Perez-Camacho v. Garland

54 F.4th 597

Luis PEREZ-CAMACHO, Petitioner,

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

No. 19-72063

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2022 Pasadena, California

FILED DECEMBER 2, 2022

Douglas Jalaie (argued), The Law Office of Douglas Jalaie, Los Angeles, California, for Petitioner.

Rachel L. Browning (argued), Trial Attorney; Claire L. Workman, Senior Litigation Counsel; Keith I. McManus ; Assistant Director; Ethan P. Davis, Acting Assistant Attorney General; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.

Before: Sandra S. Ikuta, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges.

Order;

Opinion by Judge Ikuta

ORDER

The opinion filed on August 1, 2022, is amended as follows.

On slip opinion page 9, add a footnote < At the time the agency ruled in this case, the applicable regulation was 8 C.F.R. § 1003.2(c) (2020). The regulation was amended effective January 2021, see 85 FR 81588-01, but the amendment has been stayed and preliminarily enjoined. See Cath. Legal Immigr. Network, Inc. v. Exec. Office for Immigr. Rev., No. 21-00094, 2021 WL 3609986, at *1 (D.D.C. Apr. 4, 2021) ; Centro Legal de la Raza v. Exec. Office for Immigr. Rev., 524 F. Supp. 3d 919, 928 (N.D. Cal. 2021). We do not express a view on the current status of the regulation or the impact of the stays and injunction.>

On slip opinion page 13, change < seven> to < several> and change < 8 C.F.R. § 1003.2(c)(3)> to < 8 C.F.R. § 1003.2(c)(3) (2020)>.

On slip opinion pages 13–14, replace the entirety of the text of footnote 10 with < At the time the agency ruled in this case, the applicable regulation provided four exceptions. See 8 C.F.R. § 1003.2(c)(3) (2020). The regulation was amended effective January 2021, see 85 FR 81588-01, to provide additional exclusions, including one for a time- and number-barred motion to reopen:

For which a three-member panel of the Board agrees that reopening is warranted when the following circumstances are present, provided that a respondent may file only one motion to reopen pursuant to this paragraph (c)(3):

(A) A material change in fact or law underlying a removability ground or grounds specified in section 212 [8 U.S.C. § 1182, grounds of inadmissibility] or 237 [8 U.S.C. § 1227, grounds of deportability] that occurred after the entry of an administratively final order that vitiates all grounds of removability applicable to the alien; and

(B) The movant exercised diligence in pursuing the motion to reopen.

8 C.F.R. § 1003.2(c)(3)(v) (2021). We have not yet addressed the question whether the vacatur or modification of a conviction underlying a removal order may constitute a "material change in fact or law" for purposes of this exception. As previously stated, see supra n. 5, this provision has been stayed and preliminarily enjoined.>.

On slip opinion page 15 replace < until January 2021, the regulations> with < when the agency ruled in this case, the applicable regulations>.

On slip opinion pages 15–16, replace the entirety of the text of footnote 11 with < After January 15, 2021, the amended regulations provide that the BIA "may at any time reopen or reconsider a case in which it has rendered a decision on its own motion solely in order to correct a ministerial mistake or typographical error in that decision or to reissue the decision to correct a defect in service." 8 C.F.R. § 1003.2(a)(1) (2021). The amended regulations impose the same limitations on the IJ. 8 C.F.R. § 1003.23(b)(1) (2021). As previously stated, see supra n. 5, these provisions have been stayed and preliminarily enjoined.>

On slip opinion page 17, replace < 8 C.F.R. § 1003.2(c)(3)> with < 8 C.F.R. § 1003.2(c)(3) (2020)>.

The respondent's motion to amend (Dkt. 50) is hereby granted in part and denied in part.

The time to file a petition for rehearing or petition for rehearing en banc is not extended by this amendment. The petition for rehearing or petition for rehearing en banc is due on or before December 14, 2022.

AMENDED OPINION

IKUTA, Circuit Judge

There are various circumstances in which an alien may challenge a removal order on the ground that the conviction underlying the removal order was subsequently vacated (or modified) due to a procedural or substantive error. For instance, an alien may raise such a challenge in a timely motion to reopen, in a challenge to a reinstatement order or proceeding, or in an untimely motion to reopen if it is eligible for equitable tolling. Because the alien in this case brought a time- and number-barred motion to reopen that is not subject to equitable tolling, the Board of Immigration Appeals (BIA) did not err in denying his challenge to the removal order on the ground that the underlying conviction was allegedly invalid.

I

Luis Perez-Camacho, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident in 1985. In 1997, Perez-Camacho pleaded guilty to one count of inflicting corporal injury on a spouse in violation of section 273.5(a) of the California Penal Code. The Department of Homeland Security (DHS) served Perez-Camacho with a notice to appear (NTA), charging him with being removable under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien "convicted of a crime of domestic violence" after admission.

Perez-Camacho's removal hearing had been scheduled for April 2005, but was rescheduled to June 1, 2005. Perez-Camacho failed to appear and was ordered removed in absentia. In August 2005, Perez-Camacho filed a motion to reopen, which was denied.

In September 2018, Perez-Camacho filed a second motion to reopen. Perez-Camacho claimed the immigration judge (IJ) lacked jurisdiction over his case under Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), because his 2005 notice to appear did not contain the date or time of his hearing. Perez-Camacho also claimed that the decision in Pereira constituted an extraordinary circumstance that prevented him from timely filing a motion to reopen, despite his reasonable diligence. Therefore, he requested equitable tolling of the motion to reopen deadline. In the alternative, he requested that the BIA sua sponte reopen his removal proceedings.

While his second motion to reopen was pending, Perez-Camacho submitted a supplemental brief to the BIA which claimed that he was no longer removable as charged in 2005 because a state court had modified his 1997 conviction due to a "constitutional defect" in the criminal proceedings. In support of this argument, Perez-Camacho attached a computer printout of state court minutes, dated November 2, 2018.¹ According to Perez-Camacho, the state court amended the original complaint against Perez-Camacho to add a second count, the offense of domestic battery under section 243(e)(1) of the California Penal Code. The court then dismissed Count 1 (the original violation of section 273.5(a), inflicting corporal injury on a spouse), and accepted Perez-Camacho's plea of no contest to Count 2. The state court took this action based on a stipulation by the parties that the district attorney would have accepted a guilty plea to domestic battery under section 243(e)(1) in 1997 if defense counsel had offered it. In his supplemental brief, Perez Camacho argued that the stipulation established that his defense counsel rendered ineffective assistance resulting in a conviction for violating section 273.5(a), which made him removable under 8 U.S.C. § 1227(a)(2)(E)(i). In Perez Camacho's view, absent defense counsel's ineffective assistance, he would have been convicted of violating section 243(e)(1), which is not a removable offense. Because the state court's action was based on a constitutional defect, according to Perez-Camacho, his removal order was invalid. Therefore, he argued, the BIA should apply principles of equitable tolling to reopen proceedings, set aside the removal order based on the now-modified 1997 conviction, and terminate proceedings.

The BIA denied the motion. The BIA first held that the motion to reopen was both number-barred (because Perez-Camacho had previously filed a motion to reopen in 2005) and time-barred (because it was filed more than 13 years after the entry of his final order of removal).² The BIA next held that the modification of the 1997 conviction did not justify equitable tolling of the deadline for motions to reopen, because the modification occurred more than 13 years after the deadline expired and Perez-Camacho failed to explain why he waited 21 years after his 1997 conviction to apply for the modification. The BIA also held that the 2018 modification did not constitute an exceptional situation that would warrant sua sponte reopening.³

Perez-Camacho timely petitioned for review of the BIA's decision. We have jurisdiction under 8 U.S.C. § 1252.

II

On appeal, Perez-Camacho argues that the conviction underlying his removal order is no longer a removable offense, and therefore his second motion to reopen should have been granted under a "gross miscarriage of justice" exception. Alternatively, Perez-Camacho argues that he was entitled to equitable tolling of the deadline for bringing his second motion to reopen, and that the BIA erred in denying sua sponte reopening.

A

We generally have jurisdiction over the BIA's denial of a motion to reopen, 28 U.S.C. § 1252(a), Kucana v. Holder , 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010), which includes review of the BIA's determination that an "alien has failed to provide a sufficient justification for an untimely motion" to reopen, Sun v. Mukasey , 555 F.3d 802, 805 (9th Cir. 2009). We review the agency's denial of a motion to reopen for abuse of discretion, Sharma v. INS , 89 F.3d 545, 547 (9th Cir. 1996), and reverse only if the decision was "arbitrary, irrational, or contrary to law," Silva v. Garland , 993 F.3d 705, 718 (9th Cir. 2021). The agency's findings of fact are conclusive unless any reasonable...