Reyes-Torres v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RUBEN REYES-TORRES, 
Petitioner,
No. 08-74452
v.
 Agency No.
ERIC H. HOLDER Jr., Attorney A013-476-480
General,
Respondent.


RUBEN REYES-TORRES, 
Petitioner, No. 09-70214
v.
 Agency No.
A013-476-480
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
September 15, 2010—San Francisco, California

Filed April 7, 2011

4701
4702 REYES-TORRES v. HOLDER
Before: J. Clifford Wallace and Sidney R. Thomas,
Circuit Judges, and Richard Mills, Senior District Judge.*

Opinion by Judge Thomas;
Dissent by Judge Wallace

*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
4704 REYES-TORRES v. HOLDER

COUNSEL

Karla Kraus, San Diego, California, for the petitioner.

Daniel I. Smulow, Office of Immigration Litigation, Wash-
ington, D.C., for the respondent.

Trina Realmuto, Boston, Massachusetts, for amicus curiae
National Immigration Project of the National Lawyers Guild.

Beth Werlin, Washington, D.C., for amicus curiae American
Immigration Council.

OPINION

THOMAS, Circuit Judge:

In this petition for review, we consider whether the Board
of Immigration Appeals (“BIA”) has jurisdiction to review a
motion to reconsider and reopen filed after a petitioner has
been involuntarily removed from the United States. We con-
 REYES-TORRES v. HOLDER 4705
clude that it has jurisdiction and we grant the petition for
review.

I

Reyes-Torres is a native and citizen of Mexico who
obtained lawful permanent resident status in 1964. Since then
he has been convicted of two crimes relevant to this petition.
In 1984, Reyes-Torres was convicted of transporting aliens in
violation of 8 U.S.C. § 1324(a)(2). In 2007, he was convicted
of possession of a controlled substance in violation of Califor-
nia Health and Safety Code § 11377(a).

The Department of Homeland Security (“DHS”) served
Reyes-Torres with a Notice to Appear (“NTA”) in 2008,
charging him with being removable pursuant to: (1) 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an alien who has been convicted of an
aggravated felony; and (2) 8 U.S.C. § 1227(a)(2)(B)(i) as an
alien who has been convicted of a law relating to a controlled
substance. At a hearing before an immigration judge (“IJ”),
Reyes-Torres admitted the factual allegations in the NTA,
contested removability on the basis of the aggravated felony
charge, and conceded removability on the basis of his con-
trolled substance violation. He also stated his intention to seek
relief from deportation in the form of cancellation of removal.
Such relief is unavailable to permanent residents who have
been convicted of any aggravated felony. 8 U.S.C.
§ 1229b(a)(3).

The IJ issued a written decision finding that Reyes-Torres’s
alien transportation conviction constituted an aggravated fel-
ony and he was therefore ineligible for relief in the form of
cancellation of removal. In light of this finding, and in light
of Reyes-Torres’s concession of removability on the con-
trolled substance conviction, the IJ ordered him removed to
Mexico. Reyes-Torres appealed to the BIA and it affirmed the
IJ’s decision on September 26, 2008.
4706 REYES-TORRES v. HOLDER
Reyes-Torres was removed from the United States on Octo-
ber 3, 2008. On October 22, 2008, a California Superior Court
judge granted Reyes-Torres’s motion to withdraw his guilty
plea to the controlled substance charge resulting in his 2007
controlled substance conviction. The judge granted the motion
on the ground that Reyes-Torres was not adequately informed
of the immigration consequences of the plea. On October 27,
2008, Reyes-Torres filed with the BIA a motion to reconsider
and reopen proceedings based on the new evidence of the
vacated conviction.

On December 22, 2008, the BIA dismissed Reyes-Torres’s
motion to reopen and reconsider, concluding that it lacked
jurisdiction because Reyes-Torres had been removed from the
United States prior to its filing. The BIA cited the “departure
bar” in 8 C.F.R. § 1003.2(d) for this proposition. Reyes-
Torres timely petitioned for review of both the BIA’s Septem-
ber 26, 2008 decision dismissing his appeal (Case No. 08-
74452) and the BIA’s December 22, 2008 decision dismissing
his motion to reconsider and reopen (Case No. 09-70214).
The court sua sponte consolidated the petitions.

II

[1] The regulatory “departure bar” at issue in this case
reads:

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 pro-
ceedings subsequent to his or her departure from the
United States.

8 C.F.R. § 1003.2(d). The BIA argues that its interpretation of
the departure bar strips it of jurisdiction to hear motions to
reopen or reconsider filed by aliens who have already been
removed from the United States.
 REYES-TORRES v. HOLDER 4707
[2] We recently examined the departure bar in Coyt v.
Holder, 593 F.3d 902 (9th Cir. 2010). Coyt entered the United
States without inspection and, twenty years later, the Immi-
gration and Naturalization Service initiated removal proceed-
ings against him. Id. at 903. Coyt conceded removability but
applied for cancellation of removal or voluntary departure. Id.
The IJ granted a sixty-day voluntary departure period. Id. at
904. The BIA affirmed the IJ’s decision, granting Coyt an
additional thirty days to depart voluntarily. Id. at 904. Due to
a miscommunication with his attorney, Coyt did not receive
notice of the BIA’s decision, and did not depart within the
requisite thirty days. Id. When Coyt eventually learned of the
BIA’s decision, he moved for the BIA to reissue its decision
so that the thirty-day voluntary departure period would restart,
arguing ineffective assistance of counsel. Id. On the same day,
Coyt was removed. Id.

The BIA issued an order finding Coyt’s removal resulted in
the withdrawal of his motion to reissue, citing 8 C.F.R.
§ 1003.2(d). Id. That section reads in full:

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 pro-
ceedings subsequent to his or her departure from the
United States. Any departure from the United States,
including the deportation or removal of a person who
is the subject of exclusion, deportation, or removal
proceedings, occurring after the filing of a motion to
reopen or a motion to reconsider, shall constitute a
withdrawal of such motion.

8 C.F.R. § 1003.2(d).

[3] Coyt petitioned this court for review and we granted
his petition. Id. at 903. We explained that the first step in ana-
lyzing a regulation under Chevron requires us to determine
“whether Congress has directly spoken to the precise question
4708 REYES-TORRES v. HOLDER
at issue.” Id. at 905 (quoting Chevron U.S.A. v. Nat’l Res.
Def. Council, 467 U.S. 837, 842 (1984)). We then analyzed
Congress’s amendments to the Immigration and Nationality
Act, which granted aliens subject to a removal order the right
to file a motion to reopen. Id. at 906 (citing 8 U.S.C.
§ 1229a(c)(7)(A)). These amendments, collectively known as
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), provide that within ninety days, the
alien may file a motion to reopen, and the Attorney General
must remove the alien. 8 U.S.C. §§ 1229a(c)(7)(C); 1231(a)
(1)(A); see also id. § 1229a(c)(6)(B) (granting aliens thirty
days to file a motion to reconsider).

[4] After reviewing the statutes, we determined that “the
intent of Congress is clear,” and that “in passing IIRIRA,
Congress anticipated that petitioners would be able to pursue
relief after departing from the United States.” Coyt, 593 F.3d
at 906. As such, we held that:

The only manner in which we can harmonize the
provisions simultaneously affording the petitioner a
ninety day right to file a motion to reopen and
requiring the alien’s removal within ninety days is to
hold, consistent with the other provisions of IIRIRA,
that the physical removal of a petitioner by the
United States does not preclude the petitioner from
pursuing a motion to reopen.

Id. at 907.

[5] There is no principled legal distinction to be drawn
between Coyt and this case. The only factual difference
between the cases is that Coyt filed his motion to reopen prior
to his involuntary departure. Reyes-Torres did not file his
motion to reopen and reconsider until after he was removed.
This distinction is immaterial in light of Congress’s clear
intent in passing IIRIRA. Reyes-Torres was forcibly removed
seven days after the final order of removal was entered. If we
 REYES-TORRES v. HOLDER 4709
accept the government’s argument, the Attorney General
would have the power to unilaterally reduce the time in which
Reyes-Torres could have filed his motion to reopen from the
statutorily mandated ninety days to seven days. Because such
a result would “completely eviscerate the statutory right to
reopen provided by Congress,” we reaffirm our holding in
Coyt that “the physical removal of a petitioner by the United
States does not preclude the petitioner from pursuing a motion
to reopen.” Id.

III

[6] Reyes-Torres also appeals the BIA’s September 26,
2008 decision affirming the IJ’s conclusion that his alien
transportation conviction constituted an aggravated felony.
We do not find it necessary to decide whether the 1984 con-
viction constituted an aggravated felony for removal purposes
in light of our holding in Ledezma-Galicia v. Holder, ___
F.3d ___, Nos. 03-73648, 04-35048, 2010 WL 5174979 (9th
Cir. Dec. 22, 2010). In Ledezma-Galicia, we held that 8
U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions that
occurred prior to the enactment of the Anti-Drug Abuse Act
of 1988 (“ADAA”). Id. at *16. The ADAA—which created
the category of crimes denominated “aggravated felonies” and
provided that aliens convicted of such aggravated felonies
were subject to deportation—was enacted November 18,
1988. Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,
102 Stat. 4181. Because Reyes-Torres’s conviction for alien
transportation occurred prior to November 18, 1988, it cannot
constitute a removable aggravated felony.

[7] The fact that Reyes-Torres was deemed removable
under 8 U.S.C. § 1227(a)(2)(B)(i) due to his 2007 controlled
substance conviction does not alter the analysis. The 2007
guilty plea has since been vacated and can no longer serve as
a basis for removability.1 See Cardoso-Tlaseca v. Gonzales,
1
The dissent places great weight on the fact that Reyes-Torres initially
conceded removability by admitting the allegations in the Notice to
4710 REYES-TORRES v. HOLDER
460 F.3d 1102, 1107 (9th Cir. 2006) (“[A] conviction vacated
because of a procedural or substantive defect is not consid-
ered a conviction for immigration purposes and cannot serve
as the basis for removeability.” (internal quotation marks and
citation omitted)); Wiedersperg v. INS, 896 F.2d 1179, 1182
(9th Cir. 1990) (“This and other courts have clearly estab-
lished that the nullification of a conviction upon which
deportability is premised deprives deportation of a legal
basis.” ). The fact that Reyes-Torres sought to vacate his 2007
controlled substance conviction in light of the immigration
consequences does not change the reasoning because the peti-
tioner’s motive is not the crucial inquiry. See Pickering v.
Gonzales, 465 F.3d 263, 267 (6th Cir. 2006). Instead, the
inquiry must focus on the state court’s rationale for vacating
the conviction, and the burden is on the government to prove
that it was vacated “solely for rehabilitative reasons or reasons
related to his immigration status . . . .” Cardoso-Tlaseca v.
Gonzales, 460 F.3d at 1107 n.3 (citing Pickering v. Gonzales,
454 F.3d 525 (6th Cir. 2006), amended and superseded by
Pickering, 465 F.3d at 263); see also Pickering, 465 F.3d at
266-67 (explaining the difference between a conviction
vacated for rehabilitative or immigration reasons and a con-
viction vacated for procedural or substantive infirmities). This
question is not before us because it is one that “must be deter-
mined in the first instance by the BIA on remand.” Cardoso-
Tlaseca, 460 F.3d at 1107. Until the BIA determines that the
conviction was not vacated on the merits, Reyes-Torres was
not properly found removable under the INA on a ground sep-
arate and distinct from a pre-1988 aggravated felony convic-
tion, unlike the petitioner in Becker v. Gonzales, 473 F.3d

Appear. However, Reyes-Torres merely conceded that he had been con-
victed in state court; he never conceded the factual allegations underlying
that conviction. Because that conviction has since been vacated, his con-
cession is no longer accurate. This distinguishes the instant case from Shin
v. Mukasey, 547 F.3d 1019, 1024 (9th Cir. 2008), wherein the petitioner
conceded removability on the ground she was not in possession of valid
documents for admission and she never recanted that factual concession.
 REYES-TORRES v. HOLDER 4711
1000 (9th Cir. 2007). Therefore, because the 2007 controlled
substance conviction has been vacated, the 1984 aggravated
felony conviction is the only remaining basis for removabil-
ity, and Ledezma-Galicia controls the determination.

We grant the petition for review and remand this case to the
BIA for further action consistent with this opinion.

PETITION GRANTED.

WALLACE, Senior Circuit Judge, dissenting:

The majority’s decision fails to follow the well-established
principles of agency deference and misreads our recent prece-
dent for determining whether an aggravated felon is eligible
for cancellation of removal. Therefore, I dissent.

I.

In October 2008, Ruben Reyes-Torres, who had become a
lawful permanent resident, was removed from the United
States based on his state conviction for unlawfully possessing
a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i)
(2008). During his removal proceedings, Reyes-Torres con-
ceded removability on the basis of his controlled substance
conviction, but requested cancellation of removal pursuant to
8 U.S.C. § 1229b(a). This request was denied, however,
because Reyes-Torres had also been convicted of an aggra-
vated felony — smuggling aliens — in 1984.

Shortly after his removal to Mexico, Reyes-Torres filed a
motion to reopen and reconsider his removal proceedings with
the Board of Immigration Appeals (Board). According to
Reyes-Torres, he was entitled to relief because he had
recently withdrawn his guilty plea on the controlled substance
charge. The Board, however, denied the motion because
4712 REYES-TORRES v. HOLDER
Reyes-Torres had departed the United States prior to filing the
motion. See 8 C.F.R. § 1003.2(d).

Reyes-Torres raises two issues for our review. He first
challenges the Board’s refusal to reopen and reconsider his
removal proceedings. Reyes-Torres also contends that the
immigration courts erred when they held that his 1984 convic-
tion for alien smuggling constitutes an aggravated felony. I
would deny Reyes-Torres’s petition for review on both issues.

II.

Reyes-Torres’s motion to reopen and reconsider his
removal proceedings was denied based on the Board’s depar-
ture bar, which is set forth at 8 C.F.R. § 1003.2(d). That sec-
tion, enacted by the United States Attorney General, provides:

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 pro-
ceedings subsequent to his or her departure from the
United States. Any departure from the United States,
including the deportation or removal of a person who
is the subject of exclusion, deportation, or removal
proceedings, occurring after the filing of a motion to
reopen or a motion to reconsider, shall constitute a
withdrawal of such motion.

Id. Relying on Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010),
the majority concludes that the departure regulation cannot
stand in this case because Reyes-Torres was involuntarily
deported. In my view, the majority should have given appro-
priate deference to the Board’s reasonable interpretation of its
own regulation. See Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842-43 (1984) (requiring defer-
ence to an agency’s interpretation of an ambiguous statutory
or regulatory provision unless the agency’s interpretation is
unreasonable).
 REYES-TORRES v. HOLDER 4713
The Board has explained that it lacks the power to provide
administrative relief to an alien who has departed the territory
of the United States. In re Armendarez-Mendez, 24 I. & N.
Dec. 646 (BIA 2008). Since the early 1950s, the Board has
consistently maintained this position and regularly applied
this bar to departed aliens. See In re G----y B----, 6 I. & N.
Dec. 159 (BIA 1954). The Board defines section 1003.2(d) as
jurisdictional. Armendarez-Mendez, 24 I. & N. Dec. at 652.
Thus, the Board explains that this regulatory bar limits its
adjudicative authority and capacity to consider claims of
departed aliens, even when — as is the case here — the
alien’s departure is involuntary. See id.

The Board’s interpretation of its departure rule as a juris-
dictional bar is not unreasonable or implausible. See Chevron,
467 U.S. at 842-43. While it may seem “linguistically awk-
ward to consider the forcible removal of an alien as ‘consti-
tut[ing] a withdrawal’ of any pending motions filed by the
alien,” the issue is not whether the Board’s interpretation of
its own regulation is somewhat awkward. Zhang v. Holder,
617 F.3d 650, 660 (2d Cir. 2010) (alteration in original).
Instead, we must consider whether the agency’s interpretation
is “plainly erroneous or inconsistent with the regulation.”
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551
U.S. 644, 672 (2007) (internal quotation marks omitted).
Here, the plain language of section 1003.2(d) does not pre-
clude the Board’s interpretation, and Reyes-Torres points to
nothing in the Immigration and Nationality Act (INA) that
prohibits the Board from treating its departure bar as a juris-
dictional rule. Accordingly, under Chevron, we should defer
to the Board’s interpretation of its own departure provision.
See 467 U.S. at 842-43; Auer v. Robbins, 519 U.S. 452, 461
(1997) (explaining that the judiciary should defer to an agen-
cy’s plausible reading of its own regulations).

I recognize that Congress has enacted legislation allowing
aliens the right to file at least one motion to reopen with the
Board. See 8 U.S.C. § 1229a(c)(7)(A). I also appreciate the
4714 REYES-TORRES v. HOLDER
general rule that an administrative agency cannot contract a
statutory grant of jurisdiction. See Union Pac. R.R. v. Bhd. of
Locomotive Eng’rs, 130 S. Ct. 584, 597-98 (2009). The gen-
eral rule holds true, however, only to the extent that Congress
has not given the agency authority to adopt rules of jurisdic-
tional dimension. See id. (emphasizing that the controlling
statute did not allow the agency to limit the scope of its own
jurisdiction). This case therefore is unlike the agency regula-
tion at issue in Union Pacific. Here, Congress has expressly
delegated very broad rule-making authority to the Attorney
General to establish regulations as necessary to enforce our
nation’s immigration laws. See 8 U.S.C. § 1103(g)(2) (autho-
rizing the Attorney General to “establish such regulations, . . .
review such administrative determinations in immigration
proceedings, delegate such authority, and perform such acts as
the Attorney General determines to be necessary” under the
INA). Based on this authority, the Attorney General has seen
fit to establish the departure bar and limit the Board’s power
to reopen removal proceedings when an alien leaves the
United States. 8 C.F.R. § 1003.2(d).

Significantly, Congress’s silence on the propriety of the
removal bar, despite repeated amendments to the INA, dem-
onstrates legislative acquiescence to the Attorney General’s
authority to enact a departure regulation. Zhang, 617 F.3d at
662, citing Immigration Act of 1990, Pub. L. No. 101-649
§ 545(d)(1) (Nov. 29, 1990). Because Congress has acqui-
esced to the Attorney General’s authority to limit an alien’s
right to file a motion to reopen, and given that the Board’s
interpretation of that limitation is reasonable, we should defer
to the Board.

It is true that our sister circuits have split over the validity
of the departure bar. The Sixth and Seventh Circuits, for
instance, have invalidated section 1003.2(d), concluding that
the Attorney General lacks authority to limit the Board’s
jurisdiction over motions to reopen. Pruidze v. Holder, 632
F.3d 234, 237 (6th Cir. 2011); Marin-Rodriguez v. Holder,
 REYES-TORRES v. HOLDER 4715
612 F.3d 591, 595 (7th Cir. 2010). Meanwhile, the Fifth and
Tenth Circuits have issued decisions upholding the departure
bar. See Contreras-Bocanegra v. Holder, 629 F.3d 1170,
1170 (10th Cir. 2010) (treating the departure bar “as a com-
plete jurisdictional bar against motions to reopen”); Navarro-
Miranda v. Ashcroft, 330 F.3d 672, 675-76 (5th Cir. 2003)
(denying a petition for review based on section 1003.2(d)).
Because the Fifth and Tenth Circuits’ decisions are faithful to
the deference required by Chevron, I would follow those
cases and uphold the departure bar here.

III.

Nor do I agree with the majority’s interpretation of our
recent decision in Ledezma-Galicia v. Holder, ___ F.3d ___,
2010 WL 5174979, at *12-13 (9th Cir. Dec. 22, 2010). There,
a divided panel of this court held that the INA precludes an
aggravated felony conviction, if obtained prior to November
18, 1988, from serving as grounds for removal under 8 U.S.C.
§ 1227(a)(2)(A)(iii). Id. at *16. Because Reyes-Torres’s alien
smuggling conviction was obtained in 1984, the majority rea-
sons that Reyes-Torres is not eligible for cancellation of
removal in this case. I disagree.

A close reading of Ledezma-Galicia indicates that its hold-
ing is irrelevant to the issue of cancellation of removal. As the
majority explained in that case, its reasoning applies to “the
aggravated felony ground of deportation only.” Id. at *9. This
is so, because the temporal limitation on which Ledezma-
Galicia relies, section 7344(b) of the Anti-Drug Abuse Act of
1988, is restricted on its face to the narrow question of
whether certain aggravated felonies are “grounds for deporta-
tion.” See Pub. L. No. 100-690 § 7344(b) (Nov. 18, 1988).
Thus, other immigration consequences of an aggravated fel-
ony conviction, such as ineligibility for cancellation of
removal, do not share the same temporal limitation. See
Ledezma-Galicia, 2010 WL 5174979, at *15; Lopez-
Castellanos v. Gonzales, 437 F.3d 848, 852-54 (9th Cir. 2006)
4716 REYES-TORRES v. HOLDER
(explaining that the definition of “aggravated felony” applies
to all aliens but that the temporal reach of associated immigra-
tion consequences must be analyzed separately).

Significantly, we have already addressed the “immigration
consequences” at issue here: whether an alien’s pre-1988
aggravated felony conviction renders him ineligible for can-
cellation of removal. See id. In Becker v. Gonzales, 473 F.3d
1000 (9th Cir. 2007), we explicitly held that “[a]n alien con-
victed of any aggravated felony at any time is not eligible for
cancellation of removal.” Id. at 1002 (emphases added). Thus,
Becker definitively provides that when an alien is properly
found removable under the INA on a ground separate and dis-
tinct from a pre-1988 aggravated felony conviction, that con-
viction can still render the alien ineligible for cancellation of
removal. Id.

In light of Becker, it makes no difference that Ledezma-
Galicia precludes the immigration tribunals from considering
Reyes-Torres’s 1984 aggravated felony conviction as a basis
for removal. On this point, the majority erroneously con-
cludes, without citing anything in the record, that Reyes-
Torres was removed as a result of his 1984 aggravated felony
conviction. The administrative record, however, reveals that
this is not the case. Instead, the immigration tribunals relied
upon Reyes-Torres’s aggravated felony conviction only as
precluding his request for cancellation of removal.

To be sure, Reyes-Torres was initially charged with being
removable based on both his controlled substance conviction
and his aggravated felony conviction. During his removal pro-
ceedings, however, Reyes-Torres conceded removability on
the basis of his controlled substance conviction. Based on this
concession, the Board and the immigration judge explicitly
recognized that they did not need to decide whether Reyes-
Torres was removable as a result of his 1984 conviction for
smuggling aliens. See Administrative Record at 25-28 (find-
ing Reyes-Torres removable based on his admissions to the
 REYES-TORRES v. HOLDER 4717
immigration judge — i.e., his concession of removability as
a result of his controlled substance conviction); id. at 72-73
(“As the respondent has conceded removability, the only issue
before the Court is whether the respondent is statutorily
barred from relief in the form of cancellation of removal”).
Thus, rather than use his aggravated felony conviction as
grounds for removal, the immigration tribunals simply
accepted Reyes-Torres’s concession of removability on the
controlled substance ground. See Shin v. Mukasey, 547 F.3d
1019, 1024 (9th Cir. 2008) (holding that where a non-citizen
concedes removability, “the government’s burden in this
regard is satisfied”). Then, consistent with Becker, the immi-
gration judge and the Board simply determined that Reyes-
Torres’s prior aggravated felony conviction for smuggling
aliens made him ineligible for cancellation of removal. See
473 F.3d at 1002. The immigration tribunals therefore did not
violate Ledezma-Galicia when they denied Reyes-Torres’s
request for relief.

Relying on Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102,
1107 (9th Cir. 2006), the majority incorrectly asserts that
Reyes-Torres could not have been removed as a result of his
concessions because, after Reyes-Torres’s removal proceed-
ings became final, he successfully withdrew his guilty plea on
the controlled substance conviction. But, in considering
whether the Board erred in issuing its final order of removal,
we are restricted to the facts presented to the immigration tri-
bunals during Reyes-Torres’s removal proceedings. See
Fisher v. I.N.S., 79 F.3d 955, 963 (9th Cir. 1996) (explaining
that judicial review of agency action must be confined to the
original record upon which that action was premised); 8
U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide
the petition only on the administrative record on which the
order of removal is based” (emphasis added)). At the time of
Reyes-Torres’s removal proceedings, his controlled substance
conviction was a completely valid basis for removal. Thus,
because our review is confined to the original record on
which Reyes-Torres’s final order of removal is based, we are
4718 REYES-TORRES v. HOLDER
precluded from concluding that the Board erred by relying on
that conviction. See Fisher, 79 F.3d at 963. To the extent that
Reyes-Torres’s controlled substance conviction was later
vacated, we can consider this evidence only as it relates to
Reyes-Torres’s challenge to the Board’s decision denying his
motion to reopen. See id. This distinction is key.

In fact, recognizing that our review of an alien’s removal
proceedings is limited to the evidence introduced during those
proceedings, Reyes Torres does not challenge the Board’s
final removal order on the basis that his controlled substance
conviction was ultimately vacated. Instead, he invokes
Cardoso-Tlaseca for the proposition that the Board erred
when it denied his motion to reopen the underlying removal
proceedings. Yet, as the majority fails to acknowledge,
Reyes-Torres never asserted any argument premised on
Cardoso-Tlaseca when this case was pending before the
Board. Because Reyes-Torres did not exhaust this legal the-
ory, either during his removal proceedings or as part of his
motion to reopen, we lack jurisdiction to consider the argu-
ment upon which the majority bases its holding. See Barron
v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (explaining that
an alien’s failure to raise an issue to the Board generally con-
stitutes a failure to exhaust, which deprives this court of juris-
diction to consider the issue).

Moreover, even if our review of Reyes-Torres’s removal
order permitted us to consider the substantive impact of the
withdrawal of his controlled substance conviction, I would
still deny the petition for review. As discussed earlier, Reyes-
Torres explicitly conceded removability, which is in itself a
separate and distinct basis for finding him removable. See
Shin, 547 F.3d at 1024; 8 C.F.R. § 1240.10(c) (“If [an alien]
admits . . . his or her removability . . . and the immigration
judge is satisfied that no issues of law or fact remain, the
immigration judge may determine that removability as
charged has been established by the admissions of the
[alien]”). An alien’s voluntary concession of removability
 REYES-TORRES v. HOLDER 4719
does not become invalid simply because the alien recants his
concession after the Board enters its removal order. See id.
Reyes-Torres conceded to removability as part of a strategic
decision to pursue cancellation of removal. The fact that he
was denied relief on the basis of his aggravated felony convic-
tion does not somehow undo Reyes-Torres’s original conces-
sion to removability on a separate and distinct ground.1

Even Cardoso-Tlaseca, the primary authority on which the
majority relies, recognizes that the substantive ramifications
of a prior conviction are not altered when that conviction is
merely vacated to avoid adverse immigration consequences.
See 460 F.3d at 1107 n.3 (observing that when a petitioner’s
conviction is vacated for immigration purposes, that convic-
tion can still serve as the basis for finding the alien remov-
able). Here, the record provides that Reyes-Torres’s prior
conviction was vacated because he was upset with the immi-
gration consequences that resulted from his guilty plea. Yet,
the majority not only relies on facts that were not raised dur-
ing Reyes-Torres’s removal proceedings, it definitively con-
cludes that Reyes-Torres’s controlled substance conviction —
which was not vacated until after his removal proceedings
became final — could not possibly have been the basis for the
1
The majority refuses to give any weight to Reyes-Torres’s concession
of removability. The majority reasons that while Reyes-Torres admitted to
a controlled substance conviction, “he never conceded the factual allega-
tions underlying that conviction.” The majority does not explain why this
should make any difference. Under section 240.10(c), Reyes-Torres was
not required to admit to the underlying factual allegations for his conces-
sion of removability to be binding. Shin, 547 F.3d at 1024; see also
Fernandez-Rivas v. Holder, No. 08-71087, 2010 WL 4269337, at *1 (9th
Cir. Oct. 25, 2010) (“Fernandez-Rivas is bound by his attorney’s conces-
sion of removability before the IJ”). As the Second Circuit has explained,
“Admissions by parties are not subject to judicial scrutiny to ensure that
the admissions are fully supported by the underlying record.” See Hoodo
v. Holder, 558 F.3d 184, 191 (2d Cir. 2009). Regardless, Reyes-Torres did
not just admit to the conviction, he also specifically conceded to being a
removable alien. This is all that is required by Shin.
4720 REYES-TORRES v. HOLDER
Board’s removal order. This is a proposition that I cannot
accept.2

In sum, the majority impermissibly bases its decision on
facts that were never introduced during Reyes-Torres’s
removal proceedings. The majority then ignores our exhaus-
tion doctrine and disregards Reyes-Torres’s concession of
removability. Finally, even though the immigration tribunals
explicitly refused to treat Reyes-Torres as removable based on
his aggravated felony conviction, the majority rewrites the
Board’s final order of removal in an effort to invoke
Ledezma-Galicia — a decision that has no applicability
where, as here, an alien is removed for reasons that are sepa-
rate and distinct from the aggravated felony. Accordingly,
while Becker compels the conclusion that Reyes-Torres’s
1984 aggravated felony conviction renders him ineligible for
cancellation of removal, the majority refuses to follow our
precedent, charting its own course. In doing so, the majority
not only disregards Becker, it needlessly creates an intra-
circuit conflict with our decisions in Fisher, Barron, and Shin.

I dissent.

2
The majority correctly observes that the Board should decide in the
first instance whether Reyes-Torres sought to vacate his controlled sub-
stance conviction due to potential immigration consequences. See
Cardoso-Tlaseca, 460 F.3d at 1107 n.3. The majority, however, does not
even follow the approach it purports to adopt. Instead, the majority defini-
tively states that Reyes-Torres’s “2007 guilty plea has since been vacated
and can no longer serve as a basis of removability.” This statement is diffi-
cult to reconcile with Cardoso-Tlaseca and begs the question of what is
left for the Board to decide on remand.