Recent case clarifies the bad news about motions to reopen.

Sunday, January 29th, 2023
By: Jonathan MontagJ.D.

A recent case in the Ninth Circuit, Perez-Camacho v. Garland,  reminded me of a blog post which I thought of recent vintage, but thanks to the Covid time warp, was actually six years ago. The case involved a former U.S. Marine who was able to return to the United States after having been deported approximately fifteen years earlier after a conviction and two year prison sentence for animal cruelty.

The blog from 2017 discussed the tension in the law between finality and justice in light of changed circumstances. A person is deported in Year X for Crime Y. Several years later, let’s say 10 years later, (Year X +10), Crime Y would no longer sustain a removability charge. This could be like the Marine gentleman, above, because his crime was pardoned by the governor. It could be a court decision holding that the crime is/was not a removable offense. It could be that some post-conviction relief made the removable offense no longer a removable offense by some sort of vacateur or change in sentence (Crime Y+). If Crime Y+ is no longer a removable offense in Year X+10, what to do with the Year X conviction?

In the case of the Marine, concerns for finality and the actual deportation of the individual did not outweigh the humanitarian concerns for the individual. But, notwithstanding the generosity to the Marine, his treatment seemed contrary to the body of law cited in the blog post that rejected reopening in such situations. As one court wrote in Alvarenga Villalobos v. Ashcroft in 2001, citing the Supreme Court in Teague v. Lane from 1989, “[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.”

Practitioners are caught in a bind. Do they file a motion to reopen despite all the obstacles because if good things happen to some, why not my client? Or do they forego filing a motion to reopen and miss out on the prospect of a miracle happening twice? If you file and courts reject the motion based on current precedent, then you’re the idiot. If you don’t file, some other attorney does and the removal order is vacated, then you’re the idiot again. In the Punnet Square of outcomes (albeit, assuming equal likelihood of granting or denying a motion), half the time you’re an idiot and half the time you’re a genius.

Grant motion                     Deny motion

File motion to reopen               Genius                                 Idiot

Don’t file and someone             Idiot                                   Genius
else does


Attempting to take the ambiguity away, the Ninth Circuit Court of Appeals, in Perez-Camacho v. Garland, 42 F.4th 1103 (9th Cir. 2022),  favors strongly the finality view over the justice in light of changed circumstances view.

The Perez-Camacho court confronted two conflicting paths. According to the Immigration and Nationality Act, “[a]n alien may file one motion to reopen proceedings” and must file it “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(A) and (C)(I). On the other hand, a regulation states at 8 C.F.R. § 1003.2(c)(3)(v) that a case can be reopened when there is:

(A) A material change in fact or law underlying a removability ground or grounds … that occurred after the entry of an administratively final order that vitiates all grounds of removability applicable to the alien; and

(B) The movant exercised diligence in pursuing the motion to reopen.

In the case of Mr. Perez-Camacho, he was placed in removal proceedings after a 1997 domestic violence conviction. He missed a hearing in 2005 and was ordered removed in absentia. He sought to reopen the proceedings in 2005, but the motion was denied. In 2018 he filed a motion to reopen based on the Supreme Court decision in Pereira v. Sessions, which I have blogged about a few times, like here, a case about a faulty charging document that initiates removal proceedings. He supplemented that motion showing that his domestic violence conviction was changed because of legal defect and he was re-convicted of a new crime that was not a removable offense.

Did the Perez-Camacho court say, “Wow, your case was started with a faulty document and your crime is not a deportable one now, so we will allow you to reopen or did the court say, “Your conviction was in 2005 and it is now, 2022, so there was a lack of diligence in pursuing your motion to reopen, so forget it.

Unfortunately, for Mr. Perez-Camacho, the court went with the latter.

About the time and number limitations to motions (one motion to reopen proceedings that must file it within 90 days of the date of entry of a final administrative order of removal), the Court wrote:

Perez-Camacho did not argue to the BIA that his motion meets any exception to [the number and time restrictions on motions to reopen]…. Therefore, the BIA did not err in denying Perez-Camacho’s motion to reopen as time- and number-barred….

About the change in the law and diligence in addressing it, the Court wrote, “Here, Perez-Camacho waited 21 years (13 of which occurred after his final order of removal was rendered) to seek modification of his conviction in state court based on the defense counsel’s alleged ineffective representation in 1997, and Perez-Camacho provided no basis as to his ‘reasonable efforts to pursue relief’ during the 21-year period, nor provided any explanation for such an “exceedingly long” delay. [] Therefore, the BIA did not abuse its discretion in concluding that equitable tolling was not available.”

The goal of the decision, like most decisions, is to give the impression that this is a straight legal call and the Court is, as Chief Justice John Roberts said, just calling the balls and strikes, or in this case, safe or out. I do sense some disingenuousness about it. The gripe about the change in conviction is that it occurred in 2018, 21 years after the 1997 initial conviction. While not mentioned in the decision, the ability to change an old conviction in the California state courts was likely the result of a statute, Cal. Penal Code § 1473.7  which did not come into force until January 1, 2017. Instead of a 21 year old wait, it appears more like Mr. Perez-Camacho got to work changing his conviction soon after state law changed so he could.

Be that as it may, Perez-Camacho makes clear motions to reopen are not only disfavored when a conviction is modified or a law changes, but essentially unavailable if not nearly immediately after removal proceedings ended (clearly unlike our Marine).

It should be noted that in addition to rules restricting motions to reopen, there is another rule giving an immigration judge or the Board of Immigration Appeals to reopen a case sua sponte, or, on its own initiative. This regulation has its own complicated story as the government sought to change it to restrict it to near irrelevancy, but the change has been stayed by a district court in the Northern District of California.  Assuming, the sua sponte rule emerges in force after all the litigation, will it serve as a firm basis to file motions to reopen notwithstanding the hard reality of Perez-Camacho? As an attorney, should you file a motion to reopen after a change in law or does the new calculus make you unambiguously and idiot. Posted January 29, 2023.


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