Jose Madrigal-Zavala v. Eric Holder, Jr.

MEMORANDUM

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-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…