CORDES v. Tom Ridge;  Nancy Alcantar, Respondents-Appellees.

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United States Court of Appeals,Ninth Circuit.

Patricia Ann CORDES, Petitioner-Appellant, v. Michael B. MUKASEY,* Attorney General;  Defendant-Appellant. Tom Ridge;  Nancy Alcantar, Respondents-Appellees.

No. 04-15988.

Decided: February 25, 2008

Before:  WARREN J. FERGUSON, JOHN T. NOONAN, and PAMELA ANN RYMER, Circuit Judges. Jagdip Singh Sekhon, Esq., Sekhon & Sekhon, PLC, San Francisco, CA, for Petitioner-Appellant. USSAC-office of the U.S. Attorney, Sacramento, CA, Marianne A. Pansa, Esq., USF-Office of the U.S. Attorney, Fresno, CA, Alison R. Drucker, Esq., DOJ-U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Defendant-Appellant/Respondents-Appellees.

ORDER

On June 30, 2005, the BIA sua sponte reopened the underlying proceeding, vacated its order of removal, and remanded the matter to the Immigration Judge.   This stripped us of jurisdiction to enter our opinion, filed on August 24, 2005.   See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir.2002).   This case is different from Lolong v. Gonzales, 484 F.3d 1173, 1177 (9th Cir.2007), because, here, the BIA remanded to the IJ for “further proceedings” and to enter a “new decision” regarding removal, whereas in Lolong, “[t]he BIA reversed, but rather than remanding Lolong's case to the IJ for entry of an order of removal, the BIA itself granted her voluntary departure.”   The remand for further proceedings is what caused us to lose jurisdiction.   Otherwise, this court and the IJ would both have been considering the same thing at the same time:  Cordes's removal.   Although we didn't know it, this happened before the panel published its opinion. Accordingly, we now vacate our August 24, 2005 opinion and deny the pending petition for rehearing en banc as moot.

Because the majority's decision to vacate our opinion directly contradicts Lolong v. Gonzales, I must dissent.  484 F.3d 1173 (2007) (en banc).   This Court's recent unanimous 1 en banc opinion in Lolong compels the conclusion that we retain jurisdiction over this case.  Lolong made clear that the order of deportation entered by the Immigration Judge (“IJ”) who initially heard Cordes's case remains in effect, providing us with a final agency decision to review.  Id. at 1178.   The majority distinguishes Lolong based on an inconsequential factual issue:  the BIA's remand to the IJ. There is no meaningful distinction between Lolong and this case, and the majority's attempt to fashion one brings it squarely into conflict with the ruling of the en banc court.

In 2001, an IJ found Cordes removable, but granted discretionary relief from removal under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed 1996).   In 2003, the BIA explicitly affirmed the finding of deportability, but reversed the grant of relief.

In 2005, the BIA issued an order vacating its 2003 order “insofar as it entered an order of removal against the respondent.”   The BIA acted pursuant to our 2004 decision in Molina-Camacho v. Ashcroft, which held that the agency lacked authority to issue final orders of removal.  393 F.3d 937, 941 (9th Cir.2004).   Under Molina-Camacho, the BIA's removal order was a “legal nullity,” which meant that there was no final agency order for this Court to review.  Id. at 941-42.   The BIA remanded Cordes's case to the IJ for “entry of a new decision consistent with Molina-Camacho and the prior decision of the Board.”

In Lolong v. Gonzales, the en banc court explicitly overruled Molina-Camacho, stating, “[N]othing in [the INA] mandates the result [the court] reached in Molina-Camacho.”  Id. at 1177. The court explained that in order for an IJ to grant discretionary relief from removal, the IJ must first determine that the noncitizen is removable.  Id. “[T]his determination by the IJ constitutes an order of deportation.”  Id. If the BIA subsequently reverses the IJ's grant of relief, it “simply reinstates that order of removal that has already been entered by the IJ and that would have taken effect but for the IJ's subsequent cancellation of removal.”  Id. (internal citations and punctuation omitted).   Therefore, the court concluded, “[w]e ․ have jurisdiction to consider [a] petition for review of the BIA's reinstatement of that order.”  Id. at 1178 (citing 8 U.S.C. § 1101(a)(47)).

Lolong's analysis makes clear that a final order of removal still stands in this case, giving us jurisdiction over Cordes's appeal.   The IJ's initial decision constituted a valid removal order, which was reaffirmed in 2003 when the BIA reversed the IJ's grant of relief.   Pursuant to Lolong, the BIA's 2003 decision “eliminated impediments to removal and effected the original removal order, ․ and the surviving order of removal was both final and valid and therefore reviewable under 8 U.S.C. § 1252(a).”  484 F.3d at 1178 (internal punctuation omitted).   The BIA's 2005 order vacated its 2003 order only “insofar as it entered an order of removal against the respondent.”   The BIA implicitly left in place the portion of its 2003 order reversing the IJ's grant of relief from removal.   In essence, the BIA remanded so that the IJ could issue the removal order, which the BIA believed it could not do (per Molina-Camacho ) and the IJ had not already done.   With the benefit of Lolong, 484 F.3d at 1177-78, we now understand that the removal order already existed.   This court already had jurisdiction, regardless of whether or not the BIA's order explicitly ordered Cordes removed.

The majority attempts to distinguish Lolong because of a factual difference:  in Lolong, the BIA vacated the IJ's order and granted voluntary removal, whereas here, the BIA vacated its own removal order and remanded to the IJ for further proceedings.   This distinction has no bearing on the applicability of Lolong's analysis to this case.   As in Lolong, the IJ in this case issued an order of removal, coupled with a grant of relief;  again, as in Lolong, the BIA reversed the grant of relief, reinstating the initial removal order.

While Lolong did not involve a subsequent order by the BIA vacating its removal order, in this case the BIA's 2005 order had no effect on the original order of removal entered by the IJ. The 2005 order vacated the 2003 order only “insofar as it entered an order of removal against the respondent.”   The 2005 order left intact the portions of the 2003 order affirming the finding of removability and reversing the grant of relief.   The remand to the IJ reflected the BIA's misunderstanding of the status of the removal order, caused by our description of the review process in Molina-Camacho.   The majority's analysis in this order reflects the same misunderstanding, and similarly misdescribes the effects of the BIA's 2005 order.   Though Molina-Camacho muddied the waters, Lolong made clear that we have retained jurisdiction over this case throughout its pendency.

At no time did we lose jurisdiction over this case, because at all times there was a final agency decision in place for us to review:  the IJ's 2001 order of removal.  Lolong is directly on point, and we may not side-step it on the basis of a distinction that is ultimately immaterial.   I dissent from the majority's determination to the contrary.

FOOTNOTES

1.   While four judges dissented from the majority's denial of Lolong's petition for review on the merits, the panel reached a unanimous agreement on the jurisdictional issue.   See 484 F.3d at 1181-82 (Thomas, J., concurring in part and dissenting in part).