Bench Memos

Law & the Courts

More Cert Bait from Ninth Circuit Judge Fletcher

Today’s order from the Ninth Circuit in Vega-Anguiano v. Barr has plenty of features that scream for Supreme Court certiorari review: (1) a majority opinion by Judge William Fletcher, (2) over a dissent by Judge Consuelo Callahan, (3) in an immigration case, involving (4) an alien who was ordered removed in 1998, (5) but who illegally re-entered the United States weeks after he was finally removed in 2008, (6) who, after being convicted of a felony in 2014, had his removal order reinstated, and (7) who now challenges the basis for the 1998 removal order, all along with (8) a twelve-judge dissent from the denial of rehearing en banc, which (9) points out that Fletcher’s ruling conflicts with decisions by all eight other federal courts of appeals that have addressed the question.

On the other hand, the alien’s 1991 conviction for cocaine possession on which his 1998 removal order was predicated was expunged in 1999.

Here are excerpts from Judge Mark Bennett’s dissent from denial of rehearing en banc (again, joined by eleven other judges):

This case turns on a straightforward statute. So plain is the statutory text that all eight other circuits that have interpreted the statute reached the same conclusion.…

Under the Immigration and Nationality Act, when an alien is ordered removed and seeks to challenge the removal, “[t]he petition for review must be filed not later than 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1) (emphasis added). If a removed alien illegally reenters the country, the government may opt for an expedited removal process by issuing a reinstatement order that gives effect to the original order of removal. See 8 U.S.C. § 1231(a)(5).

The question is the following: When there is both an original order of removal and a new reinstatement order, what does “order of removal” in § 1252(b)(1) mean? Our sister circuits think “order of removal” means “order of removal.” The majority, apparently unhappy with the statute Congress wrote, rewrites “order of removal” as “reinstatement order.” The opinion then works backwards to rationalize the rewrite through a series of inaccurate and internally inconsistent statements. No wonder our court is on the solitary side of an eight-to-one circuit split.…

The majority’s decision will lead to unjust outcomes and perverse incentives. In Morales-Izquierdo, an en banc panel of our court warned that “an alien who respects our laws and remains abroad after he has been removed should have no fewer opportunities to challenge his removal order than one who unlawfully reenters the country despite our government’s concerted efforts to keep him out.” The majority’s decision turns this obvious principle on its head and rewards those who break the law. We routinely deny petitions for review that do not meet § 1252(b)(1)’s thirty-day deadline. The majority’s decision waives that timeliness requirement and gives the removed alien a second bite at the apple, provided that he illegally reenters the country and is subject to a reinstatement order. The alien with the same claim who does not illegally reenter, however, gets no such chance.

The facts here add another layer of perversity. Vega-Anguiano has already come before our court: In 2014, he sought judicial review of the BIA’s denial of his untimely motion to reopen. He requested equitable tolling of the deadline for a motion to reopen, explaining that his “1991 simple possession was expunged pursuant to California’s rehabilitative statute,” and arguing that the “conviction may not form the basis for any finding of inadmissibility or deportability.” A prior panel of our court affirmed the BIA’s denial of the motion to reopen, explaining that it was filed fourteen years too late and that Vega-Anguiano failed to establish that he acted with due diligence.

Under the majority’s rule, due diligence is not required. Vega-Anguiano can essentially reverse the prior panel’s decision and get a third bite at the apple, only because of his illegal reentry.

(I have omitted or simplified some citations.)