Lara-Garcia v. Garland

49 F.4th 1271

Jose Alfredo LARA-GARCIA, AKA Jose Alfredo Garcia, AKA Jose Alfredo Lara, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-71703

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 27, 2022 San Francisco, California

Filed September 26, 2022

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.

Before: Susan P. Graber and John B. Owens, Circuit Judges, and M. Miller Baker,^* International Trade Judge.

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 sentence of no more than one year of probation. And the BIA erroneously held that Petitioner's three misdemeanor convictions involve moral turpitude despite binding precedent to the contrary. Accordingly, we deny the petition in part, grant the petition in part, and remand for the BIA to reconsider, under the proper legal framework, whether to reopen proceedings sua sponte.

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:

1. burglary, in violation of California Penal Code section 459 ;

2. receipt of stolen property, in violation of California Penal Code section 496(a) ; and

3. 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 California Health and Safety Code section 11377(a). The state court sentenced Petitioner to three years of probation for the 2008 drug offense.

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 8 U.S.C. § 1227(a)(2)(B)(i), asserting that, because of Petitioner's 2008 drug-possession conviction, he had been convicted of violating a law relating to a controlled substance. Second, the government alleged removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(i), asserting that, because of his three 2006 misdemeanor convictions, Petitioner had been convicted of a crime involving moral turpitude within five years of admission and a crime for which a sentence of one year or longer may be imposed.

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, California Penal Code section 1203.4. For qualifying defendants, section 1203.4(a)(1) allows a California court to set aside the conviction, dismiss the criminal information, and release the defendant from nearly all penalties and disabilities that resulted from the conviction. If certain other requirements are met, defendants may qualify for relief by, among other avenues, successfully fulfilling the terms of probation. Cal. Penal Code § 1203.4(a)(1).

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 dismissed the appeal. The BIA held that the motion to reopen was untimely because it had been filed more than 90 days after the date of the 2008 removal order. The BIA held that the "unlawfully executed removal order" exception provided no help to Petitioner because the exception applies only to timely motions to reopen. The BIA next held that Petitioner was not entitled to equitable tolling of the filing deadline because, among other reasons, Petitioner failed to show "sufficient diligence to warrant equitable tolling." The BIA therefore denied Petitioner's motion to reopen as untimely.

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), 18 U.S.C. § 3607." Specifically, the California state judge sentenced Petitioner to three years of probation , whereas the FFOA allows preferential treatment of federal convictions only if the federal court imposes a sentence of no more than one year of probation. For that reason, the BIA ruled, "his state conviction cannot qualify, under Lujan-Armendariz , as a state conviction that was dismissed under a provision similar to the FFOA, and his offense falls outside the scope of FFOA." Second, the BIA held that, even if the 2008 drug conviction no longer constituted a conviction for immigration purposes, Petitioner nevertheless "remains removable" under 8 U.S.C. § 1227(a)(2)(A)(i) because his 2006 misdemeanor convictions qualify as crimes involving moral turpitude.

Petitioner timely seeks review.

STANDARDS OF 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.

Title 8 U.S.C. § 1229a(c)(7)(C)(i) provides that, in general, a "motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal." Similarly, 8 C.F.R. § 1003.2(c)(2) generally requires that a motion to reopen "must be filed no later than 90 days after the date on which the final administrative decision was rendered." Petitioner was ordered removed in 2008, and he filed his motion to reopen in 2018—approximately a decade too late.

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.

1. The Cardoso-Tlaseca Rule

Title 8 C.F.R. § 1003.2(d) bars an applicant from filing a motion to reopen "subsequent to his or her departure from the United States."¹ We have long interpreted the term "departure" narrowly, to mean only a " ‘legally executed’ departure when effected by the government." Estrada-Rosales v. INS , 645 F.2d 819, 820–21 (9th Cir. 1981) ; see also Mendez v. INS , 563 F.2d 956, 958 (9th Cir. 1977) (interpreting a statute's use of the term "departure" in the same manner). Accordingly, the regulatory departure bar applied only to persons who were removed under a "legally executed" removal order. We further held that a removal "based upon an invalid conviction" is not "legally executed." Estrada-Rosales , 645 F.2d at 821. If an invalid conviction was a "key part" of the original removal proceedings, then the regulatory departure bar did not apply. Id. ; Wiedersperg v. INS , 896 F.2d 1179, 1182 (9th Cir. 1990). Finally, in Cardoso-Tlaseca , we held that a conviction that was later expunged by a state court because of a procedural or substantive defect was an "invalid conviction" for purposes of the regulation. 460 F.3d at 1106–07. In sum, if a later-expunged conviction was a key part of the removal proceedings, then there had been no "departure," so the regulatory departure bar did not apply by its own terms.

Petitioner asks us to extend the Cardoso-Tlaseca rule. In his view, the statutory and regulatory filing deadlines for motions to reopen do...