Alcala v. Holder

• Decision Date: 28 April 2009
• Docket Number: No. 04-72295.,No. 04-70983.,04-70983.,04-72295.
• Citation: 563 F.3d 1009
• Parties: Joel ALCALA, Petitioner, v. Eric H. HOLDER, Attorney General, Respondent. Joel Alcala, Petitioner, v. Eric H. Holder, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

563 F.3d 1009

Joel ALCALA, Petitioner, v. Eric H. HOLDER, Attorney General, Respondent.

Joel Alcala, Petitioner, v. Eric H. Holder, Attorney General, Respondent.

No. 04-70983.

No. 04-72295.

United States Court of Appeals, Ninth Circuit.

Argued November 8, 2007.

Submitted April 21, 2009.

Filed April 28, 2009.

Victor D. Nieblas P., Law Office of Victor D. Nieblas Pradis, City of Industry, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General; M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation; Song E. Park, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A70-786-414.

Before: KIM McLANE WARDLAW, CARLOS T. BEA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge Bea; Partial Concurrence and Partial Dissent by Judge Wardlaw.

BEA, Circuit Judge:

We are called on to determine whether this court has any power to act where the government voluntarily dismisses immigration removal proceedings and has not yet obtained a final order of removal.

Alcala petitions for review of two orders of the Board of Immigration Appeals ("BIA"): (1) the BIA's order affirming the Immigration Judge's ("IJ") grant of the government's motion to dismiss removal proceedings so the government could reinstate a prior, expedited order of removal against Alcala (No. 04-70983); and (2) the BIA's order denying Alcala's motion to reopen the dismissed removal proceedings, which motion was based on ineffective assistance of counsel (No. 04-72295).

Our jurisdiction is limited to that granted by Congress. Because the authorizing statute limits our jurisdiction to review of final orders of removal—and because no such order exists in this case—we dismiss Alcala's petitions for review.

I.

Alcala, a native and citizen of Mexico, unlawfully entered the United States on January 20, 1988, without being admitted or paroled. In 1993, Alcala filed an application for asylum;¹ at some point thereafter, he returned to Mexico.² On March 18, 2000, Alcala attempted to return to the United States by using a fraudulent certificate of legal permanent residency (sometimes called a "green card"). That same day, pursuant to 8 U.S.C. § 1225(b)(1), Alcala was placed in expedited removal proceedings and removed from the United States.³ The removal order prohibited Alcala from re-entering the United States for five years. Nevertheless, Alcala again unlawfully re-entered the United States soon thereafter.

In late 2000,⁴ Alcala's 1993 application for asylum was denied, and, on December 1, 2000, he was served with a Notice to Appear for removal proceedings. The notice alleged Alcala entered the United States on or about January 20, 1988, without being admitted or paroled after inspection. The notice did not mention Alcala's expedited removal on March 18, 2000, or his subsequent unlawful re-entry.

At a December 2000 hearing, Alcala, through counsel, admitted the allegations in the Notice to Appear and conceded the charge of removability. The IJ continued proceedings until July 29, 2002 to allow Alcala to file with the INS an amended application for asylum, as well as applications for withholding of removal, protection under the Convention Against Torture ("CAT"), and, in the alternative, voluntary departure. Meanwhile, in February 2001, Alcala married a United States citizen, who then filed a visa petition for an alien relative on Alcala's behalf with the INS. The petition was approved. Alcala then filed with the INS an application for permission to reapply for admission to the United States after removal (Form I-212) and an application for adjustment of status (Form I-485). Once he filed the application for adjustment of status, Alcala abandoned his applications for other forms of relief before the immigration court, including asylum, withholding of removal, and CAT protection.

After several adjournments, the hearing on the merits of Alcala's application for adjustment of status was set for November 19, 2002. Alcala was present with his wife. Alcala's counsel, however, failed to appear. Instead, Alcala's counsel sent an unprepared stand-in attorney who was unfamiliar with Alcala's case. At the hearing, the government introduced into evidence two verified notices of Alcala's prior expedited removal on March 18, 2000. Alcala admitted he had been so removed on March 18, 2000.

The government then orally moved to dismiss the removal proceedings it had commenced in December 2000 so that it might reinstate Alcala's prior March 18, 2000 removal order pursuant to 8 U.S.C. § 1231(a)(5),⁵ based on Alcala's prior removal on March 18, 2000, and subsequent illegal re-entry. Alcala's stand-in attorney presented no argument in opposition to the government's motion, nor did the attorney mention Alcala's pending applications for permission to reapply for admission and for adjustment of status. The IJ granted the government's motion to dismiss the proceedings without adjudicating these applications for relief.

From the IJ's order of dismissal, Alcala's original counsel filed a timely appeal to the BIA, with a four-page brief in support. The brief failed to make any argument about the IJ's dismissal of the proceedings or the IJ's failure to address Alcala's pending applications for permission to reapply for admission and adjustment of status. The BIA affirmed the IJ's decision without opinion.

In our court, now represented by new counsel, Alcala timely filed a petition for review of the BIA's order affirming the IJ's dismissal of removal proceedings, which is now before us (No. 04-70983).

Alcala's new counsel also filed a motion to reopen the November 2002 removal proceedings with the BIA. Alcala claimed ineffective assistance of counsel based on his counsel's actions—mostly inactions—at his removal hearing and appeal. Alcala also contended the IJ abused his discretion by failing to adjudicate his application for adjustment of status before terminating the proceedings.

The BIA denied Alcala's motion to reopen. The BIA held that under the reinstatement statute and implementing regulation, 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 1241.8,⁶ Alcala was subject to reinstatement of his prior order of removal without a hearing before an IJ. The BIA concluded prior counsel "did not provide ineffective assistance of counsel" because Alcala "had no right in the first place" to the removal proceedings and there was no legal argument counsel could have made to avoid their termination. Alcala timely filed a petition for review of this decision (No. 04-72295).

This court consolidated both petitions for review.

II.

At the outset, it is important to be clear about what Alcala does and does not petition this court to review. Alcala has not petitioned for review of the March 18, 2000 removal order. Nor does Alcala petition for review of a BIA order denying a motion to reopen the March 18, 2000 expedited proceedings that resulted in that removal order. Alcala has filed no such motion. Instead, Alcala seeks review of— and to reopen—the November 2002 removal proceedings, proceedings that resulted in no order of removal whatsoever. The only order the November 2002 hearing produced is an order of dismissal. The carefully crafted congressional scheme governing review of decisions of the BIA limits this court's jurisdiction to the review of final orders of removal. See 8 U.S.C. § 1252(a);⁷ Lolong v. Gonzales, 484 F.3d 1173, 1176 (9th Cir.2007) (en banc) ("[O]ur jurisdiction is limited to review of final orders of removal.").⁸ Because an order dismissing removal proceedings is not an order of removal, we lack jurisdiction over Alcala's petitions for review.

That the government may, in the future, decide to reinstate the March 18, 2000 order of removal does not confer jurisdiction upon us. For reasons unknown, the government has not yet reinstated the order. As we have explained previously, "[w]hen an alien subject to removal leaves the country, the removal order is deemed to be executed. If the alien reenters the country illegally, the order may not be executed against him unless it has been `reinstated' by an authorized official." Morales-Izquierdo v. Gonzales, 486 F.3d 484, 487 (9th Cir.2007).

Reinstatement of a prior order of removal is not automatic. Under 8 U.S.C. § 1231(a)(5), if the Attorney General finds an alien has reentered this country illegally after having been removed under an order of expedited removal—as is the case with Alcala—the prior order can be reinstated from its original date. However, the statute's implementing regulation "requires that before a prior order can be reinstated, the immigration officer must (1) obtain the prior order related to the alien, (2) confirm that the alien under consideration is the same alien who was previously removed or voluntarily departed, and (3) confirm that the alien unlawfully reentered the United States." Lin v. Gonzales, 473 F.3d 979, 983(9th Cir.2007) (citing 8 C.F.R. § 241.8(a)).

If these requirements are met, the immigration officer must then provide the alien with written notice of the determination and give the alien an opportunity to make a statement contesting the determination before an immigration officer. 8 C.F.R. § 241.8(b). "Only if the requirements of 8 C.F.R. § 241.8(a) and (b) have been satisfied is the alien removable under the previous order." Lin, 473 F.3d at 983, citing 8 C.F.R. § 241.8(c).

Here, the government has taken no action to fulfill the requirements of 8 C.F.R. § 241.8(a) and (b); indeed, there is no evidence in the record the government has taken any steps whatsoever to reinstate the prior removal order against Alcala. When, and if, the government chooses to reinstate the March 18, 2000 expedited order of removal, Alcala may seek whatever judicial remedies are afforded to an alien in reinstatement proceedings. See Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d...