Sosa-Valenzuela v. Gonzales

• Decision Date: 01 May 2007
• Docket Number: No. 05-9582.,05-9582.
• Citation: 483 F.3d 1140
• Parties: Baltazar Abel SOSA-VALENZUELA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

483 F.3d 1140

Baltazar Abel SOSA-VALENZUELA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-9582.

United States Court of Appeals, Tenth Circuit.

May 1, 2007.

Laura L. Lichter, Lichter & Associates, P.C., Denver, CO, for Petitioner.

Jennifer L. Lightbody, Attorney (Stephen J. Flynn, Senior Litigation Counsel, with her on the briefs) Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Respondent.

Before O'BRIEN, EBEL, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Baltazar Abel Sosa-Valenzuela, a lawful permanent resident, obtained a waiver from removal after the Department of Homeland Security (DHS) sought to have him deported to his native Mexico. The Board of Immigration Appeals (BIA) concluded that the waiver should not have been granted and ordered Sosa-Valenzuela deported. This appeal raises two issues that have yet to be resolved in our Circuit: (1) what constitutes a "final order of removal" for purposes of appellate jurisdiction under 8 U.S.C. § 1252(a)(1) and § 1101(a)(47)(A); and (2) whether the BIA has the independent authority to issue a final order of removal in the absence of a removal order or a finding of deportability by an immigration judge.

We conclude (1) an immigration judge must first either issue an order of removal or make a finding of deportability to confer us with appellate jurisdiction; and (2) the BIA does not have the independent statutory authority to issue an order of removal in the first instance.

Since the record in this case discloses no finding of deportability by the immigration judge, we are left without a reviewable final order of removal. Consequently, we lack jurisdiction under 8 U.S.C. § 1252, and, accordingly DISMISS the appeal and REMAND to the BIA for further proceedings.

I. Background

Baltazar Sosa-Valenzuela illegally entered the United States from Mexico in 1981 at the age of three. He became a lawful permanent resident in June of 1992 as part of an amnesty program implemented by Congress in its 1986 immigration reform legislation.

In 1994, at age 16, Sosa-Valenzuela pleaded guilty in Colorado of attempt to commit murder in the second degree and unlawful possession of a firearm by a juvenile. In 1997, as a result of a successful post-conviction petition based on the ineffectiveness of counsel in the earlier plea dealings, the court amended Sosa-Valenzuela's guilty plea to first degree assault and a crime of violence with a deadly weapon. The amended plea, although entered on December 15, 1997, was dated nunc pro tunc, December 19, 1994. Based on Sosa-Valenzuela's felony assault plea, DHS¹ brought deportation proceedings in February of 1997.

In response to the deportation proceedings, Sosa-Valenzuela petitioned for a waiver from removal under the provisions of § 212(c) of the Immigration and Nationality Act (INA). Before it was repealed in 1996, § 212(c) authorized the Attorney General to grant waivers from removal to aliens who met certain criteria.² Sosa-Valenzuela argued that by virtue of the state court's nunc pro tunc order, he was eligible for a waiver because he met the residency requirements of § 212 and his felony plea occurred before § 212(c) was repealed in 1996.

After an evidentiary hearing, the immigration judge (IJ) granted Sosa-Valenzuela's waiver in a minute order dated October 12, 2004. The order only stated that "[Sosa-Valenzuela] be granted a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act," R. at 77; it made no explicit finding of deportability.³ DHS subsequently asked the IJ to reconsider his order, contending that Sosa-Valenzuela was no longer eligible for the § 212(c) waiver because of new regulations adopted on September 28, 2004 and that the nunc pro tunc order was invalid.⁴

The IJ denied the motion to reconsider. He found the nunc pro tunc order was valid and not designed to defeat the repeal of § 212(c), so the new regulations did not apply. DHS appealed to the BIA, which concluded Sosa-Valenzuela was not eligible for waiver because of an intervening interpretation of § 212. In its decision reversing the IJ, the BIA ordered Sosa-Valenzuela deported immediately to Mexico.

Sosa-Valenzuela appealed, and we stayed his removal pending appeal.

II. Discussion

While this case presents a number of issues on appeal, we must first determine whether we have jurisdiction to consider Sosa-Valenzuela's claims. We conclude that we do not.

A. Jurisdictional Framework for Reviewing Removal Proceedings

Our jurisdiction to review removal proceedings requires a "final order of removal." Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir.2006); 8 U.S.C. § 1252(a).

The Code does not expressly define an order of removal, but defines an "order of deportation"⁵ as "the order . . . concluding that the alien is deportable or ordering deportation." 8 U.S.C. § 1101(a)(47)(A). An order of deportation becomes "final" when (1) the BIA affirms the order on appeal, or (2) the period for seeking BIA review has expired. 8 U.S.C. § 1101(a)(47)(B).⁶

Both parties contend that we have jurisdiction over this appeal. Although DHS agrees we have no jurisdiction to review the appeal absent a final order of removal, it argues one exists. DHS points to two sources for a final order under 8 U.S.C. § 1252(a)(1): (1) the IJ's two orders granting and affirming the § 212(c) waiver; and (2) the BIA order of removal of Sosa-Valenzuela after it ruled on appeal. Sosa-Valenzuela argues, in contrast, that jurisdiction can be found even without a final order of removal under § 1252(a)(2)(D), which allows judicial review of "constitutional claims or questions of law."

We turn to each argument.

B. Final Order of Removal

DHS contends that the IJ's grant of a § 212(c) waiver, or alternatively, the BIA's removal order, constitute a final order of removal. We conclude they do not.

1. The IJ's § 212(c) Orders.

DHS's first argument is that the IJ's § 212(c) waiver granted on October 12, 2004 (and its November 30, 2004 decision reaffirming the waiver) suffice as an order of removal since they necessarily "conclud[e] that the alien is deportable" under § 1101(a)(47)(A). Resp. Br. at 25. The gist of its argument is that the IJ would not grant a waiver of deportation unless he first concluded the alien was removable.

The problem with this contention is that nowhere, in either granting the waiver or reaffirming it, does the IJ make an express finding that Sosa-Valenzuela was deportable or order him deported. Instead, the IJ's orders merely approve a waiver of inadmissibility under § 212(c) of the INA.⁷ While it is likely the IJ made or intended to make such a finding, the record we have discloses none. The BIA has not identified anywhere in the proceedings (nor do we have the transcript from the § 212 proceedings) where a finding of deportability was made, and neither order provides an express basis for our jurisdiction.

In sum, the IJ's § 212(c) waiver determination on this record is not — by itself — a substitute for a finding of deportability under § 1101(a)(47). Without a showing that the IJ in fact reached the question of deportability, we cannot assume such a finding and we lack jurisdiction.

2. The BIA's Order on Appeal.

Even without an express finding of deportability from the IJ, DHS also contends the BIA's removal order itself confers jurisdiction.⁸ We disagree.

Statutory Scheme. As a threshold matter, the statutory scheme does not grant the BIA the independent authority to conduct removal proceedings. Removal proceedings are authorized by statute and in the first instance are conducted only by immigration judges.

Removal proceedings are governed by § 1229a. The plain language of the statute points to the primary role of the IJ in determining removability. First, it provides that "[an IJ] shall conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a(a)(1) (emphasis added). It then adds "[u]nless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been admitted, removed from the United States." Id. § 1229a(a)(3) (emphasis added). Finally, and even more explicitly, § 1229a(c)(1)(A) provides that "the [IJ] shall decide whether an alien is removable from the United States." The statute thus explicitly vests the power to conduct removal proceedings with the IJ in the first instance. The limited nature of the BIA's powers on the first question of removability naturally follows from its position as an "appellate body" with the attending limitations on its "ability to engage in fact-finding," which under the statutory scheme has been left to the immigration judges. See Torres de la Cruz v. Maurer, 483 F.3d 1013, No. 06-9515, 2007 WL 970166 (10th Cir. April 3, 2007).

The only statutory mention of the BIA in the removal process is found in 8 U.S.C. § 1101(a)(47), which provides an order of removal becomes "final" only "upon the earlier" of (1) "a determination by the Board of Immigration Appeals affirming such order"; or (2) "the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals." 8 U.S.C. § 1101(a)(47). The removal process thus contemplates a sequential proceeding where the determination of deportability is made by immigration judges and then reviewed by the BIA. See Noriega-Lopez v. Ashcroft, 335 F.3d 874, 883-84 (9th Cir. 2003) (finding that the statutes and regulations do not allow the BIA to issue a final order of removal in the absence of such an order by the IJ).

In short, if Congress intended for the BIA to determine deportability in the first instance, it would have said so, and extended the authority to conduct removal proceedings to the BIA. The statute does not so...