FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALEJANDRO LOPEZ VAZQUEZ, No. 18-70329 Petitioner, Agency No. v. A074-608-073 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Department of Homeland Security Argued and Submitted August 12, 2021 Seattle, Washington Filed November 12, 2021 Before: Carlos T. Bea, Daniel A. Bress, and Lawrence VanDyke, Circuit Judges. Opinion by Judge Bress 2 LOPEZ VAZQUEZ V. GARLAND SUMMARY * Immigration Dismissing Alejandro Lopez Vazquez’s petition for review of a 2017 Department of Homeland Security order reinstating his 1996 removal order, the panel concluded that Lopez’s 1996 order had a valid basis both when it was issued and when he was removed, and therefore, he failed to establish a miscarriage of justice that would permit the court to entertain a collateral attack on the 1996 order. Lopez collaterally attacked his 1996 order on the ground that the drug conviction underlying that order was vacated in 2014. It was undisputed that Lopez’s conviction was legally valid at the time his original removal order was issued and when it was executed. The panel explained that in reviewing a reinstatement order, the court has jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to entertain a collateral attack on the underlying removal order only if the petitioner can show that he or she suffered a gross miscarriage of justice in the initial immigration hearing. Lopez argued that he suffered a gross miscarriage of justice because the vacatur of his conviction made his removal order “void ab initio.” The panel concluded that this argument failed under Hernandez-Almanza v. INS, 547 F.2d 100 (9th Cir. 1976), superseded by statute on other grounds as stated in Planes v. Holder, 652 F.3d 991 (9th Cir. 2011), and Vega-Anguiano v. Barr, 982 F.3d 542 (9th Cir. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LOPEZ VAZQUEZ V. GARLAND 3 2019). In Hernandez-Almanza, the petitioner was removed based on a drug conviction and later obtained a nunc pro tunc order vacating that conviction. This court rejected the petitioner’s argument that his exclusion order was void, holding that a valid exclusion order is not disturbed by post- conviction relief and that, therefore, the petitioner failed to meet the gross miscarriage of justice standard. In contrast, in Vega-Anguiano, the petitioner was ordered removed based on a valid conviction, but his conviction was expunged before the government executed the removal order. The court held that this was one of the rare cases in which a collateral attack was permitted under the gross miscarriage of justice standard. In light of those precedents, the panel concluded that when a removal order is legally valid at the time of entry and execution, a petitioner cannot challenge a reinstatement of that order as a gross miscarriage of justice based on developments that call into question the original removal order, but which occurred after the petitioner was …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals