LUIS PEREZ-CAMACHO V. MERRICK GARLAND, No. 19-72063 (9th Cir. 2022)
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Petitioner, a lawful permanent resident, was ordered removed based on a 1997 conviction. He then filed a motion to reopen, which was denied. In 2018, he filed a second motion to reopen, claiming that he was no longer removable as charged because a state court, in 2018, had modified his conviction due to a “constitutional defect” in his criminal proceeding. Petitioner argued that his removal order was invalid, and therefore, the BIA should reopen proceedings, set aside his removal order, and terminate proceedings. The BIA denied the motion as both number-barred
The Ninth Circuit filed: 1) an order amending the opinion filed August 1, 2022, and 2) an amended opinion denying in part and dismissing in part Petitioner’s petition for review of a decision of the Board of Immigration Appeals. In the amended opinion, the panel concluded that the BIA did not err in denying Petitioner’s motion to reopen, which challenged his removal order on the ground that his underlying conviction was allegedly invalid.
The panel concluded that none of the circumstances in which an alien may challenge a removal order based on the claim that a conviction underlying a removal order is invalid were applicable here. First, the BIA’s authority to consider such a challenge when the alien brings a motion to reopen that is not time- or number-barred was not implicated here. Next, Petitioner could not raise arguments that are available for an alien challenging a reinstatement proceeding or reinstatement order.
Court Description: Immigration. The panel filed: 1) an order amending the opinion filed August 1, 2022; and 2) an amended opinion denying in part and dismissing in part Luis Perez-Camacho’s petition for review of a decision of the Board of Immigration Appeals. In the amended opinion, the panel concluded that the BIA did not err in denying Perez-Camacho’s motion to reopen, which challenged his removal order on the ground that his underlying conviction was allegedly invalid. In 2005, Perez-Camacho, a lawful permanent resident, was ordered removed based on a 1997 conviction. He then filed a motion to reopen, which was denied. In 2018, he filed a second motion to reopen, claiming that he was no longer removable as charged because a state court, in 2018, had modified his conviction due to a “constitutional defect” in his criminal proceeding. Perez-Camacho argued that his removal order was invalid, and therefore, the BIA should reopen proceedings, set aside his removal order, and terminate proceedings. The BIA denied the motion as both number-barred (because an alien may file only one motion to reopen) and time- barred (because a motion to reopen must be filed within 90 days of a final order of removal). The BIA also held that equitable tolling was not available and that sua sponte reopening was not warranted. The panel concluded that none of the circumstances in which an alien may challenge a removal order based on the claim that a conviction underlying a removal order is invalid were applicable here. First, the BIA’s authority to consider such a challenge when the alien brings a motion to reopen that is not time- or number-barred was not implicated here. Next, Perez-Camacho could not raise arguments that are available for an alien challenging a reinstatement proceeding or reinstatement order. The panel explained that an alien challenging reinstatement may show that he suffered a gross miscarriage of justice on the ground that an underlying conviction was invalid due to a merits-based defect, and would not be required to show due diligence. In contrast, Perez-Camacho’s removal order had not been reinstated and his challenge to his removal order was subject to the regulatory number and time bar for motions to reopen. The panel further explained that Perez-Camacho did not argue to the BIA that his motion met any regulatory exception to the time and number bar, and any such argument was unexhausted. The panel also concluded that the BIA did not abuse its discretion in deciding that equitable tolling of the time and number bar was not available to Perez- Camacho, explaining that he waited 21 years to seek modification of his conviction, provided no basis as to his reasonable efforts to pursue relief during that period, and provided no explanation for such an exceedingly long delay. Finally, the panel concluded that it lacked jurisdiction to consider whether the BIA erred in denying Perez-Camacho’s request to sua sponte reopen proceedings, because the BIA committed no legal or constitutional error in determining that his 1997 conviction was not vacated due to a merits-based defect.
This opinion or order relates to an opinion or order originally issued on August 1, 2022.
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