MIGUEL LOPEZ LUVIAN V. MERRICK GARLAND, No. 18-73286 (9th Cir. 2022)
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Petitioner was ordered excluded in 1996 and then unlawfully re-entered the United States. In 2007, DHS served Petitioner with a Notice to Appear (NTA) in immigration court but later moved to dismiss the NTA as improvidently issued. DHS sought dismissal because it could reinstate Petitioner’s 1996 removal order through the more streamlined reinstatement process. The immigration judge denied DHS’s motions and granted Petitioner’s cancellation of removal, but the BIA granted DHS’s motion to dismiss and terminated removal proceedings. DHS later issued an order reinstating Petitioner’s 1996 order, and he filed a petition for review but did not challenge the reinstatement decision itself. Instead, he challenged the BIA’s earlier decision terminating his removal proceedings.
The Ninth Circuit dismissed Petitioner’s petitioner for lack of jurisdiction. The court held that an immigration petitioner who is subject to a reinstated order of removal may not challenge an earlier decision terminating separate removal proceedings. Because Petitioner’s petition challenged only the BIA’s decision terminating his removal proceedings, which did not result in a final removal order, the court concluded that it lacked jurisdiction to consider the merits of his petition.
The court relied on Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009), and Galindo-Romero v. Holder, 640 F.3d 873 (9th Cir. 2011), where petitioners sought review of BIA decisions terminating removal proceedings, and this court concluded that it lacked jurisdiction because 8 U.S.C. Section 1252(a) limits the court’s jurisdiction to review of “final orders of removal,” and no such orders existed in those cases.
Court Description: Immigration. Dismissing for lack of jurisdiction Miguel Lopez Luvian’s petition for review of an order of the Department of Homeland Security (DHS) reinstating his prior removal order, the panel held that an immigration petitioner who is subject to a reinstated order of removal may not challenge an earlier decision terminating separate removal proceedings. Lopez was ordered excluded in 1996 and then unlawfully reentered the United States. In 2007, DHS served Lopez with a Notice to Appear (NTA) in immigration court, but later moved to dismiss the NTA as improvidently issued. DHS sought dismissal because it could reinstate Lopez’s 1996 removal order through the more streamlined reinstatement process. The immigration judge denied DHS’s motions and granted Lopez cancellation of removal, but the BIA granted DHS’s motion to dismiss and terminated removal proceedings. DHS later issued an order reinstating Lopez’s 1996 order, and he filed a petition for review, but did not challenge the reinstatement decision itself. Instead, he challenged the BIA’s earlier decision terminating his removal proceedings. Because Lopez’s petition challenged only the BIA’s decision terminating his removal proceedings, which did not result in a final removal order, the panel concluded that it lacked jurisdiction to consider the merits of his petition. The LOPEZ LUVIAN V. GARLAND 3 panel relied on Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009), and Galindo-Romero v. Holder, 640 F.3d 873 (9th Cir. 2011), where petitioners sought review of BIA decisions terminating removal proceedings, and this court concluded that it lacked jurisdiction because 8 U.S.C. § 1252(a) limits the court’s jurisdiction to review of “final orders of removal,” and no such orders existed in those cases. Lopez argued that the termination of his proceedings was effectively the “but for” cause of his reinstatement order because the termination set the stage for the government to then issue a reinstatement order. The panel rejected that contention, observing that the court turned down that same line of reasoning in Alcala and Galindo-Romero and explaining that it does not make sense to think of removal orders as “contingent” upon the termination of removal proceedings because the government must make a separate, independent showing to secure reinstatement. The panel found additional support for its conclusion in the Tenth Circuit’s decision in Aguilar-Aguilar v. Napolitano, 700 F.3d 1238 (10th Cir. 2012), the only other decision the panel identified that approximated the situation here.
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