Tarango-Delgado v. Garland, No. 19-9615 (10th Cir. 2021)
Annotate this CasePetitioner Edgar Tarango-Delgado appealed the Board of Immigration Appeals’ (“BIA”) denial of his two motions to reopen his removal proceedings. Tarango-Delgado, a Mexican citizen, came to the United States in 1977, when he was seven months old. He became a lawful permanent resident at age ten. And for almost four decades, he lived in the U.S. with his parents, siblings, wife, and children. In 2015, state police arrested Tarango-Delgado and charged him with aggravated animal cruelty, a felony. He pleaded guilty to that charge. But, before entering his plea, his counsel failed to advise him that pleading guilty would have deportation consequences because aggravated animal cruelty was a crime of moral turpitude. A few months after he pleaded guilty, the government commenced removal proceedings. Tarango-Delgado moved for post-conviction relief in state court, arguing he received ineffective assistance of counsel. This was ultimately denied, and Tarango-Delgado was removed in 2017. Almost a year after his removal, a Colorado state court ruled on Tarango-Delgado’s ineffective-assistance-of-counsel motion, concluding that Tarango-Delgado had not “knowingly and voluntarily” pleaded guilty to the aggravated-animal-cruelty charge, and vacated his conviction and reinstated the original aggravated-animal-cruelty charge. In January 2019, Tarango-Delgado filed his first motion to reopen his immigration proceedings before an IJ. The IJ denied Tarango-Delgado’s motion to reopen. In late February or early March 2019, a few days after the IJ denied Tarango-Delgado’s first motion to reopen, he reentered this country without authorization. And a few weeks later, after the Department of Homeland Security (“DHS”) learned about the illegal reentry, it reinstated Tarango-Delgado’s prior removal order. Tarango-Delgado applied for withholding of removal under the Convention Against Torture (“CAT”). An asylum officer found that Tarango-Delgado credibly feared returning to Mexico and referred his petition to an IJ. But the IJ denied his petition for CAT relief. The BIA affirmed. Tarango-Delgado pleaded guilty to a misdemeanor animal-cruelty charge, which by definition would no longer qualify as a crime of moral turpitude. Tarango-Delgado then filed a second motion to reopen his immigration proceedings. The government raised a new argument: Tarango-Delgado's motion could not be considered because he had illegally reentered the U.S. after being removed. Tarango-Delgado appeals the BIA’s denial of his two motions to reopen. Because the Tenth Circuit concluded that 8 U.S.C. 1231(a)(5) barred the reopening of his removal proceedings, the BIA’s denials were affirmed.
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