FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR JAVIER AVILA-SANCHEZ,
Petitioner, No. 06-70663
v.
Agency No.
A36-649-343
MICHAEL B. MUKASEY,* Attorney
General, OPINION
Respondent.
Petition to Review an Order of the
Board of Immigration Appeals
Submitted October 15, 2007**
Pasadena, California
Filed December 3, 2007
Before: Ferdinand F. Fernandez and Kim McLane Wardlaw,
Circuit Judges, and Raner C. Collins,*** District Judge.
Opinion by Judge Fernandez
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States. Fed. R. App. P.
43(c)(2).
**The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
***The Honorable Raner C. Collins, United States District Judge for
the District of Arizona, sitting by designation.
15631
AVILA-SANCHEZ v. MUKASEY 15633
COUNSEL
Carlos Vellanoweth, John Wolfgang Gehart, Elena Yampol-
sky, and Russell Marco Jauregui, Vellanoweth & Gehart,
LLP, Los Angeles, California, for the petitioner.
Edward J. Duffy, U.S. Department of Justice, Office of Immi-
gration Litigation, Washington, D.C., for the respondent.
15634 AVILA-SANCHEZ v. MUKASEY
OPINION
FERNANDEZ, Circuit Judge:
Oscar Javier Avila-Sanchez, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’
order denying his special motion to reopen so that he could
apply for a waiver of inadmissibility pursuant to former 8
U.S.C. § 1182(c) (1994).1 The BIA determined that due to the
fact of Avila’s prior deportation and subsequent illegal reen-
try, he was not entitled to relief. In addition, it refused to
allow him to collaterally attack prior proceedings. We deny
the petition.
BACKGROUND
Avila was a lawful permanent resident, who first entered
the country in 1980. In July 1994, Avila pled guilty and was
convicted of possession of a controlled substance (heroin),
pursuant to California Health and Safety Code § 11350. In
November 1996, the former Immigration and Naturalization
Service issued an Order to Show Cause charging Avila with
a controlled substance violation, and placed him in deporta-
tion proceedings. [First Proceeding]. In those proceedings, the
Immigration Judge found Avila deportable as charged, ineligi-
ble for relief under § 1182(c), and ineligible for cancellation
of removal.
Avila filed a timely motion for reconsideration, in which he
requested a waiver of inadmissibility under § 1182(c).2 The
1
This is also often referred to as the Immigration and Nationality Act
§ 212(c).
2
At the time that Avila pled guilty, 8 U.S.C. § 1182(c) read in pertinent
part: “The first sentence of this subsection shall not apply to an alien who
has been convicted of one or more aggravated felonies and has served for
such felony or felonies a term of imprisonment of at least 5 years.” 8
U.S.C. § 1182(c) (1994).
AVILA-SANCHEZ v. MUKASEY 15635
BIA applied the 1996 version of § 1182(c) and on February
5, 1998, denied the motion. It held that In re Soriano, 21 I.
& N. Dec. 516 (BIA 1996) was dispositive, and that Avila
was statutorily ineligible for relief as an “ ‘alien who is
deportable by reason of having committed any criminal
offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D)
[8 U.S.C. § 1251(a)(2)(A)(iii), (B), (C), or (D)], or any
offense covered by section 241(a)(2)(A)(ii) [8 U.S.C.
§ 1251(a)(2)(A)(ii)] for which both predicate offenses are
covered by section 241(a)(2)(A)(i) [8 U.S.C. § 1251(a)(2)
(A)(i)].’ ”3 Avila was represented by counsel, but neither filed
a petition for review or habeas corpus from that order, nor
asked for a stay of deportation to challenge the order of
removal. He was deported on February 20, 1998.
Avila illegally returned to the United States in July 1998.
In April 2005, he was stopped for suspicion of driving under
the influence and detained. The Department of Homeland
Security requested that he remain in custody, and on April 29,
2005, issued a Notice to Appear. [Second Proceeding]. The
Notice to Appear charged that Avila was not a citizen or
national of the United States and that he was removable for
entering the United States without inspection after he had
been previously removed. Avila admitted that he was remov-
able as charged, but waited to collaterally attack his prior
removal. On June 28, 2005, the IJ ordered him removed.
However, on April 20, 2005, Avila had filed with the BIA
an unopposed special motion to reopen the First Proceeding
— his 1998 removal proceeding — to seek § 1182(c) relief
under 8 C.F.R. § 1003.44. In that motion, Avila failed to
advise the BIA that he had been deported previously pursuant
to a final order of removal, which made him ineligible for
special reopening. Based on that incomplete information, the
3
This was due to a change in the provisions of § 1182(c) made by the
Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110
Stat. 1214 (1996), which became effective April 24, 1996.
15636 AVILA-SANCHEZ v. MUKASEY
BIA reopened the First Proceeding and remanded the case on
July 7, 2005.
The day after the BIA reopened the First Proceeding, Avila
appealed the IJ’s June 2005 order of removal in the Second
Proceeding to the BIA. Avila then requested that the BIA con-
solidate his removal proceeding (the Second Proceeding) with
the motion to reopen his First Proceeding. On August 11,
2005, the IJ in the First Proceeding requested that the BIA
reconsider its decision to reopen the First Proceeding because
Avila’s departure and illegal reentry made him ineligible to
have his case reopened under 8 C.F.R. § 1003.44.
In September 2005, the BIA dismissed Avila’s appeal of
the June 28, 2005, removal order in the Second Proceeding.
He moved the BIA to reconsider that decision and renewed
his request to consolidate the removal case (Second Proceed-
ing) with the special motion to reopen (First Proceeding). On
January 23, 2006, the BIA issued orders in both proceedings.
The first order denied Avila’s motion for reconsideration of
its decision denying his appeal from the June 2005 order of
removal in the Second Proceeding. The second order held that
the BIA had erred in granting Avila’s motion to reopen the
First Proceeding. The BIA pointed out that Avila was previ-
ously deported and had illegally reentered the United States,
and was, therefore, ineligible for reopening. See 8 C.F.R.
1003.44(k)(2). It, therefore, vacated its July 2005 reopening
decision, reinstated Avila’s motion to reopen, and denied it.
This petition for review followed.
STANDARD OF REVIEW
We review the BIA’s decision to deny a motion to reopen
for abuse of discretion. Mohammed v. Gonzales, 400 F.3d
785, 791 (9th Cir. 2005). We review constitutional and legal
issues de novo. Ram v. INS, 243 F.3d 510, 516-17 (9th Cir.
2001); Mohammed, 400 F.3d at 791-92. However, we do
accord appropriate deference to the BIA. See INS v. Aguirre-
AVILA-SANCHEZ v. MUKASEY 15637
Aguirre, 526 U.S. 415, 423-25, 119 S. Ct. 1439, 1445-46, 143
L. Ed. 2d 590 (1999).
DISCUSSION
Avila claims that the BIA erred when it denied his petition
to reopen the First Proceeding so that he could challenge its
decision of February 5, 1998, that he was not entitled to
1182(c) relief, and so that he could apply for that relief. At the
time of the February 5, 1998, decision, the BIA had relied
upon its prior determination4 that the AEDPA amendments to
§ 1182(c) applied to people who had pled guilty to offenses
before it was enacted. As is well known, the courts later deter-
mined that the contrary was true. See INS v. St. Cyr, 533 U.S.
289, 326, 121 S. Ct. 2271, 2293, 150 L. Ed. 2d 347 (2001);
see also Magana-Pizano v. INS, 200 F.3d 603, 611-13 (9th
Cir. 1999).
Thereafter, a regulation was adopted to provide for a spe-
cial motion to reopen cases where relief had been erroneously
denied under the old regime. See 8 C.F.R. § 1003.44(a)-(c).
However, that regulation specifically provides that: “This sec-
tion does not apply to: . . . (2) Aliens issued a final order of
deportation or removal who then illegally returned to the
United States.” Id. § 1003.44(k)(2). The BIA interpreted that
regulation to preclude reopening of the First Proceeding. The
BIA did so because Avila had undoubtedly been deported
while he was subject to a final order of deportation issued
February 5, 1998, and had unquestionably returned illegally.
On its face, the BIA’s decision was not erroneous.
However, Avila argues the BIA erred because the order of
deportation in the First Proceeding was illegal, and could not,
therefore, have been the basis for his removal from the United
States. Similarly, he asserts that he should have been able to
4
See In re Soriano, 21 I. & N. Dec. at 540.
15638 AVILA-SANCHEZ v. MUKASEY
collaterally attack the result of the First Proceeding. He is
wrong.
[1] As we have explained before, the mere fact that the BIA
made an interpretation error was insufficient to make its order
“unlawful.” See Alvarenga-Villalobos v. Ashcroft, 271 F.3d
1169, 1172-73 (9th Cir. 2001). In that case, the alien had been
deported after having been denied § 1182(c) relief, but
returned illegally. Id. at 1171. He asserted that because the
original determination was erroneous, his deportation was
unlawful. Id. 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. Id. at 1172. As we stated:
Alvarenga contends that [the provision in ques-
tion] 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 per-
fectly lawful under the law at the time he was
deported. “[I]t has long been established that a final
civil judgment entered under a given rule of law may
withstand subsequent judicial change in that rule.”
Id. at 1173. For all practical purposes, this case is the same.5
Thus, Avila’s argument about “lawfulness” cannot save his
position regarding the reopening of the First Proceeding or,
for that matter, allowance of a collateral attack on the First
Proceeding results.
[2] But, argues Avila, the regulation violates equal protec-
tion principles because the treatment it accords to removed
aliens differs from and is less favorable than the treatment
accorded to those who have not yet been removed. However,
5
That the order of deportation for Avila came just under two years ear-
lier, rather than over two years earlier, is of no significance.
AVILA-SANCHEZ v. MUKASEY 15639
in Alvarenga-Villalobos we disposed of a similar claim
regarding the distinction between classes of aliens applying
for § 1182(c) relief. As we said: “Distinctions between differ-
ent classes of aliens in the immigration context are subject to
rational basis review and must be upheld if they are rationally
related to a legitimate government purpose.” Id. at 1174. And,
we held: “The government has a legitimate interest in discour-
aging aliens who have already been deported from illegally
reentering, and this distinction is rationally related to that pur-
pose.” Id. Avila’s claim lacks puissance.
Avila’s due process assertions fare no better. His claim that
the regulation violates due process is simply an allotrope of
his other attacks upon it, and has as much effect. See id. at
1173-74. His ululation about the fact that the post-reentry por-
tion of the First Proceeding was before one judge, while the
Second Proceeding was before a different judge is otiose. Any
awkwardness was largely due to his own omissions.6 In any
event, even if there were some error, the First Proceeding and
the Second Proceeding were both before the BIA when it
issued its ultimate orders on January 23, 2006, and Avila has
not demonstrated any prejudice. See Larita-Martinez v. INS,
220 F.3d 1092, 1095 (9th Cir. 2000).
CONCLUSION
[3] Avila was removed in February 1998 because of his
criminal history. He returned illegally in 1998. When stopped
in 2005 for suspicion of driving under the influence and
detained, he sought to reopen proceedings and to attack the
prior proceeding. He was ultimately denied that relief, and
6
When Avila asked the BIA to reopen the First Proceeding, he did not
bother mentioning that he had been deported and had then reentered the
United States without inspection. Also, when he asked the IJ who was
hearing the mistakenly reopened First Proceeding to transfer the matter to
the IJ who was hearing the Second Proceeding, he did not bother mention-
ing that the Second Proceeding had already been decided by that IJ and
was on appeal to the BIA.
15640 AVILA-SANCHEZ v. MUKASEY
was again ordered removed. He, with much febrile hyperbole,
claims that denying him the right to reopen or collaterally
attack the prior proceedings violates his constitutional rights.
We disagree. The provisions of 8 C.F.R. § 1003.44(k)(2) are
constitutional and were not improperly applied to Avila. Nor
did the BIA err when it refused to allow a collateral attack on
the prior proceeding.
Petition DENIED.