Reyes-Torres

dissenting:

The majority’s decision fails to follow the well-established principles of agency deference and misreads our recent precedent 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)© (2008). During his removal proceedings, Reyes-Torres conceded 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 aggravated 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 According to Reyes-Torres, he was entitled to relief because he had recently withdrawn his guilty plea on the controlled substance charge.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 Reyes-Torres had departed the United…

Opinion by Judge THOMAS; Dissent by Judge WALLACE.

OPINION

In this petition for review, we consider whether the Board of Immigration Appeals (“BIA”) has jurisdiction to review a *1075 motion to reconsider and reopen filed after a petitioner has been involuntarily removed from the United States. We conclude 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 California 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”),…

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

Daniel I. Smulow, Office of Immigration Litigation, Washington, D.C., for the respondent.

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

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

Before: J. CLIFFORD WALLACE and SIDNEY R. THOMAS, Circuit Judges, and RICHARD MILLS, Senior District Judge. [*]

Opinion by Judge THOMAS; Dissent by Judge WALLACE.

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 conclude that it has jurisdiction and we grant the petition for review.

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 California Health…