NUNEZ VILLAREAL v. SESSIONS III (2018)

MEMORANDUM ***

Petitioner Ancelmo Nunez-Villareal, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an immigration judge’s (IJ) decision to terminate proceedings as improvidently begun. Our jurisdiction is governed by 8 U.S.C. § 1252. Although jurisdiction is at issue, this Court “retain[s] jurisdiction to decide our own jurisdiction,” and such a review is de novo. Bolanos v. Holder, 734 F.3d 875, 876 (9th Cir. 2013). “We review de novo the BIA’s determination of legal questions, but we review the BIA’s findings of fact for substantial evidence and uphold them unless the evidence compels a contrary result.” Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We lack jurisdiction and dismiss the petition for review.

At the outset, we must recognize that “[t]he 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) (citing 8 U.S.C. § 1252(a) ). Here, the BIA upheld the IJ’s decision to terminate proceedings as improvidently begun because Petitioner was subject to an unexecuted Order of Exclusion. As a result, Nunez-Villareal is not appealing from a final order of removal or from a reinstatement of removal order. Rather, he appeals from a dismissal, and “[b]ecause an order dismissing removal proceedings is not an order of removal, we lack jurisdiction over [Nunez-Villareal’s] petition[ ] for review.” Id.

Nunez-Villareal’s arguments that (1) the IJ erred in determining he never self-deported, and (2) his due process rights were violated when he was not permitted to testify at a hearing, whatever their merit, do not affect the limits of our jurisdiction.

PETITION FOR REVIEW DISMISSED.