Ruben Reyes-Torres v. Eric H. Holder Jr., No. 08-74452 (9th Cir. 2011)
Annotate this CasePetitioner appealed the Board of Immigration Appeals ("BIA") decision affirming a finding that his alien transportation conviction in 1984 constituted an aggravated felony and he was therefore ineligible for relief in the form of cancellation of removal. Petitioner also appealed the BIA's dismissal of his motion to reopen and reconsider his guilty plea to the controlled substance charge that resulted in his conviction where he was not adequately informed of the immigration consequences of his plea. At issue was whether petitioner was properly found removable due to his 1984 conviction and therefore ineligible for cancellation of removal. Also at issue was whether the BIA had jurisdiction to review a motion to reconsider and reopen filed after a petitioner had been involuntarily removed from the United States. The court remanded and held that until the BIA determined that petitioner's conviction was not vacated on the merits, petitioner was not properly found removable under the Immigration and Nationality Act on a ground separate and distinct from a pre-1998 aggravated felony conviction. The court also held that the physical removal of petitioner from the United Stated did not preclude him from pursuing a motion to reopen where Congress made clear in passing the Illegal Immigration Reform and Immigration Responsibility Act of 1996 that Congress anticipated that petitioners would be able to pursue relief after departing from the United States.
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