FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCISCO JAVIER VEGA- No. 15-72999 ANGUIANO, Petitioner, Agency No. A075-268-076 v. WILLIAM P. BARR, Attorney OPINION General, Respondent. On Petition for Review of an Order of Immigration and Customs Enforcement Argued and Submitted April 8, 2019 Seattle, Washington Filed November 19, 2019 Before: William A. Fletcher, Consuelo M. Callahan, and Morgan Christen, Circuit Judges. Opinion by Judge W. Fletcher; Concurrence by Judge Christen; Dissent by Judge Callahan 2 VEGA-ANGUIANO V. BARR SUMMARY* Immigration Granting Francisco Vega-Anguiano’s petition for review of an order of Immigration and Customs Enforcement (“ICE”) reinstating his prior order of removal, the panel held that: 1) because Vega-Anguiano timely challenged his reinstatement order, the court had jurisdiction to review that order, including the collateral attack on his underlying removal order; 2) Vega-Anguiano established a miscarriage of justice in his underlying proceedings because the order lacked a valid legal basis when it was executed; and 3) there is no diligence requirement that limits the time during which a collateral attack on a prior order may be made, in reinstatement proceedings, based on a showing of a gross miscarriage of justice. In 1998, an Immigration Judge ordered Vega-Anguiano removed based on a conviction for possession of a controlled substance, but the government took no steps to remove him. In 1999, his conviction was expunged under California Penal Code § 1203.4, a rehabilitative statute. As the panel explained, for convictions occurring prior to July 14, 2011, the government may not remove an alien on the basis of a simple drug possession conviction, if the conviction has been expunged under a state rehabilitative statute and the alien satisfies the requirements of the Federal First Offender Act (“FFOA”). The panel noted that the government conceded at * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. VEGA-ANGUIANO V. BARR 3 oral argument that Vega-Anguiano met all the requirements of the FFOA when his conviction was expunged. In 2008, Vega-Anguiano was removed to Mexico pursuant to the 1998 order, but illegally reentered the United States. In 2013, he moved to reopen his 1998 proceedings, but the BIA denied the motion as untimely, and this court denied his petition for review. In 2014, Vega-Anguiano was convicted of “misprison of a felony” related to cock-fighting, and ICE reinstated his prior order of removal. Vega- Anguiano filed a timely petition for review of the reinstatement order. The panel explained that the court has jurisdiction to review a reinstatement order, and that some collateral attack is permitted on an underlying removal order, during review of a reinstatement order, if the petitioner can show that he suffered a gross miscarriage of justice in the initial deportation proceeding. However, the government argued that Vega-Anguiano’s challenge to his 1998 order was untimely, and that therefore, the court lacked jurisdiction under 8 U.S.C. § 1252(b)(1), which requires a petition for review to be filed within ...
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