Molina-Camacho v. Ashcroft, 02-73536.

• Decision Date: 28 December 2004
• Docket Number: No. 02-73536.,02-73536.
• Citation: 393 F.3d 937
• Parties: Lorenzo MOLINA-CAMACHO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

393 F.3d 937

Lorenzo MOLINA-CAMACHO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73536.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 11, 2004.

Filed December 28, 2004.

Walter Rafael Pineda and Charles E. Nichol (argued), Law Office of Walter Rafael Pineda, San Francisco, CA, for the petitioner.

Aviva Poczter, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A75-301-361.

Before: PREGERSON, KOZINSKI, and HAWKINS, Circuit Judges.

HAWKINS, Circuit Judge:

Lorenzo Molina-Camacho ("Molina"), a 40-year-old native and citizen of Mexico, entered this country illegally in 1984. He has a wife and three children, the youngest of whom, Ricardo, is a United States citizen. When the INS initiated removal proceedings against him in 1998, Molina conceded removability, but applied for cancellation of removal.

The Immigration Judge ("IJ") found that Molina qualified under the Immigration and Nationality Act ("INA"), section 240A(b), and granted cancellation. The INS appealed, and one member of the Board of Immigration Appeals ("BIA") reversed and entered an order removing Molina to Mexico.¹ Molina timely petitioned for review.

FACTS AND PROCEDURAL HISTORY

Born in Michoacan, Mexico, Molina was raised in a one-room house with eight other family members and no running water. Unable to find work or pursue an education, Molina left Mexico at the age of 21, entering the United States in June of 1984. Between 1984 and 1998, Molina returned to Mexico three times to visit family and to marry his wife, Rosa. Each visit was for three weeks or less. Rosa eventually joined him in the United States in 1991 with the couple's two oldest children, Jesus and Rosa, both born in Mexico. Ricardo, the youngest, was the only child born in the United States.

Since entering the United States, Molina has worked consistently, paid taxes, and started his own landscaping business. He is able to pay for his children's education and health insurance. Molina testified that if the family were forced to return to Mexico, it would severely impact his children's educational opportunities, and would deprive Ricardo of health insurance, since he is not a Mexican citizen.

After considering Molina's application for cancellation of removal, finding his testimony and supporting documentary evidence credible, the IJ concluded that Molina was statutorily eligible based on "exceptional and extremely unusual hardship" to Ricardo and granted the application. INA § 240A(b)(1)(D); 8 U.S.C. § 1229b(b)(1)(D). The INS appealed to the BIA.

On appeal, the BIA, looking at the same factual record, determined that Molina had not met his statutory burden for cancellation because he had not shown exceptional and extremely unusual hardship "that is substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here." In re Monreal-Aguinaga, 23 I & N Dec. 56, 65 (BIA 2001). Since Molina had conceded that he was removable, the BIA ordered him removed to Mexico.

DISCUSSION

We must determine if the holding of Noriega-Lopez v. Ashcroft, 335 F.3d 874 (9th Cir.2003), applies to invalidate the BIA's issuance of an order of removal in the first instance after reversing an IJ's grant of discretionary relief from removal. Noriega-Lopez involved an IJ determination that the petitioner was not statutorily removable. On appeal to the BIA, the Board reversed and ordered deportation. However, we held that the BIA did not have statutory authority to issue an order of deportation because "the present statute specifies in no uncertain terms that it is IJs who are to issue administrative orders of removal in the first instance. There is no indication in the statute that the BIA may do so." Id. at 884. Noriega-Lopez reserved "for another day" whether this holding applies to "situations in which an IJ determines that an alien is removable (whether based on a concession or after adjudication) but grants relief from removal, and the BIA then rejects the grant of relief." Id. at 884 n. 10.

It is apparent to us that this day has come, and that we are bound to apply the holding of Noriega-Lopez to invalidate the removal order. Because we hold that the BIA acted ultra vires in issuing an order of deportation in the first instance, we must determine whether this holding divests us of jurisdiction to review the merits of Molina's claim under 8 U.S.C. § 1252.

I. Jurisdiction

Molina's case presents an issue somewhat different from the typical issue presented under IIRIRA's permanent rules — whether our jurisdiction is limited or precluded by various "jurisdiction-stripping" provisions in the revised statute. See, e.g., Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 598-99 (9th Cir.2002). Here, we focus on whether a case where no final order of removal has been issued falls outside of the "jurisdiction granting" provision of IIRIRA, 8 U.S.C. § 1252.

Section 1252 mandates when and under what circumstances appellate courts have jurisdiction over final orders of removal. See, e.g., § 1252(a)(1) (providing that "[j]udicial review of a final order of removal" is governed by 28 U.S.C. § 158); § 1252(b)(1) (deadline for filing petition for review based on date of "final order of removal"); § 1252(b)(3)(A) (service on Attorney General in the district "in which the final order of removal ... was entered"); § 1252(d) (prerequisites for review of a "final order of removal").

Whether issuance of the removal order exceeded the BIA's authority, then, goes directly to whether a final order of removal exists which would provide jurisdiction under § 1252. Certainly we have jurisdiction to determine whether we have jurisdiction. Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1208 (9th Cir.2004). We therefore proceed to the merits of the Noriega-Lopez issue.

II. BIA Order of Removal

Noriega-Lopez's holding rests upon at least three grounds that apply here: (1) the plain language of 8 U.S.C. § 1101(a)(47); (2) the structure of the current immigration department and process of judicial review, see 8 U.S.C. § 1252(b)(3)(A); and (3) the consistency of this interpretation with the appellate authority of the BIA, see 8 C.F.R. § 1003.1(d)(1). The same statutory language and structure applicable in Noriega-Lopez apply with equal force to cases like Molina's, in which an IJ finds an applicant removable, but grants discretionary relief from removal which is then appealed by the INS and reversed by the BIA.

The Government concedes that 8 U.S.C. § 1101(a)(47)(A), which defines "order of deportation," now applies to orders of removal as well. This definition contains plain language that deportation orders can be entered only by special inquiry officers — not the BIA, which is specifically charged by the statute with affirming such orders on appeal in order to make them effective.² See Noriega-Lopez, 335 F.3d at 883 ("The BIA (in its sole appearance in the statute) is restricted to affirming such orders, not issuing them in the first instance."). As we pointed out in Noriega-Lopez, regulations in effect at the time Congress passed 8 U.S.C. § 1101(a)(47) defined "immigration judge" to mean a "special inquiry officer and may be used interchangeably with the term special inquiry officer wherever it appears in this chapter." 8 C.F.R. § 1.1(l) (1996).

Moreover, nothing in the regulations enumerating the powers of the BIA indicates that the scope of those powers goes beyond appellate review of immigration judges' decisions and other "administrative adjudications." 8 C.F.R. § 1003.1(d)(1) ("The Board shall function as an appellate body charged with the review of those administrative adjudications under the Act that the Attorney General may by regulation assign to it."); see also § 1003.1(b)(2) (appellate jurisdiction over decisions of immigration judges in deportation cases).

This is in contrast to the regulations enumerating the powers and authority of immigration judges. See id. § 1240.1(a)(1)(i) (authority to issue order of removal pursuant to INA § 240(c)(1)(A)); id. § 1240.12(c) ("The order of the immigration judge shall direct the respondent's removal, or the termination of the proceedings, or such other disposition of the case as may be appropriate."); id. § 1240.13(d) ("If the immigration judge decides that the respondent is removable and orders the respondent to be removed, the immigration judge shall advise the respondent of such decision...."); see also id. § 1241.1 ("An order of removal made by the immigration judge... shall become final [inter alia] [u]pon dismissal of an appeal by the Board of Immigration Appeals;[or][u]pon expiration of the time allotted for an appeal if the respondent does not file an appeal within that time." (emphasis added)).

The Government argues that the present case is distinguishable from Noriega-Lopez because, in that case, the IJ determined that petitioner was not removable. In contrast, the Government argues, a finding that an applicant is removable, such as the IJ's finding in this case, is essentially equivalent to an "order" of removability:

Here the special inquiry officer (immigration judge) determined that Petitioner was removable, and the Board concurred in that uncontested finding on appeal. See also 8 U.S.C. § 1101(a)(47)(B) (such order "shall become final upon... a determination by the Board of Immigration Appeals affirming such order; or ... expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals").

Accepting the Government's interpretation of the interplay between a finding of removability and an actual order of removal would render the IJ's discretionary ability to literally "cancel removal" meaningless, because a finding of removability in the first...