Coria v. Garland

• Docket Number: 22-970
• Decision Date: 19 March 2024
• Citation: Coria v. Garland, 96 F.4th 1192 (9th Cir. 2024)
• Parties: Silvia Tapia CORIA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

96 F.4th 1192

Silvia Tapia CORIA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-970

United States Court of Appeals, Ninth Circuit

Argued and Submitted October 20, 2023 Phoenix, Arizona

Filed March 19, 2024

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX0-641

Christopher J. Stender (argued), Federal Immigration Counselors AZ PC, Phoenix, Arizona, for Petitioner.

Yanal H. Yousef (argued) and Kristen H. Blosser, Trial Attorneys; Anthony P. Nicastro, Assistant Director; Brian Boynton, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Sandra S. Ikuta, Bridget S. Bade, and Daniel A. Bress, Circuit Judges.

OPINION

BRESS, Circuit Judge:

Under the so-called "criminal alien bar," 8 U.S.C. § 1252(a)(2)(C), "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a [covered] criminal offense." Statutorily exempted from this jurisdictional prohibition are constitutional claims or questions of law; those we do review. See id. § 1252(a)(2)(D). We have also implied a further exception: notwithstanding a criminal conviction that would otherwise bar judicial review under § 1252(a)(2)(C), we may review a final order of removal provided that the Board of Immigration Appeals (BIA) or Immigration Judge (IJ) denied relief "on the merits," rather than on the basis of the criminal offense that triggered § 1252(a)(2)(C). Under these circumstances, we can review the agency's factual findings. In our circuit, this is sometimes called the "on the merits" exception to § 1252(a)(2)(C).

The petitioner in this case sustained a qualifying conviction under § 1252(a)(2)(C), and she does not advance any constitutional claim or question of law. Although she would meet the "on the merits" exception, thereby enabling our review of the agency's factual determinations, the government argues that a recent Supreme Court decision, Nasrallah v. Barr, 590 U.S. 573, 140 S. Ct. 1683, 207 L.Ed.2d 111 (2020), abrogates the "on the merits" exception. Nasrallah defined the contours of "final order of removal" in § 1252(a)(2)(C), explaining that it includes any denial of relief that "merges with" the final order of removal. Nasrallah further made clear that when § 1252(a)(2)(C) applies, "the court of appeals may not review factual challenges to a final order of removal." Id. at 1690 (emphasis in original). We agree with the government that our "on the merits" exception is no longer valid because "the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority" in Nasrallah. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

In this opinion, we lay out the legal framework that Nasrallah ordains for determining when the criminal alien bar precludes judicial review of agency factual findings in a petition for review of a final order of removal. Applying that framework to this case, we hold that because the petitioner challenges the denial of relief that merges with the final order of removal, we lack jurisdiction under § 1252(a)(2)(C) to review petitioner's factual challenges—the only type of challenge she raises. We accordingly dismiss the petition for review.

I

The petitioner in this case is Silvia Tapia Coria, a native and citizen of Mexico. She arrived in the United States on January 1, 1982, becoming a lawful permanent resident on December 31, 1990. In 1999, she was convicted of possession for sale of methamphetamine, a controlled substance, in violation of California Health and Safety Code § 11378. She was sentenced to 180 days of imprisonment and three years of probation. Following her sentence, Tapia Coria continued to reside in the United States.

Sixteen years later, in September 2015, and upon return from a trip to Mexico, Tapia Coria sought admission into the United States as a returning lawful permanent resident at the Phoenix, Arizona port of entry. Because she was on a watch list due to her drug conviction, Tapia Coria was referred to secondary inspection and paroled into the United States on a deferred basis, pending further investigation.

In November 2015, the Department of Homeland Security (DHS) initiated removal proceedings against Tapia Coria. The Notice to Appear charged her as an inadmissible alien subject to removal because she was an alien convicted of a controlled substance offense, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and an alien whom "the consular officer or the Attorney General knows or has reason to believe is or has been an illicit trafficker in any controlled substance," id. § 1182(a)(2)(C)(i).

Tapia Coria appeared before an immigration judge (IJ) in February 2016. She denied both charges of inadmissibility but admitted all other factual allegations in the Notice to Appear. On May 24, 2017, Tapia Coria filed an application for cancellation of removal, later moving to terminate the removal proceedings. In March 2021, the IJ sustained both charges of removability and denied relief on all grounds. The IJ thus ordered Tapia Coria removed to Mexico.

Tapia Coria appealed the IJ's decision to the BIA. As relevant to her current petition for review, Tapia Coria requested remand to the IJ on the new theory that she was eligible to become a derivative beneficiary of her husband's pending U visa application. 8 U.S.C. § 1101(a)(15)(U). U visas are made available to certain aliens who are victims of criminal activity in the United States and who come forward to report it; certain family members of the applicant are also eligible for derivative U visa status. See Medina Tovar v. Zuchowski, 982 F.3d 631, 633-34 (9th Cir. 2020) (en banc); 8 U.S.C. § 1101(a)(15)(U).

Tapia Coria attached to her motion to remand documents showing that her husband had filed a U visa application in March 2018, and that she filed an application to be a derivative beneficiary in August 2021. Because of her inadmissibility charges, Tapia Coria was also required to apply for an inadmissibility waiver, which she submitted in connection with the U visa request. 8 U.S.C. § 1182(h). While her appeal was pending before the BIA, Tapia Coria moved for administrative closure of her removal proceedings, repeating the same arguments about the U visa.

The BIA dismissed Tapia Coria's appeal and denied her motions for remand and administrative closure. The BIA held that Tapia Coria's methamphetamine conviction rendered her removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II). Responding to Tapia Coria's argument that she was now seeking to be a derivative beneficiary of her husband's U visa application, the BIA found it speculative whether Tapia Coria would receive this relief: "The uncertainty concerning when relief will become available based on the recent filing, and the likelihood of success diminished by the need for an inadmissibility waiver, weighs heavily against a further continuance and a further delay of [Tapia Coria's] proceedings." The BIA thus denied Tapia Coria's motion to remand. It denied her motion for administrative closure for the same reasons: "Given the speculative nature as to when [Tapia Coria's] U visa may be adjudicated, and the likelihood of success diminished by the need for an inadmissibility waiver, we are not persuaded the proceedings should be administratively closed."¹

Tapia Coria timely petitioned for review of the BIA's denial of her motions for remand and administrative closure. But "[b]efore we reach the merits of [Tapia Coria's] claim[s], we must determine whether we have jurisdiction to review the BIA's denial" of her motions. Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1116-17 (9th Cir. 2009).

II

Under 8 U.S.C. § 1252(a)(2)(C), "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a [covered] criminal offense." This provision is sometimes referred to as the "criminal alien bar." See, e.g., Kucana v. Holder, 558 U.S. 233, 246, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010); Silva v. Garland, 993 F.3d 705, 712 n.4 (9th Cir. 2021).

In this case, it is undisputed that Tapia Coria's California conviction for methamphetamine possession for sale triggers § 1252(a)(2)(C). Section 1252(a)(2)(C) applies to "a criminal offense covered in section 1182(a)(2)," and Tapia Coria's methamphetamine conviction is an offense under § 1182(a)(2)(A)(i)(II). See also United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1152-54 (9th Cir. 2020) (holding that California's definition of methamphetamine is a categorical match to the federal definition). If Tapia Coria asks us to review a final order of removal, we lack jurisdiction under § 1252(a)(2)(C) unless an exception applies.

We hold that under the criminal alien bar, we lack jurisdiction to consider Tapia Coria's petition for review. Our analysis proceeds in several steps. In Part II.A, we first conclude, using the framework of Nasrallah v. Barr, 590 U.S. 573, 140 S. Ct. 1683, 207 L.Ed.2d 111 (2020), that Tapia Coria is seeking review of a "final order of removal," thus implicating § 1252(a)(2)(C). In Part II.B, we examine Tapia Coria's petition under existing circuit precedent and conclude that although Tapia Coria does not raise any constitutional claim or question of law under § 1252(a)(2)(D), we would have jurisdiction to review her factual challenges to the BIA's denial of relief under our circuit's "on the merits" exception to § 1252(a)(2)(C). In Part II.C, however, we conclude that the "on the merits" exception is clearly irreconcilable with the reasoning and theory of Nasrallah. Thus, the "on the merits" exception can no longer govern. In Part II.D, we lay out the new, post-Nasrallah framework governing the criminal alien bar and recap how that framework applies to this case.

A

The first question we...