CA9 on Collateral Consequences: Bent v. Garland

Bent v. Garland (2-1)

"This is a rare case: both the government and Petitioner Claude Bent seek remand so that the Board of Immigration Appeals (“BIA”) can reassess its decision denying Bent’s motion to reopen removal proceedings. Bent moved to reopen his removal proceedings after a California court, acting under California Penal Code § 1473.7(a)(1), vacated the conviction that formed the basis of his removal because it was premised on an involuntary plea, in violation of Bent’s Fifth Amendment rights. Bent argues, and the government agrees, that the BIA erred by mischaracterizing § 1473.7(a)(1) as a statute that enables a court to vacate a conviction solely to mitigate its collateral immigration consequences, i.e., issue a “rehabilitative vacatur.” Understandably, both parties ask that we remand so that the BIA can correct its mistake, reconsider the impact of the § 1473.7 vacatur, and determine whether Bent diligently pursued his rights such that he is entitled to equitable tolling of the motion-to-reopen deadline. Absent a showing of bad faith or frivolity, we typically grant such remand requests. Accordingly, and because the BIA misconstrued the nature of Bent’s vacatur and misapplied our equitable-tolling precedent, we grant the government’s non-frivolous request for remand so that the BIA may adjudicate Bent’s motion to reopen under the correct legal standards."  (Dissent by Danielle J. Forrest, a Trump appointee and Federalist Society member.)

Video of the oral argument here.

[Hats off to Kari Hong (argued) and Andrew Wachtenheim, Immigrant Defense Project, New York, New York, for Amici Curiae Alberto Gonzalez; American Immigration Council, Andrea H. Sloan, Annie Garcy, Black Alliance for Just Immigration, Bruce J. Einhorn, Carol King, Cecelia Espenoza, Charles Honeyman, Dana Marks, Eliza Klein, Former Immigration Judges, George Chew, Heartland Alliance’s National Immigrant Justice, Holly Cooper, Ilyce Shugall, Immigrant Defense Project, Immigrant Justice Idaho, Ira Kurzban, Jeffrey Chase, John Richardson, Laura Ramirez, Lory Rosenberg, Miriam Hayward, National Immigration Project of the National Lawyers Guild, Noel Ferris, Oregon Justice Resource Center, Patricia Sheppard, Paul Grussendorf, Paul Schmidt, Polly Webber, Rocky Mountain Immigrant Advocacy Network, Steven Abrams, Steven Morley and Terry Bain, Rebecca G. Powell, Horvitz & Levy LLP, Burbank, California, for Amici Curiae American Civil Liberties Union, California Attorneys for Criminal Justice, California Public Defenders Association and Immigrant Legal Resource Center!]