Galindo–romero v. Eric H. Holder Jr.
| Citation | 640 F.3d 873,11 Cal. Daily Op. Serv. 5486,2011 Daily Journal D.A.R. 6563 |
| Decision Date | 09 May 2011 |
| Docket Number | No. 05–73517.,05–73517. |
| Parties | Pedro GALINDO–ROMERO, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
OPINION TEXT STARTS HERE
Professor Peter Afrasiabi, Professor Kathryn M. Davis, and Paul Alarcon (Student), Chapman University School of Law, Ninth Circuit Appellate Litigation Clinic, Orange, CA, for the petitioner.Anthony P. Nicastro, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A075–501–548.Before: RICHARD R. CLIFTON and JAY S. BYBEE, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.*
The panel has unanimously decided to amend its opinion, available at 621 F.3d 924, filed on September 2, 2010.
On page 928, delete footnote 4.
On page 930, delete footnote 5.
With these amendments, the panel has voted to deny the petition for rehearing and petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc, filed January 13, 2011, are hereby DENIED. No future petitions for rehearing will be entertained. General Order 5.3(a).
Petitioner Pedro Galindo–Romero (“Galindo”) seeks review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an Immigration Judge's (“IJ”) decision terminating his formal removal proceedings. The BIA and IJ held that they lacked jurisdiction over Galindo's removal proceedings, including his application for cancellation of removal, because of an un-reinstated expedited removal order previously issued against Galindo. Galindo argues that the agency's decision to relinquish jurisdiction based on this expedited removal order was error. However, we conclude that we lack jurisdiction to decide the merits of Galindo's petition for review for a different reason: because the decisions of the BIA and IJ resulted in no final order of removal. Accordingly, we dismiss Galindo's petition for review.
Galindo is a native and citizen of Mexico. In 1987, he entered the United States illegally and settled in Texas. On March 2, 1998, the former Immigration and Naturalization Service (“INS”) issued a Notice to Appear charging Galindo with removability as an alien present in the United States without having been admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). He was placed in formal removal proceedings and ordered to appear before an IJ.
On June 26, 1998, Galindo appeared before an IJ, admitted the factual allegations in the Notice to Appear, conceded removability, and sought cancellation of removal or, in the alternative, voluntary departure. Galindo asked for additional time to explore his eligibility for cancellation of removal, and the hearing adjourned. On February 11, 2000, Galindo filed an application for cancellation of removal. Two continuances followed, and Galindo's next hearing was set for March 26, 2001.
In April 2000, while still in removal proceedings with a pending cancellation of removal application, Galindo applied to the former INS for advance parole to leave the United States, claiming that his father, who lived in Mexico at that time, was ill. The INS denied his advance parole application, but Galindo went to Mexico nonetheless. On April 18, 2000, Galindo attempted to reenter the United States by applying for admission at the San Ysidro, California, port of entry, explaining to the immigration officer that he had a pending application for cancellation of removal with an IJ. The immigration officer denied Galindo entry.
On April 23, 2000, Galindo again attempted to reenter the United States, this time by telling the border patrol, falsely, that he was a United States citizen. Again, an immigration officer found Galindo inadmissible and denied his admission application. In support of this denial, the immigration officer found that Galindo had falsely represented himself to be a citizen of the United States, in violation of 8 U.S.C. § 1182(a)(6)(C)(ii), and that he was not, at the time of filing his admission application, in possession of a valid entry document, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). Accordingly, the immigration officer issued an expedited removal order pursuant to 8 U.S.C. § 1225(b), and Galindo was summarily removed from the United States.1
At some point, Galindo again entered the United States illegally. On March 26, 2001, Galindo appeared before the IJ in his continued removal proceedings and sought to pursue his previously filed application for cancellation of removal. The government provided the IJ with the April 23, 2000, expedited removal order, which the government had not yet reinstated. 2
On January 6, 2004, after several continuances, the IJ issued an oral decision terminating Galindo's removal proceedings. The IJ held that she had “ha[d] no further jurisdiction to hear [Galindo's] claim on his cancellation of removal,” because the INS's April 23, 2000, expedited removal order “t[ook] preference over the Notice to Appear” and the earlier removal proceedings that had been pending before the IJ. The IJ noted that, although the INS had not yet reinstated the expedited removal order following Galindo's most recent return to the United States, “that order would still be valid and outstanding and could, in fact, be reinstated” by the INS. Although the IJ terminated removal proceedings, she did not order Galindo removed, agreeing with Galindo's counsel that she could not “give [Galindo] a removal order and deny the [cancellation of removal] application when there [was] an expedited removal order.”
Galindo appealed to the BIA, challenging the IJ's termination of proceedings. The BIA dismissed, holding that Galindo's “appeal relate[d] to matters outside [its] jurisdiction” and providing three reasons for that holding: (1) under 8 C.F.R. § 235.3(b)(2)(ii), the expedited removal order itself was not subject to appellate review by the BIA; (2) under 8 U.S.C. § 1231(a)(5), Galindo was ineligible to pursue any kind of relief from removal, including cancellation of removal, because his “expedited removal order [wa]s subject to reinstatement”; and (3) the BIA “ha[d] no authority to pass judgment on the constitutionality of the Immigration and Nationality Act” or the regulations implementing it. Galindo timely appealed to this court.
Galindo argues that the agency erred in terminating his formal removal proceedings. Before we may decide the merits of this argument, we must determine whether the Immigration and Nationality Act (“INA”) empowers us with jurisdiction over Galindo's petition for review, an issue we determine de novo. See Luu–Le v. INS, 224 F.3d 911, 914 (9th Cir.2000).3
“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.” Alcala v. Holder, 563 F.3d 1009, 1013 (9th Cir.2009) (emphasis added) (citing 8 U.S.C. § 1252(a)); see also 8 U.S.C. § 1252(b)(9) (). “The term ‘order of [removal]’ means the [administrative] order ... concluding that the alien is [removable] or ordering [removal].” 8 U.S.C. § 1101(a)(47)(A).
We lack jurisdiction to review the agency's termination of Galindo's formal removal proceedings because the decisions of the BIA and IJ resulted in no order of removal at all. The agency is unable to remove Galindo from the United States on the basis of either of these decisions, and may remove him only if the Department of Homeland Security either (1) initiates new formal removal proceedings with service of a new Notice to Appear (which it has not done); or (2) reinstates the previous expedited order of removal (which it has not done). Crucially, “[r]einstatement of a prior order of removal is not automatic.” Alcala, 563 F.3d at 1013. Rather, the agency must comply with the requirements set forth in two statutory provisions in order to reinstate a prior order of removal. First, the agency “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)). Second, the agency “must provide the alien with written notice of his or her determination and give the alien an opportunity to make a statement contesting the determination.” Id. (citing 8 C.F.R. § 241.8(b)). In this case, the agency has taken none of these actions, and thus no reinstatement—and, therefore, no order of removal—has occurred.
In arguing that we have jurisdiction over his petition for review, Galindo relies entirely on our en banc decision in Lolong v. Gonzales, 484 F.3d 1173 (9th Cir.2007) (en banc). In Lolong, an alien placed in removal proceedings conceded removability, and an IJ held that she was removable but granted her application for asylum. Id. at 1175. The INS appealed, and the BIA vacated the IJ's decision and denied Lolong's application for asylum, but “rather than remanding Lolong's case to the IJ for entry of an order of removal, the BIA itself granted her voluntary departure.” Id. at 1176. Lolong petitioned for review with this court. Id. at 1175.
On appeal, we rejected the government's argument that, because the BIA did not enter any order of removal, and in fact “lacks statutory authority to enter orders of removal,” id. at 1176, we lacked jurisdiction to review the...
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