FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LUIS PEREZ-CAMACHO, No. 19-72063 Petitioner, Agency No. v. A038-974-117 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 11, 2022 Pasadena, California Filed August 1, 2022 Before: Sandra S. Ikuta, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges. Opinion by Judge Ikuta 2 PEREZ-CAMACHO V. GARLAND SUMMARY* Immigration Denying in part and dismissing in part Luis Perez- Camacho’s petition for review of a decision of the Board of Immigration Appeals, the panel concluded that the BIA did not err in denying Perez-Camacho’s motion to reopen, which challenged his removal order on the ground that his underlying conviction was allegedly invalid. In 2005, Perez-Camacho, a lawful permanent resident, was ordered removed based on a 1997 conviction. He then filed a motion to reopen, which was denied. In 2018, he filed a second motion to reopen, claiming that he was no longer removable as charged because a state court, in 2018, had modified his conviction due to a “constitutional defect” in his criminal proceeding. Perez-Camacho argued that his removal order was invalid, and therefore, the BIA should reopen proceedings, set aside his removal order, and terminate proceedings. The BIA denied the motion as both number- barred (because an alien may file only one motion to reopen) and time-barred (because a motion to reopen must be filed within 90 days of a final order of removal). The BIA also held that equitable tolling was not available and that sua sponte reopening was not warranted. The panel concluded that none of the circumstances in which an alien may challenge a removal order based on the claim that a conviction underlying a removal order is invalid * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PEREZ-CAMACHO V. GARLAND 3 were applicable here. First, the BIA’s authority to consider such a challenge when the alien brings a motion to reopen that is not time- or number-barred was not implicated here. Next, Perez-Camacho could not raise arguments that are available for an alien challenging a reinstatement proceeding or reinstatement order. The panel explained that an alien challenging reinstatement may show that he suffered a gross miscarriage of justice on the ground that an underlying conviction was invalid due to a merits-based defect, and would not be required to show due diligence. In contrast, Perez-Camacho’s removal order had not been reinstated and his challenge to his removal order was subject to the regulatory number and time bar for motions to reopen. The panel further explained that Perez-Camacho did not argue to the BIA that his motion met any regulatory exception to the time and number bar, and any such argument was unexhausted. The panel also concluded that the BIA did not abuse its discretion in deciding that equitable tolling of the time and number bar …
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