Avila-Sanchez v. Mukasey ( 2007 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    OSCAR JAVIER AVILA-SANCHEZ,                
    Petitioner,                  No. 06-70663
    v.
            Agency No.
    A36-649-343
    MICHAEL B. MUKASEY,* Attorney
    General,                                             OPINION
    Respondent.
    
    Petition to Review an Order of the
    Board of Immigration Appeals
    Submitted October 15, 2007**
    Pasadena, California
    Filed December 3, 2007
    Before: Ferdinand F. Fernandez and Kim McLane Wardlaw,
    Circuit Judges, and Raner C. Collins,*** District Judge.
    Opinion by Judge Fernandez
    *Michael B. Mukasey is substituted for his predecessor, Alberto R.
    Gonzales, as Attorney General of the United States. Fed. R. App. P.
    43(c)(2).
    **The panel unanimously finds this case suitable for decision without
    oral argument. Fed. R. App. P. 34(a)(2).
    ***The Honorable Raner C. Collins, United States District Judge for
    the District of Arizona, sitting by designation.
    15631
    AVILA-SANCHEZ v. MUKASEY             15633
    COUNSEL
    Carlos Vellanoweth, John Wolfgang Gehart, Elena Yampol-
    sky, and Russell Marco Jauregui, Vellanoweth & Gehart,
    LLP, Los Angeles, California, for the petitioner.
    Edward J. Duffy, U.S. Department of Justice, Office of Immi-
    gration Litigation, Washington, D.C., for the respondent.
    15634                 AVILA-SANCHEZ v. MUKASEY
    OPINION
    FERNANDEZ, Circuit Judge:
    Oscar Javier Avila-Sanchez, a native and citizen of Mexico,
    petitions for review of the Board of Immigration Appeals’
    order denying his special motion to reopen so that he could
    apply for a waiver of inadmissibility pursuant to former 
    8 U.S.C. § 1182
    (c) (1994).1 The BIA determined that due to the
    fact of Avila’s prior deportation and subsequent illegal reen-
    try, he was not entitled to relief. In addition, it refused to
    allow him to collaterally attack prior proceedings. We deny
    the petition.
    BACKGROUND
    Avila was a lawful permanent resident, who first entered
    the country in 1980. In July 1994, Avila pled guilty and was
    convicted of possession of a controlled substance (heroin),
    pursuant to California Health and Safety Code § 11350. In
    November 1996, the former Immigration and Naturalization
    Service issued an Order to Show Cause charging Avila with
    a controlled substance violation, and placed him in deporta-
    tion proceedings. [First Proceeding]. In those proceedings, the
    Immigration Judge found Avila deportable as charged, ineligi-
    ble for relief under § 1182(c), and ineligible for cancellation
    of removal.
    Avila filed a timely motion for reconsideration, in which he
    requested a waiver of inadmissibility under § 1182(c).2 The
    1
    This is also often referred to as the Immigration and Nationality Act
    § 212(c).
    2
    At the time that Avila pled guilty, 
    8 U.S.C. § 1182
    (c) read in pertinent
    part: “The first sentence of this subsection shall not apply to an alien who
    has been convicted of one or more aggravated felonies and has served for
    such felony or felonies a term of imprisonment of at least 5 years.” 
    8 U.S.C. § 1182
    (c) (1994).
    AVILA-SANCHEZ v. MUKASEY                    15635
    BIA applied the 1996 version of § 1182(c) and on February
    5, 1998, denied the motion. It held that In re Soriano, 
    21 I. & N. Dec. 516
     (BIA 1996) was dispositive, and that Avila
    was statutorily ineligible for relief as an “ ‘alien who is
    deportable by reason of having committed any criminal
    offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D)
    [
    8 U.S.C. § 1251
    (a)(2)(A)(iii), (B), (C), or (D)], or any
    offense covered by section 241(a)(2)(A)(ii) [
    8 U.S.C. § 1251
    (a)(2)(A)(ii)] for which both predicate offenses are
    covered by section 241(a)(2)(A)(i) [
    8 U.S.C. § 1251
    (a)(2)
    (A)(i)].’ ”3 Avila was represented by counsel, but neither filed
    a petition for review or habeas corpus from that order, nor
    asked for a stay of deportation to challenge the order of
    removal. He was deported on February 20, 1998.
    Avila illegally returned to the United States in July 1998.
    In April 2005, he was stopped for suspicion of driving under
    the influence and detained. The Department of Homeland
    Security requested that he remain in custody, and on April 29,
    2005, issued a Notice to Appear. [Second Proceeding]. The
    Notice to Appear charged that Avila was not a citizen or
    national of the United States and that he was removable for
    entering the United States without inspection after he had
    been previously removed. Avila admitted that he was remov-
    able as charged, but waited to collaterally attack his prior
    removal. On June 28, 2005, the IJ ordered him removed.
    However, on April 20, 2005, Avila had filed with the BIA
    an unopposed special motion to reopen the First Proceeding
    — his 1998 removal proceeding — to seek § 1182(c) relief
    under 
    8 C.F.R. § 1003.44
    . In that motion, Avila failed to
    advise the BIA that he had been deported previously pursuant
    to a final order of removal, which made him ineligible for
    special reopening. Based on that incomplete information, the
    3
    This was due to a change in the provisions of § 1182(c) made by the
    Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 
    110 Stat. 1214
     (1996), which became effective April 24, 1996.
    15636             AVILA-SANCHEZ v. MUKASEY
    BIA reopened the First Proceeding and remanded the case on
    July 7, 2005.
    The day after the BIA reopened the First Proceeding, Avila
    appealed the IJ’s June 2005 order of removal in the Second
    Proceeding to the BIA. Avila then requested that the BIA con-
    solidate his removal proceeding (the Second Proceeding) with
    the motion to reopen his First Proceeding. On August 11,
    2005, the IJ in the First Proceeding requested that the BIA
    reconsider its decision to reopen the First Proceeding because
    Avila’s departure and illegal reentry made him ineligible to
    have his case reopened under 
    8 C.F.R. § 1003.44
    .
    In September 2005, the BIA dismissed Avila’s appeal of
    the June 28, 2005, removal order in the Second Proceeding.
    He moved the BIA to reconsider that decision and renewed
    his request to consolidate the removal case (Second Proceed-
    ing) with the special motion to reopen (First Proceeding). On
    January 23, 2006, the BIA issued orders in both proceedings.
    The first order denied Avila’s motion for reconsideration of
    its decision denying his appeal from the June 2005 order of
    removal in the Second Proceeding. The second order held that
    the BIA had erred in granting Avila’s motion to reopen the
    First Proceeding. The BIA pointed out that Avila was previ-
    ously deported and had illegally reentered the United States,
    and was, therefore, ineligible for reopening. See 8 C.F.R.
    1003.44(k)(2). It, therefore, vacated its July 2005 reopening
    decision, reinstated Avila’s motion to reopen, and denied it.
    This petition for review followed.
    STANDARD OF REVIEW
    We review the BIA’s decision to deny a motion to reopen
    for abuse of discretion. Mohammed v. Gonzales, 
    400 F.3d 785
    , 791 (9th Cir. 2005). We review constitutional and legal
    issues de novo. Ram v. INS, 
    243 F.3d 510
    , 516-17 (9th Cir.
    2001); Mohammed, 
    400 F.3d at 791-92
    . However, we do
    accord appropriate deference to the BIA. See INS v. Aguirre-
    AVILA-SANCHEZ v. MUKASEY               15637
    Aguirre, 
    526 U.S. 415
    , 423-25, 
    119 S. Ct. 1439
    , 1445-46, 
    143 L. Ed. 2d 590
     (1999).
    DISCUSSION
    Avila claims that the BIA erred when it denied his petition
    to reopen the First Proceeding so that he could challenge its
    decision of February 5, 1998, that he was not entitled to
    1182(c) relief, and so that he could apply for that relief. At the
    time of the February 5, 1998, decision, the BIA had relied
    upon its prior determination4 that the AEDPA amendments to
    § 1182(c) applied to people who had pled guilty to offenses
    before it was enacted. As is well known, the courts later deter-
    mined that the contrary was true. See INS v. St. Cyr, 
    533 U.S. 289
    , 326, 
    121 S. Ct. 2271
    , 2293, 
    150 L. Ed. 2d 347
     (2001);
    see also Magana-Pizano v. INS, 
    200 F.3d 603
    , 611-13 (9th
    Cir. 1999).
    Thereafter, a regulation was adopted to provide for a spe-
    cial motion to reopen cases where relief had been erroneously
    denied under the old regime. See 
    8 C.F.R. § 1003.44
    (a)-(c).
    However, that regulation specifically provides that: “This sec-
    tion does not apply to: . . . (2) Aliens issued a final order of
    deportation or removal who then illegally returned to the
    United States.” 
    Id.
     § 1003.44(k)(2). The BIA interpreted that
    regulation to preclude reopening of the First Proceeding. The
    BIA did so because Avila had undoubtedly been deported
    while he was subject to a final order of deportation issued
    February 5, 1998, and had unquestionably returned illegally.
    On its face, the BIA’s decision was not erroneous.
    However, Avila argues the BIA erred because the order of
    deportation in the First Proceeding was illegal, and could not,
    therefore, have been the basis for his removal from the United
    States. Similarly, he asserts that he should have been able to
    4
    See In re Soriano, 21 I. & N. Dec. at 540.
    15638                AVILA-SANCHEZ v. MUKASEY
    collaterally attack the result of the First Proceeding. He is
    wrong.
    [1] As we have explained before, the mere fact that the BIA
    made an interpretation error was insufficient to make its order
    “unlawful.” See Alvarenga-Villalobos v. Ashcroft, 
    271 F.3d 1169
    , 1172-73 (9th Cir. 2001). In that case, the alien had been
    deported after having been denied § 1182(c) relief, but
    returned illegally. Id. at 1171. He asserted that because the
    original determination was erroneous, his deportation was
    unlawful. Id. We rejected that argument and pointed out that
    at the time of his deportation, the BIA’s action was in accord
    with the rules that then existed and those were not overturned
    until over two years later. Id. at 1172. As we stated:
    Alvarenga contends that [the provision in ques-
    tion] does not apply to him because the statute
    applies only to lawful removal orders. However, we
    need not resolve this issue, because, as we have
    explained, Alvarenga’s deportation order was per-
    fectly lawful under the law at the time he was
    deported. “[I]t has long been established that a final
    civil judgment entered under a given rule of law may
    withstand subsequent judicial change in that rule.”
    Id. at 1173. For all practical purposes, this case is the same.5
    Thus, Avila’s argument about “lawfulness” cannot save his
    position regarding the reopening of the First Proceeding or,
    for that matter, allowance of a collateral attack on the First
    Proceeding results.
    [2] But, argues Avila, the regulation violates equal protec-
    tion principles because the treatment it accords to removed
    aliens differs from and is less favorable than the treatment
    accorded to those who have not yet been removed. However,
    5
    That the order of deportation for Avila came just under two years ear-
    lier, rather than over two years earlier, is of no significance.
    AVILA-SANCHEZ v. MUKASEY                      15639
    in Alvarenga-Villalobos we disposed of a similar claim
    regarding the distinction between classes of aliens applying
    for § 1182(c) relief. As we said: “Distinctions between differ-
    ent classes of aliens in the immigration context are subject to
    rational basis review and must be upheld if they are rationally
    related to a legitimate government purpose.” Id. at 1174. And,
    we held: “The government has a legitimate interest in discour-
    aging aliens who have already been deported from illegally
    reentering, and this distinction is rationally related to that pur-
    pose.” Id. Avila’s claim lacks puissance.
    Avila’s due process assertions fare no better. His claim that
    the regulation violates due process is simply an allotrope of
    his other attacks upon it, and has as much effect. See id. at
    1173-74. His ululation about the fact that the post-reentry por-
    tion of the First Proceeding was before one judge, while the
    Second Proceeding was before a different judge is otiose. Any
    awkwardness was largely due to his own omissions.6 In any
    event, even if there were some error, the First Proceeding and
    the Second Proceeding were both before the BIA when it
    issued its ultimate orders on January 23, 2006, and Avila has
    not demonstrated any prejudice. See Larita-Martinez v. INS,
    
    220 F.3d 1092
    , 1095 (9th Cir. 2000).
    CONCLUSION
    [3] Avila was removed in February 1998 because of his
    criminal history. He returned illegally in 1998. When stopped
    in 2005 for suspicion of driving under the influence and
    detained, he sought to reopen proceedings and to attack the
    prior proceeding. He was ultimately denied that relief, and
    6
    When Avila asked the BIA to reopen the First Proceeding, he did not
    bother mentioning that he had been deported and had then reentered the
    United States without inspection. Also, when he asked the IJ who was
    hearing the mistakenly reopened First Proceeding to transfer the matter to
    the IJ who was hearing the Second Proceeding, he did not bother mention-
    ing that the Second Proceeding had already been decided by that IJ and
    was on appeal to the BIA.
    15640             AVILA-SANCHEZ v. MUKASEY
    was again ordered removed. He, with much febrile hyperbole,
    claims that denying him the right to reopen or collaterally
    attack the prior proceedings violates his constitutional rights.
    We disagree. The provisions of 
    8 C.F.R. § 1003.44
    (k)(2) are
    constitutional and were not improperly applied to Avila. Nor
    did the BIA err when it refused to allow a collateral attack on
    the prior proceeding.
    Petition DENIED.