The Ninth Circuit has determined that convictions vacated under California Penal Code section 1473.7 are cognizable for immigration purposes. “We need not dust off our dictionary or delve into the legislative history of § 1473.7(a)(1) to see that the statute provides a vehicle to vacate a conviction to address a substantive or procedural error that renders a conviction ‘legally invalid.’ The plain text does not permit a state court to vacate a conviction to alleviate any immigration consequences arising from the conviction or sentence.”
The court also clarified the due diligence aspect of a motion to reopen based a vacatur. “[T}he proper starting point for measuring diligence in this case is when a reasonable person in Bent’s position would be put on notice of the error underlying his motion to reopen.” The Court then concluded that diligence should be measured from the date of issuance of a Notice to Appear citing the conviction as a basis for removal. “On the one hand, Bent did not pursue vacatur of his conviction for five years after he received the NTA. That may well undermine his ability to demonstrate that he diligently pursued his rights. But on the other hand, there is also good reason to believe that Bent did diligently pursue his rights during this period. After all, due diligence requires a showing of reasonable diligence, not ‘maximum feasible diligence.’ That is, we do not require petitioners to demonstrate ‘an overzealous or extreme pursuit of any and every avenue of relief.’ In assessing a petitioner’s diligence, we ‘consider the petitioner’s overall level of care and caution in light of his or her particular circumstances,’ and we are ‘guided by decisions made in other similar cases . . . with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.’
“Here, after Bent’s NTA put him on notice that he was removable, he fervently defended against removal, first before the IJ and then several times before the BIA and this court. He undertook these efforts after spending nearly a decade in prison and while in immigration detention.6 Indeed, the basis for Bent’s vacatur—§ 1473.7(a)(1)—did not come into effect until 2017, long after his unconstitutional conviction.7 But that was not all. In 2022, while his petition for review of his final order of removal was still pending, Bent pursued and obtained his state court vacatur. Approximately one month later, before his merits petition was even fully briefed before us, he also filed his motion to reopen. He was so diligent that his petitions for review on the merits and on the motion to reopen are both presently before us.” The Court also noted that it would “leave it to the BIA10 to determine on remand whether the vacatur of Bent’s conviction on constitutional grounds under § 1473.7(a)(1) demonstrates that he faced extraordinary circumstances for purposes of equitable tolling.”
The full text of Bent v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/15/22-1910.pdf
An amended decision can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/06/22-1910.pdf
