Ninth Circuit Dismisses Attack on Reinstatement Order Based on Post-Removal Vacatur of Conviction

The Ninth Circuit has held that a vacatur of a criminal conviction after a petitioner has been physically removed from the United States does not demonstrate a gross miscarriage of justice in the underlying removal proceedings, such that he can challenge the reinstatement of a removal order premised on the vacated conviction. The gross miscarriage of justice standard looks at whether the removal order was valid at the time it was issued and at the time it was executed. Thus, any post-execution developments, such as vacatur of the conviction that formed the basis of the removal order, do not establish a gross miscarriage of justice. The court further noted that the petition was found deportable for having entered the United States without inspection, which provided a separate basis from the conviction for deporting him.

The full text of Lopez Vazquez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/12/18-70329.pdf

Ninth Circuit Issues Amended Decision on Collateral Attacks on Reinstated Removal Orders

The Ninth Circuit has issued an amended opinion in Vega-Anguiano v. Barr. The decision prohibits the reinstatement of a removal order that was no longer lawful at the time of its execution. In the instant case, the petitioner was convicted in 1991 of possession of a controlled substance. He was ordered removed in 1998, but he received an expungement in 1999, which eliminated the conviction under the Federal First Offenders Act. He was physically deported in 2008. He returned, and ICE sought to reinstate the 1998 order. The Ninth Circuit found that because the removal order was no longer lawful in 2008 when it was executed, the petitioner suffered a gross miscarriage of justice, prohibiting the reinstatement of the order.

“Collateral attack is largely reserved for cases in which the removal order could not have withstood judicial scrutiny under the law in effect at the time of either its issuance or its execution.” “Vega-Anguiano [] had his conviction expunged prior to—indeed, many years prior to—the execution of his removal order in 2008. As we noted above, and as the government has conceded, the expungement eliminated the legal basis for his removal order because Vega-Anguiano met the requirements of the Federal First Offender Act. Thus, by the time of Vega-Anguiano’s removal in 2008, his removal order lacked a valid legal basis.” In addition, the Court determined that “there is no diligence requirement that limits the time during which a collateral attack on that deportation or removal order may be made based on a showing of gross miscarriage of justice.”

The amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/24/15-72999.pdf

Eighth Circuit Rejects Challenge to Underlying Removal Order in Reinstatement Appeal

The Eighth Circuit has rejected the petitioner’s argument that he suffered a gross miscarriage of justice in his underlying administrative removal order, finding that he cannot challenge the validity of the underlying removal order through an appeal of the reinstatement of that order.

The full text of Lara Nieto v. Wolf can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/12/182232P.pdf

Ninth Circuit Prohibits Reinstatement of Order that Was Unlawful at Time of Execution

The Ninth Circuit has prohibited the reinstatement of a removal order that was no longer lawful at the time of its execution. In the instant case, the petitioner was convicted in 1991 of possession of a controlled substance. He was ordered removed in 1998, but he received an expungement in 1999, which eliminated the conviction under the Federal First Offenders Act. He was physically deported in 2008. He returned, and ICE sought to reinstate the 1998 order. The Ninth Circuit found that because the removal order was no longer lawful in 2008 when it was executed, the petitioner suffered a gross miscarriage of justice, prohibiting the reinstatement of the order.

“Collateral attack is largely reserved for cases in which the removal order could not have withstood judicial scrutiny under the law in effect at the time of either its issuance or its execution.” “Vega-Anguiano [] had his conviction expunged prior to—indeed, many years prior to—the execution of his removal order in 2008. As we noted above, and as the government has conceded, the expungement eliminated the legal basis for his removal order because Vega-Anguiano met the requirements of the Federal First Offender Act. Thus, by the time of Vega-Anguiano’s removal in 2008, his removal order lacked a valid legal basis.” In addition, the Court determined that “there is no diligence requirement that limits the time during which a collateral attack on that deportation or removal order may be made based on a showing of gross miscarriage of justice.”

The full text of Vega-Anguiano v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/19/15-72999.pdf