Jose Madrigal-Zavala v. ERIC H. HOLDER Jr., Attorney General

This disposition isn’t appropriate for publication and isn’t precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Edward R. Korman, Senior District Judge for the U.S.**
District Court for the Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MADRIGAL-ZAVALA,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney
General,
Respondent.
No. 10-72332
Agency No. A072-978-455
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 6, 2012
San Francisco, California
Before: KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and
KORMAN, Senior District Judge.**
We’ve held the departure bar doesn’t apply when an alien’s vacated
conviction makes up a “key part” of his deportation proceedings. See Cardoso-
FILED
DEC 18 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Tlaseca v. Gonzales, 460 F.3d 1102, 1107 (9th Cir. 2006); Wiedersperg v. INS,
896 F.2d 1179, 1181–82 (9th Cir. 1990); Estrada-Rosales v. INS, 645 F.2d 819,
820–21 (9th Cir. 1981). We’ve reasoned that a deportation based on a
subsequently vacated conviction is not “legally executed,” see Estrada-Rosales,
645 F.2d at 821, provided that the conviction was vacated “because of a procedural
or substantive defect,” rather than for a reason “unrelated to the merits of the
underlying criminal proceedings,” Cardoso-Tlaseca, 460 F.3d at 1107 (internal
quotation marks omitted).
Petitioner argued before the IJ and the BIA that the departure bar doesn’t
apply to his case because his conviction was vacated. The BIA held that
petitioner’s claim that his “previous deportation was ‘unlawful’ is based on case
law which postdates his deportation by many years, as well as on an apparent
modification of his criminal conviction which also postdates his deportation by
many years.” For those reasons, the BIA held, petitioner “makes no legitimate
argument that he was unlawfully deported.”
Contrary to the BIA’s assertion, petitioner relies on two cases that predate
his deportation—Wiedersperg and Estrada-Rosales. And Cardoso-Tlaseca, the
case that postdates his deportation, relied on Wiedersperg and Estrada-Rosales.
See Cardoso-Tlaseca, 460 F.3d at 1107. Nor does the fact that petitioner attempted

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to vacate his conviction years after his deportation derail his claim. In
Wiedersperg, petitioner “wait[ed] three years and eight months after the final order
of deportation to file a collateral challenge to his state court conviction, and . . .
over seven years after the granting of his writ of error coram nobis to file his
motion to reopen the deportation case.” 896 F.2d at 1181. Despite the delay, we
held the departure bar didn’t eliminate the BIA’s jurisdiction over his motion. Id.
at 1183.
Petitioner’s case closely tracks Cardoso-Tlaseca. In both cases, the aliens
were deported for being illegally present in the country and having been convicted
of controlled substance violations. Cardoso-Tlaseca, 460 F.3d at 1104. Both
aliens convinced courts to vacate their convictions, and both subsequently entered
guilty pleas to different charges. Id. Both cases raised the question whether the
departure bar denied jurisdiction over their motions to reopen. Id. at 1105. In
Cardoso-Tlaseca, we remanded so that the BIA could “determine[] in the first
instance” whether the petitioner’s conviction “was vacated on the merits” and thus
could not serve as a basis for removeability. Id. at 1107. Cardoso-Tlaseca requires
us to do the same here.

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We hold that the BIA has jurisdiction and remand for the BIA to determine
whether petitioner’s conviction was vacated on the merits.
PETITION GRANTED.

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