United States v. 2006-08-21 | 04-70774 | CARDOSO-TLASECA VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ROGELIO CARDOSO-TLASECA,
Petitioner, No. 04-70774
v.  Agency No.
ALBERTO R. GONZALES, Attorney A78-467-817
General,
Respondent. 
 ROGELIO CARDOSO-TLASECA,
Petitioner, No. 04-72264
v. Agency No.
 A78-467-817ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 16, 2006—San Francisco, California
Filed August 21, 2006
Before: Edward Leavy and Pamela Ann Rymer,
Circuit Judges, and Barry Ted Moskowitz,* District Judge.
Opinion by Judge Leavy
*The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
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COUNSEL
Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,
California, for the petitioner.
Carol Federighi and Neil McGill-Gorsuch, United States
Department of Justice, Washington, DC, for the respondent.
OPINION
LEAVY, Circuit Judge:
Rogelio Cardoso-Tlaseca (Cardoso), a native and citizen of
Mexico, petitions for review of the Board of Immigration
Appeals’ (BIA) January 30, 2004, order denying his motion
to reopen its September 30, 2003, order affirming an immi-
gration judge’s (IJ) removal order and denial of his applica-
tion for adjustment of status. (Appeal No. 04-70774). Cardoso
also petitions for review of the BIA’s order denying his
motion to reconsider its January 30, 2004, decision (Appeal
No. 04-72264). In his motions Cardoso asserted that the con-
viction that had formed the basis for his removal order had
been vacated. We grant the petition in 04-70774 and remand.
We deny the petition in 04-72264 as moot.
JURISDICTION
We have jurisdiction to review the petitions under 8 U.S.C.
§ 1252(a)(2)(D) as amended by § 106(a) of the REAL ID Act
of 2005, Pub. L. No. 109-13, Div. B., § 106(a)(1)(A)(iii), 119
Stat. 231, 310 (2005). See Notash v. Gonzales, 427 F.3d 693,
695-96 (9th Cir. 2005). While we have no jurisdiction to
review “any final order of removal against an alien who is
removable by reason of having committed a criminal
offense,” including a controlled substance offense, 8 U.S.C.
§§ 1252(a)(2)(C) and 1227(a)(2)(B), we are not barred from
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hearing the constitutional claims or questions of law raised in
Cardoso’s petition. 8 U.S.C. § 1252(a)(2)(D). Cardoso does
not present a constitutional claim, but argues that, as a matter
of law, the BIA erred when it determined that 8 C.F.R.
§ 1003.2(d) barred his motion to reopen and, alternatively,
that 8 C.F.R. § 1003.2(d) is invalid. Because his petitions for
review present questions of law, we have jurisdiction to con-
sider them.
FACTS AND PRIOR PROCEEDINGS
Cardoso entered the United States from Mexico without
inspection in April 1988. In February 1996, Cardoso married
Hilda Jimenez, at the time a lawful permanent resident, and
she filed an I-130 visa petition on his behalf. Jimenez became
a naturalized United States citizen on October 4, 1999, and
the I-130 visa petition was approved on January 25, 2001.
Cardoso filed an application to adjust his status to that of a
lawful permanent resident on March 8, 2001.
In the meantime, on August 30, 2000, Cardoso pled guilty
to cultivating marijuana for personal use in violation of Cal.
Health & Safety Code § 11358. The state court granted him
a deferred entry of judgment. On November 20, 2001, after
Cardoso had completed the deferred entry of judgment pro-
gram, he was allowed to withdraw his guilty plea to the culti-
vation charge and it was dismissed.
When Cardoso appeared for an interview on his application
to adjust status, he was arrested and detained by the Depart-
ment of Homeland Security (DHS). The DHS served him with
a Notice to Appear (NTA) alleging that he was subject to
removal on two grounds: (1) under 8 U.S.C. § 1182(a)(6)
(A)(i), as an alien present in the United States without being
admitted or paroled; and (2) under 8 U.S.C. § 1182(a)(2)(A)
(i)(II), as an alien who has been convicted of violating a law
or regulation relating to a controlled substance.
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At his removal hearings, Cardoso admitted the first ground
but denied the second, arguing that his conviction of cultivat-
ing marijuana for personal use was similar to a conviction for
simple possession. On that basis and because his conviction
had been dismissed, he argued that the government could not
use the conviction to establish his removability under
§ 1182(a)(2)(A)(i)(II).1 The IJ rejected this argument, sus-
tained the ground under § 1182(a)(2)(A)(i)(II), and found
Cardoso removable on the basis of both grounds. The IJ also
found that there was no relief from removal available to Car-
doso such as a waiver or adjustment of status despite his
approved I-130, because he was inadmissable as a result of
his controlled substance conviction under 8 U.S.C. § 1182(a)
(2)(A)(i)(II).
Cardoso timely appealed to the BIA. While the appeal was
pending, he moved the California state court to vacate his cul-
tivation conviction, arguing that the conviction was constitu-
tionally invalid. Cardoso argued that his guilty plea was not
knowing, intelligent, free or voluntary because (1) at the time
of the plea all parties, including Cardoso, were unaware of the
immigration consequences of his plea; and (2) the court failed
to inform Cardoso of the immigration consequences of his
plea or to take any of the required waivers until after the plea
was entered.
On September 30, 2003, the BIA summarily affirmed with-
out opinion the IJ’s order of removal, and Cardoso was
removed to Mexico on October 8, 2003.
On October 15, 2003, the California court granted Cardo-
so’s motion to vacate his cultivation conviction. The criminal
1An alien is not removable if his or her conviction is subject to a state
rehabilitative statute and the alien, if prosecuted in federal court, would
have qualified for treatment under the Federal First Offender Act (FFOA),
18 U.S.C. § 3607. Lujan-Armendariz v. INS, 222 F.3d 728, 749 (9th Cir.
2000).
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complaint was amended to charge Cardoso with simple pos-
session of marijuana in violation of Cal. Health & Safety
Code § 11357(c), and Cardoso pled guilty to the new charge.
On November 26, 2003, Cardoso was sentenced to a term of
probation. After Cardoso successfully completed probation,
the court expunged his possession conviction pursuant to Cal.
Penal Code § 1203.4 on December 17, 2003.
On December 29, 2003, Cardoso moved the BIA to reopen
proceedings, on the basis that his cultivation conviction under
Cal. Health & Safety Code § 11358 had been vacated. The
BIA denied the motion:
It is undisputed that the respondent was removed
from the United States on October 8, 2003, after the
Board rejected the respondent’s appeal. The respon-
dent’s removal was therefore lawfully executed.
Compare Wiedersperg v. INS, 896 F.2d 1179 (9th
Cir. 1990). Under the regulations at 8 C.F.R.
§ 1003.2(d), “[a] motion to reopen or a motion to
reconsider shall not be made by or on behalf of a
person who is the subject of exclusion, deportation,
or removal proceedings subsequent to his or her
departure from the United States.” The Board thus
lacks the jurisdiction to reopen and reconsider the
respondent’s appeal at this time, and the motion
must be denied. See 8 C.F.R. § 1003.1(d)(2)(H). We
note that on October 15, 2003, the Superior Court of
California in and for the Country [sic] of Tulare
granted the respondent’s motion to vacate a convic-
tion underlying one of the bases of the respondent’s
inadmissibility. The fact that the conviction was
vacated subsequent to the respondent’s removal, and
the fact that the conviction was vacated prior to the
filing of his motion, would not alter our conclusion.
Accordingly, the motion is denied.
Cardoso timely moved to reconsider the denial of the
motion to reopen, arguing that the BIA had misapplied this
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court’s decision in Wiedersperg. On March 18, 2004, the BIA
denied the motion to reconsider:
This case was before the Board last on January 30,
2004, when we denied the respondent’s motion to
reopen for lack of jurisdiction. We stated that it was
undisputed that the respondent had been removed
from the United States on October 8, 2003, after the
Board’s rejection of his appeal and that his removal
had been lawfully executed. We likewise lack juris-
diction over the present motion to reconsider, for the
same reasons. See 8 C.F.R. § 3.2(d) (2003) (now
renumbered as § 1003.2(d)). Even if we were to
address the merits of the current motion, we would
deny it because the respondent has not demonstrated
any error in our decision of January 30, 2004, on the
record then before us, upon consideration of the con-
tentions in this motion. See Matter of Cerna, 20 I&N
Dec. 399 (BIA 1991). We reiterate that the respon-
dent’s case is distinguishable from Wiedersperg v.
INS, 896 F. 2d 1179 (9th Cir. 1990) (allowing an
alien who had been deported to reopen proceedings
where the state convictions underlying the sole
ground of deportation against him had been vacated).
We note that this respondent was found removable
under both sections 212(a)(6)(A)(i) and 212(a)(2)
(A)(i) of the Immigration and Nationality Act, 8
U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(2)(A)(i).
Although there is no substantiation in the administrative
record, the parties agree that the BIA reissued its decision on
April 7, 2004.
Cardoso timely filed petitions for review of both the denial
of his motion to reopen (04-70774, filed February 6, 2004)
and the denial of his motion to reconsider (04-72264, filed
May 6, 2004). Cardoso’s motion to consolidate the petitions
was granted on August 9, 2004.
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STANDARDS OF REVIEW
We review for an abuse of discretion the BIA’s decision on
an applicant’s motion to reopen. See INS v. Doherty, 502 U.S.
314, 323-24 (1992). The BIA’s decision denying reconsidera-
tion is also reviewed for an abuse of discretion. See Salta v.
INS, 314 F.3d 1076, 1078 (9th Cir. 2002). Under the abuse of
discretion standard, the decision of the BIA “will be upheld
unless it is arbitrary, irrational, or contrary to law.” Singh v.
INS, 213 F.3d 1050, 1052 (9th Cir. 2000).
ANALYSIS
[1] 8 C.F.R. § 1003.2 states:
(d) Departure, deportation, or removal. A motion to
reopen or a motion to reconsider shall not be made
by or on behalf of a person who is the subject of
exclusion, deportation, or removal proceedings sub-
sequent to his or her departure from the United
States. Any departure from the United States, includ-
ing the deportation or removal of a person who is the
subject of exclusion, deportation, or removal pro-
ceedings, occurring after the filing of a motion to
reopen or a motion to reconsider, shall constitute a
withdrawal of such motion.
We have interpreted this regulation “to mean that a person
who leaves the U.S. after removal proceedings have already
been initiated is barred from filing a motion to reopen.” Singh
v. Gonzales, 412 F.3d 1117, 1121 (9th Cir. 2005) (italics
omitted); see also Azarte v. Ashcroft, 394 F.3d 1278, 1281-82
(9th Cir. 2005) (noting that an alien who departs after being
granted relief from removal in the form of voluntary departure
forfeits the right to a motion to reopen).
[2] Cardoso argues that the BIA nonetheless had jurisdic-
tion over his motion to reopen because his § 11358 cultivation
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conviction was vacated and was a “key part” of the govern-
ment’s case in his removal proceeding.2 In Estrada-Rosales v.
INS, this court held that a deportation based upon an invalid
conviction is not “legally executed” and that, therefore, the
defective deportation may be reopened after the petitioner has
left the country:
There is no doubt that the use of the invalid convic-
tion was a key part of the government’s case in the
deportation proceeding. The immigration judge’s
reliance upon the conviction is evidenced by the
judge’s statement that the conviction “materially
lessens the proof necessary” to establish deporta-
bility. Petitioner in these circumstances is entitled to
a new deportation hearing.
645 F.2d 819, 821 (9th Cir. 1981) (internal citations omitted).
[3] Following Estrada-Rosales, this court decided Wieder-
sperg, holding that the alien, who had been deported, was
entitled to reopen deportation proceedings because his state
conviction, which was the “sole ground” for his deportation,
was vacated:
We also pointed out [in Estrada-Rosales] that the
conviction was “a key part of the government’s case
in the deportation proceeding.” That conviction hav-
ing been overturned on the merits, “petitioner in
these circumstances is entitled to a new deportation
hearing.” Here, Wiedersperg’s conviction was the
2Cardoso also argues that § 1003.2(d) is an invalid regulation because
it is inconsistent with the amendments made by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-132, 110 Stat. 1214, to the Immigration and Nationality Act (INA).
Because we hold that the BIA made a legal error when it determined that
the regulation barred Cardoso’s motion to reopen and we remand for a
second determination whether the regulation applies, we do not decide the
issue of the regulation’s validity.
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sole ground of his deportation, and that conviction is
itself erased and cannot serve to establish that he has
committed a crime. He stands neither convicted nor
charged with the crime for which he was deported.
Estrada-Rosales applies.
896 F.2d at 1182 (citations and alterations omitted).
[4] In denying Cardoso’s motions to reopen and reconsider,
the BIA purported to limit our holding in Wiedersperg to
cases in which the vacated state court conviction is “the sole
ground of deportability.” (Emphasis added). This was error.
Both Wiedersperg and Estrada-Rosales apply where the con-
viction was a “key part” of the deportation proceeding.
[5] Cardoso’s § 11358 cultivation conviction was a key part
of his removal proceeding. His conviction not only made him
removable under 8 U.S.C. § 1182(a)(6)(A)(i), it also made
him inadmissable under 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Because Cardoso was inadmissable as a result of his convic-
tion, the IJ found him ineligible for two forms of relief from
removal, adjustment of status pursuant to 8 U.S.C. § 1255 and
cancellation of removal under 8 U.S.C. § 1229b(b). Cardoso
had an approved I-130 petition. Thus, his § 11358 cultivation
conviction was a “key part” of the government’s case.
[6] The government also argues that, even if the conviction
was vacated, it was not vacated on the merits but because of
its immigration consequences. According to the BIA, a
vacated conviction remains valid for immigration purposes if
the conviction was vacated for reasons, “unrelated to the mer-
its of the underlying criminal proceedings,” that is, for equita-
ble, “rehabilitation or immigration hardship[ ]” reasons.
Matter of Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003)
(Pickering I), reversed by Pickering v. Gonzales, ___ F.3d
___, 2006 WL 1976043 (6th Cir. July 17, 2006) (Pickering
II). However, the BIA acknowledges that a conviction vacated
because of a “procedural or substantive defect” is not consid-
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ered a “conviction” for immigration purposes and cannot
serve as the basis for removeability. Pickering I, 23 I. & N.
Dec. at 624.3 The issue whether Cardoso’s § 11358 cultivation
conviction was vacated on the merits must be determined in
the first instance by the BIA on remand.
The government argues that the removal order should none-
theless not be reopened because Cardoso’s possession convic-
tion for violation of Cal. Health & Safety Code § 11357(c)
was not expunged until after he was removed. The possession
conviction cannot sustain the removal order because it was
not alleged in the NTA. The DHS must serve an alien in
removal proceedings with a NTA which contains “the nature
of the proceedings against the alien,” the “legal authority
under which the proceedings are conducted,” the “acts or con-
duct alleged to be in violation of the law,” and the “charges
against the alien and the statutory provisions alleged to have
been violated.” 8 U.S.C. § 1229(a)(1); see also 8 C.F.R.
§ 1003.15(b) & (c). Not only was the possession conviction
not alleged in the NTA, Cardoso was not convicted of violat-
ing Cal. Health & Safety Code § 11357(c) until October 15,
2003, a week after he was removed to Mexico.
CONCLUSION
The petition in 04-70774 is granted and the motion
remanded to the BIA for a determination whether Cardoso’s
original conviction was vacated on the merits or because of
immigration consequences. The petition in 04-72264 is denied
as moot.
3In reviewing the BIA’s rule the Sixth Circuit recently clarified that for
the government to carry its burden in establishing that a conviction
remains valid for immigration purposes, the government must prove “with
clear, unequivocal and convincing evidence, that the Petitioner’s convic-
tion was quashed solely for rehabilitative reasons or reasons related to his
immigration status, i.e., to avoid adverse immigration consequences.”
Pickering II, 2006 WL at *4 (emphasis added).
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PETITION IN 04-70774 GRANTED; REMANDED.
PETITION IN 04-72264 DENIED.
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