On August 14, 2013, the Ninth Circuit issued a decision in Villa-Anguiano v. Holder. What at first blush may seem like a victory for immigrant rights is actually a rather disappointing case and of extremely limited positive benefit.
By way of background, in most cases, when a person (who is not being removed at the border where he or she applied for admission) is being removed, he or she has the right to an immigration court hearing, an appeal to the Board of Immigration Appeals, and review of the decision by a court of appeals (at least regarding legal and constitutional issues). Once all the appeals are decided or the opportunity to pursue appeals waived, the decision is final. From the date of a final decision of a case before the BIA, an alien has 90 days to reopen a case based on previously unavailable new facts. Of course, like nearly everything, there are some exceptions. After that, the case is over and the removal order irrevocable. Once the alien is actually removeded, the BIA considers that its jurisdiction is over – except if a motion to reopen is filed within 90 days (though the BIA takes this position reluctantly).
When a person comes back or attempts to come back to the United States without permission after having been removed, the person’s prior removal is subject to reinstatement. INA § 241(a)(5). Once a deportation officer determines that person’s identity, that he or she has a prior removal order, and that he or she had come back illegally, the person is simply re-removed. According to Villa-Anguiano, whether to reinstate the old order or place the alien back in removal proceedings is a decision at the discretion of immigration officers.
When an alien is removed, coming back without permission is a crime. Before reinstating the removal order, the Department of Justice can prosecute the person for illegal re-entry. To be convicted, the government must prove that the alien re-reentered without permission and that the underlying removal order is a lawfully-sound one. If an alien is misinformed about his eligibility for relief from removal which he plausibly could have obtained or denied the right to appeal either by not informing him of the right to appeal or the actual posture of his case – like his right to relief from removal – the underlying removal order can be found to be unlawful. 8 U.S.C. § 1326(d)
Mr. Villa-Anguiano was ordered removed in 1997. He came back without permission in 2001. In 2008 he was encountered by law enforcement and arrested. Immigration officers reinstated his removal order, but before actually re-removing him, they handed him over to the U.S. Attorney’s office to prosecute for illegal reentry. INA § 276. The federal District Court concluded that Mr. Villa-Anguiano’s prior removal hearing was flawed because he was not advised of his right to appeal and the right to relief from removal which it found he plausibly could have been granted. The criminal case was tossed. He was then returned to immigration custody and re-removed based on the re-instated 1997 removal order.
This is where the legal conundrum arises. How, you may ask, can a person be re-removed based on a removal order that a criminal court found to be unlawful? If he cannot be convicted of unlawful re-entry because the removal order was flawed, how can he be re-removed based on the same flawed order?
This is what one would think that the Villa-Anguiano case would be about.
Except it is not. The Ninth Circuit Court of Appeals decided in favor of Mr. Villa-Anguiano, but what the court found problematic in the case is that the reinstatement order was issued before the criminal trial which was dismissed. Officers did not know at that time that a District Court judge would find (and the U.S. Attorney’s office accepted or it could have appealed) that the prior removal order was unlawful. The Court of Appeals concluded that immigration officers must re-evaluate their decision to re-instate the removal order in light of the finding of the criminal court judge. The court did not say what immigration officers must decide – all they said was that the decision should be made again taking into consideration the decision of the criminal court about the underlying removal order.
Why such a narrow holding? Mr. Villa-Anguiano did not seek to reopen his case with the Board of Immigration Appeals after he beat the illegal entry charge, which was a mechanism to reopen the underlying case after the District Court dismissed his illegal reentry case. Admittedly, filing a motion to reopen would have been futile as the BIA would have denied the motion, concluding that it lacked jurisdiction as Mr. Villa-Anguiano was deported and it had been more than 90 days since he was ordered deported, but then the issue of re-removing a person with a faulty removal order would have been squarely before the Court of Appeals. So exactly what was before the court was not entirely clear. Mr. Villa-Anguiano could not exactly argue that the immigration court system (immigration court and BIA) should have reopened his case when he never asked them to do so. Instead, the Ninth Circuit ruled on the only process that was before it – the reinstatement of the old order which was decided before the criminal case for illegal entry was tossed.
The holding itself is of very limited value. It is about the rare situation where an alien is removed, comes back, is arrested, is charged with illegal entry, wins his illegal entry case by challenging the underlying order, and then his old order is reinstated. The case holds that in those rare situations, the reinstatement decision must be made after the criminal court dismisses the criminal case. A court of appeals could not interfere with whatever the agency decides – to reinstate or not reinstate – as long as the decision is made after the criminal court dismissed the case.
However, the case is worse than merely not particularly relevant because it seems to foreclose the possibility that a motion to reopen would have been of benefit to Mr. Villa-Anguiano. This is because the decision did state that the underlying removal order could not be undone jut because a district court found it faulty. The decision stated, “As we made clear in Morales- Izquierdo [v. Gonzales], allowing an alien to manufacture an opportunity to contest his earlier removal by reentering the country illegally , thereby triggering removal proceedings a new, would create perverse incentives.”
As we have explained before, the mere fact that the BIA made an interpretation error was insufficient to make its order ‘unlawful….’ In [Alvarenga-Villalobos], the alien had been deported after having been denied § 1182(c) relief, but returned illegally…. He asserted that because the original determination was erroneous, his deportation was unlawful. 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. As we stated: Alvarenga contends that [the provision in question] 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 perfectly lawful under the law at the time he was deported. “[I]t has long been established that final civil judgment entered under a given rule of law may withstand subsequent judicial change in that rule.”
The fact that the Supreme Court affirmed the legality of the reinstatement provision despite the fact that it allows for the reinstatement of potentially faulty removal orders in 2006 in Fernandez-Vargas v. Gonzales does not advance the cause for the existence of motions to reopen either.
So, in essence, the arguments Mr. Villa-Anguiano could have made had he sought to reopen his removal proceeding seem foreclosed by BIA and Ninth Circuit case law. However, all is not completely lost as there is still some odd dicta in the cases. For example, in Morales- Izquierdo v. Gonzales, which the Villa-Anguiano court cited in favor of its statement that Mr. Villa-Anguiano could not reopen his case, the court also wrote:
… 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. If Morales has a legitimate basis for challenging his prior removal order, he will be able to pursue it after he leaves the country, just like every other alien in his position. If he has no such basis, nothing in the Due Process Clause gives him the right to manufacture for himself a new opportunity to raise such a challenge. The contrary conclusion would create a new and wholly unwarranted incentive for aliens who have previously been removed to reenter the country illegally in order to take advantage of this self-help remedy. It would also make a mockery of aliens who do respect our laws and wait patiently outside our borders seeking lawful admission. Nothing in the Constitution requires such a perverse result.
The statement gives one the impression that the Morales- Izquierdo court believes there is a remedy for a person like Mr. Villa-Anguiano, though coming back to the U.S. and challenging the removal in criminal court and then applying that finding to the underlying removal case to forestall re-instatement is not the remedy. If it is not coming back and challenging the order and it is not seeking to reopen from outside the United States, then either the Morales- Izquierdo court (and other cases with such promising dicta) is wrong or there is a form of relief available, but we don’t know what it is yet.
One idea may be to challenge a faulty removal order by seeking sua sponte reopening by the BIA pursuant to 8 C.F.R. § 1003.2(a). To the extent that the BIA does not believe it has jurisdiction after an alien has departed (or 90 days after an alien has departed), perhaps the Court of Appeals will disabuse it of that view, as it has in the pre-90 day motion to reopen cases. Perhaps, after the Supreme Court’s decision in Kucana v. Holder expanding judicial review of discretionary decisions of the BIA, an appellate court will feel empowered to order the BIA to make reasoned decisions on the merits of reopening old cases instead of declining to accept jurisdiction to hear them. The Kucana case states, “We express no opinion on whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” The Seventh Circuit has found jurisdiction to review legal and constitutional issues in sua sponte motions to reopen.
One more thing. The dissenting judge in Villa-Anguiano called Mr. Villa-Anguiano a “convicted killer” twice. Mr. Villa-Anguiano pled guilty to voluntary manslaughter without admitting to any facts about the incident that led to a person’s death. The facts available are that Mr. Villa-Anguiano’s 15 year old brother shot someone at the mall and Mr. Villa-Anguiano was with his brother at the time. Mr. Villa-Anguiano asserted he did not know his brother had a gun and his brother asserted that Mr. Villa-Anguiano had nothing to do with the shooting. Perhaps these facts are part of the reason the District Court found that relief was plausible. In light of them, perhaps, though literally correct, it is extreme to call him a convicted killer – twice. Posted August 25, 2013.