The petitioner, Mr. Vasquez, was ordered removed on a single charge of removability that the government now concedes is invalid under the Ninth Circuit's en banc decision in Gomez, which issued in January. According to petitioner's counsel, the government's time to seek certiorari has lapsed. His attorney, Catherine Balkosky, argued at oral argument on April 20 that the court should remand with instructions to vacate the removal order, not merely remand for the BIA to apply Gomez in the first instance. The government, represented by Alana Young for the acting attorney general, opposed vacatur and asked instead for a remand that would leave the BIA with two options: terminate proceedings or send the case back to the immigration judge, where DHS could lodge additional charges under the existing notice to appear.
The practical stakes of that distinction drove most of the argument. Balkosky argued that a simple remand without vacatur risks leaving Vasquez detained for months or years while the BIA either sits on the Gomez issue or revives its earlier position that he waived appeal. She told the panel that Vasquez has been detained since August 2023, that the government attempted to remove him in August 2024 requiring emergency motion practice, and that discussions with the government about his release during the pendency of the appeal did not produce an agreement. He remains detained.
The government's core concern was res judicata. Young explained that if the Ninth Circuit vacates the removal order, the current proceedings end, and any new charges would have to be brought under a separate notice to appear — a separate action to which res judicata would apply, barring charges that could have been brought in the first proceeding. If the court instead remands without vacating the removal order, the government argued, DHS could amend the existing notice to appear with an I-261 to add new charges within the same proceedings, avoiding that bar. Young told the panel that the government has identified additional charges it would like to bring.
The panel pressed Young on why the government had not already acted. Judges noted that the original three-judge panel decision in Gomez issued roughly two years ago, that the en banc decision issued in January, and that Vasquez has remained detained throughout. Young acknowledged there was no legal bar to the government having served Vasquez with a new notice to appear during that period, and that the decision not to do so was a matter of litigation strategy and office policy to pursue a stay. She also acknowledged that the government is currently opposing a habeas petition Vasquez has filed, which Balkosky said is pending in the Southern District.
On rebuttal, Balkosky pointed to Aguilar Torcios, Al-Mu-Tareb, and Gomez Ponce as cases in which this court ordered vacatur after holding a removal order legally defective on a pure question of law, and argued that res judicata should bar the government from bringing in a second proceeding any charge it could have brought in the first. She also noted that nothing prevented the government from filing a motion to reopen at the agency level during the pendency of the appeal, and that it chose instead to rely solely on the single charge that Gomez has now foreclosed.
The panel did not rule from the bench. No decision has issued.