JOSE ALFREDO LARA-GARCIA, AKA Jose Alfredo Garcia, AKA Jose Alfredo Lara v. MERRICK B. GARLAND, Attorney General
No. 20-71703
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 26, 2022
Agency No. A079-620-624
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted July 27, 2022 San Francisco, California
Filed September 26, 2022
Before: Susan P. Graber and John B. Owens, Circuit Judges, and M. Miller Baker,* International Trade Judge.
Opinion by Judge Graber
Immigration
Denying in part and granting in part Jose Alfredo Lara-Garcia‘s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that: (1) the vacatur of a conviction underlying a removal order does not excuse a late motion to reopen, and therefore, Petitioner‘s motion to reopen was untimely; (2) the BIA acted within its discretion in concluding that Petitioner failed to act with sufficient diligence to warrant equitable tolling of the motion-to-reopen deadline; and (3) the BIA erred as a matter of law in denying sua sponte reopening.
Petitioner was removed to Mexico in 2008, partly because of a California conviction for drug possession. In 2018, a California court expunged that conviction under California‘s rehabilitative statute, and Petitioner sought to reopen his immigration proceedings. An immigration judge and the BIA denied the motion to reopen, and Petitioner sought review in this court.
Because a motion to reopen must generally be filed within 90 days of a final order of removal, Petitioner‘s motion was approximately a decade late. Petitioner nevertheless argued that his motion was timely. First, he relied on Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006), which involved the departure bar (a now-invalidated regulation barring motions to reopen after “departure” from the United States). In Cardoso-Tlaseca,
The panel rejected Petitioner‘s argument, observing that it was bound by Perez-Camacho v. Garland, 42 F.4th 1103 (9th Cir. 2022), in which this court recently held that the Cardoso-Tlaseca rule applies only to timely motions to reopen; it does not excuse late filing. The panel also concluded that, even if it were not bound, it would reach the same result. The panel explained that the statute and regulation governing motions to reopen contain explicit exceptions to the timeliness requirement, but there is no exception for persons removed pursuant to an unlawfully executed order, and the codified exceptions strongly suggest that Congress and the agency did not intend that exception. Moreover, the panel explained that the rule in Cardoso-Tlaseca stems from the court‘s interpretation of the word “departure,” yet neither the statutory nor the regulatory timeliness requirement mentions departures or physical presence.
Second, Petitioner argued that he was entitled to equitable tolling of the filing deadline. The panel concluded the BIA acted within its discretion in holding that Petitioner failed to act with the required diligence, explaining that Petitioner did not seek expungement until nearly a decade after he was convicted, and presented neither argument nor evidence explaining why he could not have done so earlier.
Next, the panel concluded that the BIA legally erred in denying sua sponte reopening. The BIA rejected Petitioner‘s
The panel concluded that the BIA misread Lujan-Armendariz, explaining that nothing in that decision, or in any other decision, suggests that the period of probation imposed in state court must match the one-year limit on probation under the FFOA. The panel explained that the key question is whether state-court defendants would have been eligible for relief under the FFOA had their offenses been prosecuted as federal crimes. The panel concluded that, had he been prosecuted under federal law, he would have been eligible for FFOA treatment and, because he later received expungement, his conviction qualified under Lujan-Armendariz.
The panel remanded for the BIA to exercise its broad discretionary authority as to sua sponte reopening against the correct legal backdrop.
COUNSEL
Frank P. Sprouls (argued), Law Office of Ricci & Sprouls, San Francisco, California, for Petitioner.
Timothy Bo Stanton (argued), Trial Attorney; Anthony P. Nicastro, Assistant Director; Jennifer B. Dickey, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
GRABER, Circuit Judge:
Petitioner Jose Alfredo Lara-Garcia, a native and citizen of Mexico, was removed to Mexico in 2008, partly because of a California state-court conviction for drug possession. In 2018, a California court expunged that conviction, and Petitioner sought to reopen his immigration proceedings. An immigration judge (“IJ“) and the Board of Immigration Appeals (“BIA“) denied the motion to reopen. The BIA held that the motion was untimely and that Petitioner could not excuse the untimeliness. The BIA also declined to reopen proceedings sua sponte, on the grounds that Petitioner‘s expungement was ineffective for immigration purposes and that Petitioner remains removable due to separate crimes involving moral turpitude.
We agree with the BIA that the motion was untimely. In cases such as Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006), we have held that a regulatory bar to filing a motion to reopen after the noncitizen‘s departure from the country does not apply to a person who was removed due to a later-expunged conviction. But the Cardoso-Tlaseca rule applies only to timely motions; it does not excuse an untimely motion. Similarly, because Petitioner waited ten years to expunge his conviction, the BIA permissibly concluded that he failed to show sufficient diligence to warrant equitable tolling.
But the BIA erred as a matter of law when deciding whether to reopen proceedings sua sponte. The BIA incorrectly interpreted Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), overruled, prospectively only, by Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc), to extend solely to state-court defendants who received a
FACTUAL AND PROCEDURAL HISTORY
Petitioner entered the United States in 1998 and became a legal permanent resident in 2002. In 2006, Petitioner was convicted in California state court of three misdemeanors:
- burglary, in violation of
California Penal Code section 459 ; - receipt of stolen property, in violation of
California Penal Code section 496(a) ; and - possession of drug paraphernalia, in violation of
California Health and Safety Code section 11364(a) .
In 2008, Petitioner was convicted in California state court of felony possession of methamphetamine, in violation of
The convictions caught the attention of the federal government, and Petitioner received a notice to appear in 2008. The government charged him as removable on two separate grounds. First, the government alleged removability pursuant to
Petitioner agreed to depart voluntarily, and he waived the right to appeal to the BIA. In May 2008, an IJ entered an order of voluntary departure, with an alternative order of removal. Petitioner returned to Mexico.
Petitioner later reentered the United States and, in 2018, a California state court dismissed his 2008 drug-possession conviction under California‘s rehabilitative statute,
Petitioner then filed a motion to reopen before an IJ, arguing that he warranted relief from removal following the expungement of his drug-possession conviction. Although his 2018 motion came nearly a decade too late, Petitioner asserted that his motion was timely because of (a) an “unlawfully executed removal order” exception that we have applied in other circumstances in cases such as Cardoso-Tlaseca and (b) equitable tolling. The IJ denied Petitioner‘s motion to reopen, and Petitioner appealed to the BIA.
The BIA declined to reopen proceedings sua sponte for two reasons. First, Petitioner could not benefit from Lujan-Armendariz because his “offense plainly falls outside the scope of the Federal First Offender Act (FFOA),
Petitioner timely seeks review.
We review for abuse of discretion the BIA‘s denial of a motion to reopen. Gutierrez-Zavala v. Garland, 32 F.4th 806, 809 (9th Cir. 2022). We review de novo questions of law. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022).
DISCUSSION
We address (A) the timeliness of the motion to reopen and (B) the BIA‘s decision not to reopen proceedings sua sponte.
A. The Motion to Reopen Was Untimely.
Petitioner nevertheless argues that his motion is timely because, in 2018, a California court expunged his 2008 drug conviction. He presents his argument under two distinct legal theories: (1) the Cardoso-Tlaseca rule and (2) equitable tolling. For the reasons discussed below, we agree with the BIA that Petitioner‘s motion was untimely.
Petitioner asks us to extend the Cardoso-Tlaseca rule. In his view, the statutory and regulatory filing deadlines for motions to reopen do not apply when a person is removed
We recently held that the Cardoso-Tlaseca rule applies only to timely motions to reopen; the rule does not excuse a late filing. Perez-Camacho v. Garland, 42 F.4th 1103, 1108–09, 1109 n.8, 1111 & n.12 (9th Cir. 2022). We are bound by Perez-Camacho. Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).
Even if we were not bound, we would reach the same conclusion. Perez-Camacho‘s holding comports with congressional intent. Both the statute and the regulation contain explicit exceptions to the timeliness requirement in certain circumstances, such as changed country conditions, battered spouses, and removals in absentia.
Moreover, our rule in Cardoso-Tlaseca stems from our interpretation of the word “departure,” yet neither the statutory timeliness requirement nor the regulatory timeliness requirement mentions departures or physical presence. Cf. Planes v. Holder, 652 F.3d 991, 995 (9th Cir. 2011) (holding that certain earlier cases “were decided before the enactment of this statutory definition of
In sum, the BIA correctly held that the Cardoso-Tlaseca rule does not excuse a late motion to reopen.
2. Equitable Tolling
The timeliness requirement for motions to reopen is subject to equitable tolling. Perez-Camacho, 42 F.4th at 1110. “A petitioner may receive equitable tolling when some extraordinary circumstance stood in the petitioner‘s way and prevented timely filing, and he acted with due diligence in pursuing his rights.” Hernandez-Ortiz v. Garland, 32 F.4th 794, 801 (9th Cir. 2022) (internal quotation marks and brackets omitted).
Here, the BIA acted within its discretion in holding that Petitioner failed to act with sufficient diligence. Petitioner did not seek to have his conviction expunged until nearly a decade after he was convicted in 2008, and he has presented neither argument nor evidence explaining why he could not have done so earlier than 2018.2 See, e.g., Perez-Camacho,
B. The BIA Legally Erred When It Denied Sua Sponte Reopening.
We generally lack jurisdiction to review the BIA‘s denial of sua sponte reopening. Bonilla, 840 F.3d at 585–86. But we retain jurisdiction to review any underlying legal or constitutional errors. Id. at 587. We “may review denials of sua sponte reopening where . . . there is ‘law to apply’ in doing so.” Id. If the BIA‘s decision “was based on a legally erroneous premise,” we have jurisdiction to grant the petition and “remand to the Board to exercise its broad discretionary authority as to sua sponte reopening against the correct legal backdrop.” Id. at 579. “The scope of our review under Bonilla is limited to those situations where it is obvious that the agency has denied sua sponte relief not as a matter of discretion, but because it erroneously believed that the law forbade it from exercising its discretion or that exercising its discretion would be futile.” Lona v. Barr,
Here, the BIA rejected Petitioner‘s request for sua sponte reopening for two independent, alternative reasons grounded in the BIA‘s understanding of the applicable law: (1) Petitioner‘s conviction “plainly falls outside the scope of the [FFOA],” and (2) Petitioner “remains removable” due to his crimes involving moral turpitude. We therefore have jurisdiction to review the BIA‘s legal conclusions. Bonilla, 840 F.3d at 585.
1. Scope of the FFOA
The BIA held that, in order to qualify for relief under Lujan-Armendariz, a state conviction must have resulted in a sentence of no more than one year of probation. The proper interpretation of the FFOA and Lujan-Armendariz presents a question of law over which we have jurisdiction. See, e.g., Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011) (noting that rulings “based on statutory interpretation and Ninth Circuit precedent” are “questions of law” that we review “de novo“).
The FFOA provides:
If a person found guilty of an offense described in section 404 of the Controlled Substances Act [simple possession]—
(1) has not, prior to the commission of such offense, been convicted of violating a Federal or State law relating to controlled substances; and
(2) has not previously been the subject of a disposition under this subsection;
the court may, with the consent of such person, place him on probation for a term of not more than one year without entering a judgment of conviction. At any time before the expiration of the term of probation, if the person has not violated a condition of his probation, the court may, without entering a judgment of conviction, dismiss the proceedings against the person and discharge him from probation. At the expiration of the term of probation, if the person has not violated a condition of his probation, the court shall, without entering a judgment of conviction, dismiss the proceedings against the person and discharge him from probation.
The BIA reasoned as follows. The FFOA allows federal expungement only if the federal sentencing court imposes a sentence of probation of one year or less. The state court imposed three years of probation on Petitioner. Three is more than one. Accordingly, his expungement does not qualify under Lujan-Armendariz.
The BIA misread Lujan-Armendariz. Nothing in Lujan-Armendariz, or in any other decision, suggests that the period of probation imposed in state court must match the one-year limit on probation under federal law. Instead, we repeatedly explained in Lujan-Armendariz that the rule applies to anyone who was convicted, for the first time, of simple possession and whose conviction was later expunged under state law. The key question is whether the state-court defendants “would have been eligible for relief under the Act had their offenses been prosecuted as federal crimes.” Lujan-Armendariz, 222 F.3d at 749 (emphasis added). We repeated that formulation throughout our opinion. See id. at 738 (“if the offense could have been expunged under the Act had the crime been prosecuted under federal law“); id. (“as long as they could have received the benefit of the federal Act if they had been prosecuted under federal law“); id. (“if he establishes that he would have been eligible for federal first offender treatment under the provisions of [the FFOA] had he been prosecuted under federal law“). That inquiry focuses only on the time of prosecution. At that time, had Petitioner been prosecuted under federal law, he would have been eligible for FFOA treatment. Because he later received expungement, his conviction qualifies under Lujan-Armendariz.
Two aspects of Lujan-Armendariz confirm our interpretation. First, both petitioners in Lujan-Armendariz received probationary sentences of longer than one year. See 222 F.3d at 733 (five years and three years). Yet we held several times that “both Lujan and Roldan would have been eligible for relief had they been prosecuted under the [FFOA]” and therefore could not be deported for those convictions.3 Id. at 743 n.25; see id. at 748 (“Here, both
Second, we explained at length that procedural disparities in expungement schemes among states and between state law and federal law were irrelevant: “Equally important, the rule applies regardless of the procedural differences associated with the various state statutes.” Id. at 735; see id. at 735–36 & 738 n.18. “We stressed [in a previous decision] that the critical question is not the nature of the state‘s expungement statute but rather ‘what the petitioner did.‘” Id. at 738 n.18 (brackets omitted) (quoting Garberding v. INS, 30 F.3d 1187, 1191 (9th Cir. 1994)). We summarized: “In short, if the person‘s crime was a first-time drug offense, involved only simple possession or its equivalent, and the offense has been expunged under a state statute, the expunged offense may not be used as a basis for deportation.”4 Id.
Accordingly, an alien cannot be deemed “convicted” for immigration purposes if he can demonstrate that (1) the conviction was his first offense; (2) he had not previously
been accorded first offender treatment; (3) his conviction was for possession of drugs, . . . ; and (4) he received relief under a state rehabilitative statute.
Id. at 812. Each of those elements is clearly met for Petitioner; none of the elements depends on the length of the probationary term.
In sum, the BIA legally erred by holding that, because he received a sentence of three years of probation, Petitioner‘s expungement did not qualify under Lujan-Armendariz.
2. Crimes Involving Moral Turpitude
The BIA‘s alternative reason for denying sua sponte reopening was that Petitioner “remains removable” under
Turning to the merits, Petitioner is correct that his convictions do not qualify as crimes involving moral turpitude. The government‘s assertion to the contrary cites no legal authority, and we are aware of none.
First, Petitioner was convicted of misdemeanor burglary, in violation of
Second, he was convicted of misdemeanor receiving stolen property, in violation of
Finally, Petitioner was convicted of misdemeanor possession of drug paraphernalia, in violation of
In short, the BIA legally erred by concluding that Petitioner “remains removable” under
We deny the petition in part and grant the petition in part. Petitioner‘s motion was untimely, so we deny the petition to the extent that Petitioner challenges the BIA‘s timeliness holding. But we grant the petition to the extent that Petitioner challenges the BIA‘s decision not to reopen proceedings sua sponte. We hold only that, in denying sua sponte reopening, the BIA legally erred. We remand for the BIA “to exercise its broad discretionary authority as to sua sponte reopening against the correct legal backdrop.” Bonilla, 840 F.3d at 579.
PETITION DENIED IN PART AND GRANTED IN PART; REMANDED. The parties shall bear their own costs of appeal.