Unreported / Non-Citable
Background
Chanh Huy Luong is a Vietnamese national who entered the United States before 1975. A removal order was entered against him in 1992 — but no U.S.-Vietnam repatriation agreement existed at the time, making that order effectively unenforceable for decades. Even after the two countries reached a partial agreement in 2008, it excluded Vietnamese nationals who had entered the United States before July 12, 1995. Only in November 2020 did an expanded agreement take effect that would have allowed someone in Luong’s position to actually be deported to Vietnam.
In the meantime, Luong hired a lawyer in December 2018 to pursue relief under California Penal Code § 1473.7 — a California statute that allows noncitizens to vacate a conviction when their attorney failed to properly advise them of its immigration consequences. His conviction was modified on July 29, 2019, and he filed a motion to reopen his immigration case before an Immigration Judge on July 22, 2020 — months before Vietnam agreed to repatriate individuals in his situation.
The Board of Immigration Appeals (BIA), the federal administrative body that hears immigration appeals, denied the motion to reopen on two grounds: (1) Luong had not exercised sufficient diligence in seeking post-conviction relief, so equitable tolling of the filing deadline was unwarranted; and (2) Luong had not adequately proven that his conviction was vacated for a substantive or procedural reason rather than an immigration-related one. Luong petitioned the Ninth Circuit for review.
The Court’s Holding
The Ninth Circuit granted the petition for review and remanded to the BIA, finding legal errors on both grounds.
On equitable tolling, the court applied its recent decision in Eskilian v. Bondi, 172 F.4th 682 (9th Cir. 2026), which held that a noncitizen subject to a removal order but not facing actual imminent deportation cannot reasonably be expected to immediately take steps to challenge removability. The relevant diligence clock begins when the individual learns they face a realistic and imminent threat of removal — not from the date of the original removal order. Because Luong was not removable under any repatriation agreement until late 2020, and may never have received notice from the agency that he was at immediate risk, the BIA used the wrong starting point for its diligence analysis. The court remanded for supplemental briefing and reconsideration under the correct Eskilian standard.
On the burden-of-proof issue, the court held that once Luong produced evidence his conviction had been vacated, the burden shifted to the government to prove the vacatur was for immigration-related (rather than substantive or procedural) reasons under Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006). The BIA improperly placed that burden on Luong. The court further found that the § 1473.7 motion in the record plainly invoked subdivision (a)(1) — vacatur for prejudicial error regarding immigration consequences — which the Ninth Circuit had already held in Bent v. Garland, 115 F.4th 934 (9th Cir. 2024) constitutes a substantive or procedural basis for vacatur. Judge Bumatay concurred in the judgment only, agreeing that remand was warranted on the equitable tolling issue but declining to reach the burden-of-proof and § 1473.7 questions.
Key Takeaways
- Under Eskilian v. Bondi, the equitable tolling diligence clock in immigration reopening proceedings does not start from the date of a decades-old removal order if the noncitizen was not actually removable at that time; courts must look to when the individual realistically faced imminent deportation.
- Once a noncitizen shows their conviction was vacated, the burden shifts to the government to prove the vacatur was immigration-motivated rather than substantive or procedural — the BIA cannot flip that burden back onto the petitioner.
- A vacatur under California Penal Code § 1473.7(a)(1) — for an attorney’s failure to advise of immigration consequences — constitutes a “substantive or procedural error” rendering the conviction legally invalid for immigration purposes under Bent v. Garland.
- Vietnamese nationals subject to pre-1995 removal orders may have strong equitable tolling arguments for late motions to reopen, even if they waited years after § 1473.7 was enacted, as long as they acted promptly once they faced an actual risk of removal.
- Defense counsel need not specify which § 1473.7 subsection a state court relied upon; the content of the motion controls, and the BIA must accept a vacatur unless it can affirmatively show the conviction was set aside for immigration-related reasons only.
Why It Matters
California has a large Vietnamese-American immigrant population, many of whom entered before the fall of Saigon in 1975 and have lived in legal limbo under removal orders that were unenforceable for decades. For immigration defense attorneys, this decision reinforces that the window to seek post-conviction relief and file motions to reopen is not necessarily foreclosed by an old removal order — if the client was never actually removable, the equitable tolling analysis must account for when they first faced a genuine removal threat.
The ruling also strengthens California Penal Code § 1473.7 as a post-conviction tool. The legislature created this statute specifically to help noncitizens whose criminal defense attorneys failed to advise them of deportation consequences. The Ninth Circuit’s confirmation that a § 1473.7 vacatur shifts the burden to the government — and that the BIA cannot demand the noncitizen specify the exact subsection — lowers a significant procedural hurdle for using § 1473.7 to challenge convictions driving removal orders.