FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEJANDRO LOPEZ VAZQUEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 18-70329

Agency No.

A074-608-073

OPINION

On Petition for Review of an Order of the

Department of Homeland Security

Argued and Submitted August 12, 2021

Seattle, Washington

Filed November 12, 2021

Before: Carlos T. Bea, Daniel A. Bress, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Bress
2 LOPEZ VAZQUEZ V. GARLAND

SUMMARY*

Immigration

Dismissing Alejandro Lopez Vazquez’s petition for 

review of a 2017 Department of Homeland Security order 

reinstating his 1996 removal order, the panel concluded that 

Lopez’s 1996 order had a valid basis both when it was issued 

and when he was removed, and therefore, he failed to 

establish a miscarriage of justice that would permit the court 

to entertain a collateral attack on the 1996 order.

Lopez collaterally attacked his 1996 order on the ground 

that the drug conviction underlying that order was vacated in 

2014. It was undisputed that Lopez’s conviction was legally 

valid at the time his original removal order was issued and 

when it was executed. The panel explained that in reviewing 

a reinstatement order, the court has jurisdiction under 

8 U.S.C. § 1252(a)(2)(D) to entertain a collateral attack on 

the underlying removal order only if the petitioner can show 

that he or she suffered a gross miscarriage of justice in the 

initial immigration hearing. 

Lopez argued that he suffered a gross miscarriage of 

justice because the vacatur of his conviction made his 

removal order “void ab initio.” The panel concluded that 

this argument failed under Hernandez-Almanza v. INS, 547 

F.2d 100 (9th Cir. 1976), superseded by statute on other 

grounds as stated in Planes v. Holder, 652 F.3d 991 (9th Cir. 

2011), and Vega-Anguiano v. Barr, 982 F.3d 542 (9th Cir. 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
LOPEZ VAZQUEZ V. GARLAND 3

2019). In Hernandez-Almanza, the petitioner was removed 

based on a drug conviction and later obtained a nunc pro tunc

order vacating that conviction. This court rejected the 

petitioner’s argument that his exclusion order was void, 

holding that a valid exclusion order is not disturbed by postconviction relief and that, therefore, the petitioner failed to 

meet the gross miscarriage of justice standard. In contrast, 

in Vega-Anguiano, the petitioner was ordered removed 

based on a valid conviction, but his conviction was expunged 

before the government executed the removal order. The 

court held that this was one of the rare cases in which a 

collateral attack was permitted under the gross miscarriage 

of justice standard. 

In light of those precedents, the panel concluded that 

when a removal order is legally valid at the time of entry and 

execution, a petitioner cannot challenge a reinstatement of 

that order as a gross miscarriage of justice based on 

developments that call into question the original removal 

order, but which occurred after the petitioner was removed 

from this country. The panel also observed that this 

approach was consistent with that of other circuits. 

Separately, the panel concluded that Lopez could not 

show a gross miscarriage of justice for another reason: he 

was independently removable at the time of his underlying 

proceedings for having entered the United States unlawfully. 

Rejecting Lopez’s contention that his unlawful presence 

charge was insufficient to guarantee his deportation, the 

panel explained that Lopez’s speculation on this point was 

insufficient to demonstrate a gross miscarriage of justice. 
4 LOPEZ VAZQUEZ V. GARLAND

COUNSEL

David Froman (argued), Froman Law Firm, San Diego, 

California, for Petitioner.

Rachel L. Browning (argued), Trial Attorney; Jessica E. 

Burns, Senior Litigation Counsel; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.

OPINION

BRESS, Circuit Judge:

Following several unlawful reentries into this country, 

Alejandro Lopez Vazquez (Lopez) petitions for review of a 

Department of Homeland Security order reinstating his 1996 

order of removal. Through his petition, Lopez mounts a 

collateral attack on his underlying order of removal on the 

ground that the drug conviction on which it was based has 

since been vacated. He claims this invalidates his 

reinstatement order, too.

In reviewing a reinstatement order, we have jurisdiction 

under 8 U.S.C. § 1252(a)(2)(D) to entertain a collateral 

attack on the underlying removal order only in cases of 

“gross miscarriage of justice.” But we hold there was no 

gross miscarriage of justice here. Lopez’s original removal 

order had a valid legal basis both at the time it was issued 

and when Lopez was later removed. Under our precedents, 

that is sufficient reason for concluding that Lopez may not 

collaterally attack his underlying removal order. We thus 

dismiss Lopez’s petition for review.
LOPEZ VAZQUEZ V. GARLAND 5

I

Lopez, a citizen of Mexico, first entered the United 

States unlawfully in January 1992. In 1995, he pleaded 

guilty to possession of a controlled substance (cocaine) in 

Utah state court. In 1996, an Immigration Judge (IJ) found 

Lopez removable. The Board of Immigration Appeals (BIA) 

dismissed Lopez’s appeal. Lopez was then removed from 

the United States in February 1998. It is undisputed that at 

the time Lopez’s original removal order was issued and later 

executed, his Utah conviction was legally valid and provided 

a proper basis for removing Lopez from the United States.

Over the next few months, Lopez tried to reenter the 

United States illegally several times. It appears that Lopez 

was apprehended in Salt Lake City in April 1998, removed 

again to Mexico on May 22, 1998, and apprehended in the 

United States again on May 27, 1998. This time, he was 

convicted of illegal reentry, 8 U.S.C. § 1326(a), and served 

six months in prison. Thereafter, DHS reinstated his 

removal order, and he was removed again to Mexico on 

November 30, 1998. At the latest by January 1, 2001, and 

perhaps as early as May 2000, Lopez had again illegally 

reentered this country. Lopez has since remained in the 

United States illegally. He is now married to an American 

citizen and has children who are citizens.

In 2014, a Utah state court granted Lopez’s motion to 

withdraw his guilty plea and vacate his 1995 cocaine 

conviction based on ineffective assistance of counsel and a 

jurisdictional defect. Lopez then pleaded guilty to 

possessing benzylfentanyl, in violation of Utah law. 

Because benzylfentanyl is not listed in section 102 of the 

Controlled Substances Act, 21 U.S.C. § 802, possessing it is 

not a removable offense. See, e.g., Cheuk Fung S-Yong v. 

Holder, 600 F.3d 1028, 1034 (9th Cir. 2010).
6 LOPEZ VAZQUEZ V. GARLAND

In August 2017, Lopez’s wife filed an immigration 

petition on his behalf. Lopez also filed for adjustment of 

status to permanent resident. In December 2017, however, 

immigration enforcement officers arrested Lopez and sought 

to reinstate his 1996 removal order.

Lopez requested asylum, but the asylum officer found 

Lopez did not have a reasonable fear of persecution in 

Mexico. An IJ affirmed that determination and the BIA 

denied Lopez’s motion to reopen his removal proceedings 

sua sponte as well as Lopez’s motion for reconsideration. 

The Tenth Circuit dismissed Lopez’s petitions for review of 

those decisions. See Lopez-Vazquez v. Barr, 769 F. App’x 

591, 595 (10th Cir. 2019).

In the meantime, Lopez had petitioned this Court for 

review of DHS’s reinstatement order. He argues that the 

reinstatement order is invalid because the underlying order 

of removal on which it is based was invalidated when the 

Utah court vacated his conviction for cocaine possession.1

II

Under 8 U.S.C. § 1231(a)(5), immigration authorities 

may reinstate a prior order of removal if a non-citizen 

reenters illegally. This “only requires proof that 

(1) petitioner is an alien, (2) who was subject to a prior 

removal order, and (3) who illegally reentered the United 

1 The government argues that Lopez’s challenge is untimely because 

he did not file his petition for review within 30 days of his original 1996 

removal order. See 8 U.S.C. § 1252(b)(1). Circuit precedent now 

forecloses that argument. See Vega-Anguiano v. Barr, 982 F.3d 542, 545 

(9th Cir. 2019) (holding that a petitioner making a collateral attack on 

his original order of removal need only file a petition for review within 

30 days of the reinstatement order).
LOPEZ VAZQUEZ V. GARLAND 7

States.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 

(9th Cir. 2007) (en banc). Upon those findings, which we 

may review, see id. at 495–96; 8 U.S.C. § 1252(a)(1), but 

which are not in dispute here, “the prior order of removal is 

reinstated from its original date and is not subject to being 

reopened or reviewed.” 8 U.S.C. § 1231(a)(5).

Nonetheless, 8 U.S.C. § 1252(a)(2)(D) reinstates our 

jurisdiction to review certain constitutional claims or 

questions of law raised in a petition for review, including 

review of reinstatement orders. Garcia de Rincon v. DHS, 

539 F.3d 1133, 1137 (9th Cir. 2008). In the context of our 

review of a reinstatement order, we have interpreted 

§ 1252(a)(2)(D) to permit a limited collateral attack on the 

original removal order on which the reinstatement order is 

premised. See, e.g., Vega-Anguiano v. Barr, 982 F.3d 542, 

544, 547 (9th Cir. 2019); Villa-Anguiano v. Holder, 727 F.3d 

873, 875, 877 & n.3 (9th Cir. 2013); Garcia de Rincon, 

539 F.3d at 1138.

The standard, however, is a high one: such a collateral 

attack is allowed only “if the petitioner can show that he has 

suffered a ‘gross miscarriage of justice’ in the initial 

deportation proceeding.” Vega-Anguiano, 982 F.3d at 544 

(quoting Garcia de Rincon, 539 F.3d at 1138). We have 

described the “gross miscarriage of justice” standard as 

imposing “strict limitations on collateral attacks on prior 

removal orders.” Id. at 547. We have also said that the 

circumstances in which such an attack would be appropriate 

will be “rare” and “extremely limited.” Id. at 547, 551.

These observations are consistent with the statutory 

scheme. When a non-citizen is removed from the United 

States and reenters without permission, the government may 

reasonably seek to rely on the original order of removal and 

the process previously afforded. 8 U.S.C. § 1231(a)(5). As 
8 LOPEZ VAZQUEZ V. GARLAND

we explained in Morales-Izquierdo, non-citizens “have no 

constitutional right to force the government to re-adjudicate 

a final removal order by unlawfully reentering the country. 

Nor is the government required to expend vast resources on 

extraneous procedures before reinstating a removal order 

that has already been finalized and executed.” 486 F.3d at 

498.

The immigration laws provide ample means for 

challenging an order of removal. But once a non-citizen has 

exhausted these procedures and his removal is effectuated, 

“allowing an alien to manufacture an opportunity to contest 

his earlier removal by reentering the country illegally” 

would inspire violations of our nation’s immigrations laws. 

Villa-Anguiano, 727 F.3d at 880. The gross miscarriage of 

justice standard recognizes that the fair and disciplined 

administration of our immigration system requires both a 

measure of finality in prior adjudications and the creation of 

disincentives against future law violation. See id.

Lopez argues that he suffered a gross miscarriage of 

justice because the 1995 drug conviction underlying his 

original removal order was vacated, making that order “void 

ab initio.” This argument fails under our precedents. In 

particular, two of our cases—Hernandez-Almanza v. INS, 

547 F.2d 100 (9th Cir. 1976), superseded by statute on other 

grounds as stated in Planes v. Holder, 652 F.3d 991, 995 

(9th Cir. 2011), and Vega-Anguiano v. Barr, 982 F.3d 542 

(9th Cir. 2019)—demonstrate why Lopez cannot show a 

gross miscarriage of justice.

In Hernandez-Almanza, the petitioner, a lawful 

permanent resident, was removed based on his drug 

conviction. 547 F.2d at 101–02. He then reentered the 

United States illegally. Id. at 102. The government sought 

to reinstate his prior removal order, but while those 
LOPEZ VAZQUEZ V. GARLAND 9

proceedings were pending the petitioner obtained a nunc pro 

tunc order vacating his drug conviction. Id. Like Lopez, the 

petitioner argued that “since the state nunc pro tunc order 

vacated his guilty plea and conviction as of the date of those 

proceedings, his status as an excludable alien, which was 

based on that conviction, is also void as of its original date 

of entry.” Id.

We disagreed. As relevant here, we held that “a valid 

exclusion order based upon a final judgment is not disturbed 

by a post-conviction attack upon that judgment.” Id. at 103. 

The petitioner’s conviction “serve[d] as a valid basis” for his 

removal order, and, therefore, the “post-conviction 

expungement order by the state court did not affect the 

validity of his exclusion.” Id. We thus rejected the 

petitioner’s argument that he could meet the gross 

miscarriage of justice standard, and that the later 

expungement of his conviction “should erase all 

consequences, including exclusion, which stemmed from the 

now-vacated conviction.” Id. That determination controls 

here.

Compare Hernandez-Almanza with Vega-Anguiano. 

The petitioner in Vega-Anguiano was ordered removed 

based on a valid, qualifying conviction, but his conviction 

was expunged before the government executed the removal 

order and returned him to Mexico (some ten years after an IJ 

first ordered him removed). 982 F.3d at 544, 546–47. The 

petitioner then reentered the United States illegally, and the 

government sought to reinstate the petitioner’s prior order of 

removal. Id. at 546–47.

We held that this was “one of the rare cases” in which a 

collateral attack on the underlying order of removal was 

permitted under the gross miscarriage of justice standard. Id.

at 547. That was because, we explained, when “an alien has 
10 LOPEZ VAZQUEZ V. GARLAND

been removed on the basis of a deportation or removal order 

that lacked a valid legal basis at the time of its issuance or 

execution, a gross miscarriage of justice occurs.” Id. at 549.

We were careful to emphasize, however, that this was 

consistent with Hernandez-Almanza, because in that case the 

underlying order of removal remained valid at the time it was 

issued and later executed. Id. at 548–49 (discussing 

Hernandez-Almanza). We explained that “Vega-Anguiano, 

in contrast to Hernandez-Almanza, had his conviction 

expunged prior to—indeed, many years prior to—the 

execution of his removal order in 2008.” Id. at 544, 549.

The distinction is a critical one. The expungement of 

Vega-Anguiano’s conviction had eliminated “the legal 

basis” for his removal order “by the time” the government 

returned Vega-Anguiano to Mexico. Id. at 546, 549. There 

is no comparable injustice when, as here, the removal order 

was valid as of the time of removal and the petitioner seeks 

to minimize his illegal reentry through a collateral attack on 

his original removal order. In that instance, the rarely 

satisfied gross miscarriage of justice standard is not met, and 

the government’s interests in finality, deterring illegal 

reentries, and promoting a stable immigration system 

prevail.

When a removal order is legally valid at the time of entry 

and execution, a petitioner cannot challenge a reinstatement 

of that order as a gross miscarriage of justice based on 

developments that call into question the original removal 

order, but which occurred after the petitioner was removed 

from this country. Id. at 548–49; Hernandez-Almanza, 

547 F.2d at 103.

This approach is consistent with that of other circuits. 

See, e.g., Sanchez-Gonzalez v. Garland, 4 F.4th 411, 416 
LOPEZ VAZQUEZ V. GARLAND 11

(6th Cir. 2021) (declining to adopt the “gross miscarriage of 

justice” standard, but explaining that the standard would not 

apply regardless when petitioner’s conviction was “in 

effect” “at the time” of his removal); Gonzalez-Cantu v. 

Sessions, 866 F.3d 302, 306 (5th Cir. 2017) (explaining that 

the “gross miscarriage of justice” standard is not met when 

the removal order was not “clearly unlawful” at the time of 

the original removal proceedings); Debeato v. Att’y Gen. of 

U.S., 505 F.3d 231, 236 (3d Cir. 2007) (“[A] gross 

miscarriage of justice has been found only when ‘the 

individual should not have been deported based on the law 

as it existed at the time of the original deportation.’”) 

(emphasis omitted) (quoting Robledo-Gonzales v. Ashcroft, 

342 F.3d 667, 682 n.13 (7th Cir. 2003)).

Finally, separate and apart from the fact that Lopez’s 

Utah drug conviction provided a valid legal basis for 

removal at the time his original removal order was entered 

and executed, see Vega-Anguiano, 982 F.3d at 548–49, 

Lopez cannot show a gross miscarriage of justice for another 

reason: he was independently removable for having entered 

the United States unlawfully. According to the 

administrative record, and by his own admission, Lopez 

entered the country without inspection in 1992. He was 

charged with that violation, which also rendered him 

removable under former 8 U.S.C. § 1251(a)(1)(B) (amended 

in 1996). In dismissing his appeal of the removal order, the 

BIA, in addition to citing Lopez’s Utah drug conviction, also 

cited Lopez’s illegal entry, noting that the IJ “found the 

respondent deportable based on . . . 8 U.S.C. 

§[] 1251(a)(1)(B). . . .”

Lopez in his briefing responds that “the unlawful 

presence charge was insufficient, from a practical 

standpoint, to guarantee [his] deportation.” But Lopez’s 
12 LOPEZ VAZQUEZ V. GARLAND

speculation on this point is insufficient to demonstrate a 

gross miscarriage of justice. Lopez cannot meet that high 

standard when it is apparent there was a “valid legal basis” 

for his removal order, both when it was issued and executed. 

Vega-Anguiano, 982 F.3d at 547.

* * *

For the foregoing reasons, the petition for review is

DISMISSED.