
- Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010) (analyzes regulatory departure bar and IIRIRA motion rights after departure)
- Becker v. Gonzales, 473 F.3d 1000 (9th Cir. 2007) (alien convicted of any aggravated felony at any time not eligible for cancellation of removal)
- Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (vacatur/immigration consequences and exhaustion considerations in removability/relief analysis)
- Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010) (temporal limits on aggravated-felony grounds; immigration consequences separate from deportability)
- Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008) (conceding removability binds government burden; effect on relief)