Carlos A. Mejia Galindo v. Jefferson B. Sessions III , 897 F.3d 894 ( 2018 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 17-1253
    CARLOS ALBERTO MEJIA GALINDO,
    Petitioner,
    v.
    JEFFERSON B. SESSIONS III,
    Attorney General of the United States,
    Respondent.
    ____________________
    Petition for Review of an Order of the
    Board of Immigration Appeals.
    No. A098-644-509
    ____________________
    ARGUED NOVEMBER 28, 2017 — DECIDED JULY 31, 2018
    ____________________
    Before BAUER, ROVNER, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Carlos Alberto Mejia Galindo, a na-
    tive of Honduras and a lawful permanent resident, faces
    removal from the United States as a result of three Kentucky
    2                                                         No. 17-1253
    convictions for possession of drug paraphernalia. 1 The
    immigration judge determined that Mejia Galindo is not
    removable under 
    8 U.S.C. § 1227
    (a)(2)(B)(i) as an alien
    convicted of a controlled-substance offense. The Board of
    Immigration Appeals reversed and purported to enter a
    removal order. Mejia Galindo petitions for review.
    We lack jurisdiction to review the Board’s determination
    that the drug-paraphernalia convictions qualify as
    controlled-substance offenses. The Immigration and Nation-
    ality Act (“INA”) empowers us to review only a “final order
    of removal.” 
    8 U.S.C. § 1252
    . A final removal order is created
    in two steps. First, the immigration judge must conclude that
    the alien is removable. 
    Id.
     § 1101(a)(47)(A). Second, the
    immigration judge’s removal order becomes “final” upon “a
    determination by the Board of Immigration Appeals affirm-
    ing such order.” Id. § 1101(a)(47)(B). Here, the immigration
    judge never made the requisite finding of removability, so
    there is no final order of removal to review.
    Although we lack jurisdiction to review the Board’s clas-
    sification of the drug-paraphernalia offenses, our jurisdiction
    to consider our own jurisdiction includes the authority to
    vacate the Board’s decision and remand as a remedy for the
    legal error we have identified in our jurisdictional decision.
    See Rhodes-Bradford v. Keisler, 
    507 F.3d 77
    , 81–82 (2d Cir.
    2007). Because the Board lacked the authority to issue a
    removal order in the first instance, we vacate and remand its
    ultra vires order.
    1 The petitioner’s last name is hyphenated in the immigration judge’s
    order, his criminal records, and in filings before this court. We do not
    hyphenate his name to remain consistent with the Board’s order.
    No. 17-1253                                                    3
    I. Background
    Mejia Galindo legally entered the United States in 2001
    and became a lawful permanent resident in 2007. Soon
    thereafter he amassed three convictions for possession of
    drug paraphernalia in violation of section 218A.500(2) of the
    Kentucky Statutes. In response the Department of Homeland
    Security initiated removal proceedings, charging Mejia
    Galindo with removability under § 1227(a)(2)(B)(i) as an
    alien convicted of a controlled-substance offense.
    Mejia Galindo moved to terminate the removal proceed-
    ings. To determine whether his paraphernalia convictions
    qualify as removable offenses, the immigration judge ap-
    plied the familiar “categorical” and “modified categorical”
    approaches. Under the categorical approach, an alien’s state
    conviction renders him removable if it “necessarily estab-
    lishe[s]” a violation of federal law. Mellouli v. Lynch,
    
    135 S. Ct. 1980
    , 1987 (2015). The modified categorical ap-
    proach applies if a divisible statute “proscribes multiple
    types of conduct, some of which would constitute a [remov-
    able offense] and some of which would not.” Lopez v. Lynch,
    
    810 F.3d 484
    , 489 (7th Cir. 2016) (quoting Familia Rosario v.
    Holder, 
    655 F.3d 739
    , 743 (7th Cir. 2011)). If that’s the case, a
    court may “consult a limited class of documents, such as
    indictments and jury instructions, to determine which
    alternative formed the basis of the defendant’s prior convic-
    tion.” Descamps v. United States, 
    570 U.S. 254
    , 257 (2013).
    The immigration judge first determined that Mejia
    Galindo is not removable under the categorical approach.
    He reasoned that the Kentucky statute criminalizes para-
    phernalia for three drugs that are not proscribed by federal
    law—tramadol, carisoprodol, and nalbuphine. As a conse-
    4                                                  No. 17-1253
    quence, Mejia Galindo’s drug-paraphernalia convictions do
    not necessarily establish a violation of the federal controlled-
    substance statute. Next, the immigration judge concluded
    that the modified categorical approach does not apply
    because the paraphernalia statute is not divisible. Based on
    these findings, the immigration judge terminated the re-
    moval proceedings.
    The Board reversed, finding that Mejia Galindo’s convic-
    tions necessarily establish a controlled-substance violation.
    Despite the facial mismatch between the state and federal
    statutes, the Board determined that there is no “realistic
    probability” that Mejia Galindo’s conviction involved tra-
    madol, carisoprodol, or nalbuphine. See Moncrieffe v. Holder,
    
    569 U.S. 184
    , 191 (2013) (holding that a state statute is over-
    broad if there is “a realistic probability, not a theoretical
    possibility, that the State would apply its statute to conduct
    that falls outside the generic definition of a crime”) (internal
    quotation marks omitted). Instead of remanding for the
    immigration judge to enter a removal order, the Board
    purported to enter a removal order on its own.
    Mejia Galindo petitioned for review, contending that he
    is not removable and, in any event, the Board lacks the
    authority to enter a removal order in the first instance.
    II. Discussion
    The INA grants us jurisdiction to review the Board’s deci-
    sion only if it constitutes a “final order of removal.”
    § 1252(a)(1). To interpret that phrase, we look to the defini-
    tion of “order of deportation,” which envisions a two-step
    removal process. See Guevara v. Gonzales, 
    472 F.3d 972
    , 976
    (7th Cir. 2007) (“deportable” and “removable” are synony-
    No. 17-1253                                                    5
    mous under the INA); Sosa-Valenzuela v. Gonzales, 
    483 F.3d 1140
    , 1143 n.5 (10th Cir. 2007) (same). First, a “special inquiry
    officer, or other such administrative officer to whom the
    Attorney General has delegated the responsibility for deter-
    mining whether an alien is deportable[,] [must] conclud[e]
    that the alien is deportable or order[] deportation.”
    § 1101(a)(47)(A). In this context “special inquiry officer”
    means “immigration judge.” Guevara, 472 F.3d at 976;
    
    8 C.F.R. § 3.0
    . Second, the removal order becomes “final”
    upon “a determination by the Board of Immigration Appeals
    affirming such order” or upon expiration of the period for
    the alien to seek review. § 1101(a)(47)(B)(i).
    Here, the immigration judge concluded that Mejia
    Galindo was not removable and consequently did not issue a
    removal order. The Board reversed and purported to enter a
    removal order. We therefore must consider whether the INA
    grants the Board authority to issue such an order in the first
    instance. We conclude that it does not.
    Section 1101(a)(47) contemplates a sequential removal
    process with the immigration judge serving as fact-finder
    and the Board serving as an appellate body. Sosa-Valenzuela,
    
    483 F.3d at 1145
     (discussing the Board’s “position as an
    appellate body with the attending limitations on its ability to
    engage in fact-finding”) (internal quotation marks omitted).
    This interpretation finds support in 8 U.S.C. § 1229a, which
    expressly vests immigration judges with the authority to
    conduct removal proceedings in the first instance.
    § 1229a(a)(1) (“An immigration judge shall conduct proceed-
    ings for deciding the inadmissibility or deportability of an
    alien.”), (c)(1)(A) (“[T]he immigration judge shall decide
    whether an alien is removable from the United States.”).
    6                                                  No. 17-1253
    Furthermore, a removal proceeding conducted under
    § 1229a “shall be the sole and exclusive procedure for determin-
    ing whether an alien may be … removed from the United
    States.” § 1229a(a)(3) (emphasis added).
    In Guevara v. Gonzales, 
    472 F.3d 972
    , 973 (7th Cir. 2007),
    the immigration judge found an alien removable but granted
    a discretionary waiver of removal. The Board reversed the
    discretionary waiver and relied on the immigration judge’s
    finding of removability to enter a removal order. 
    Id.
     We held
    that the Board’s order was permissible because the immigra-
    tion judge’s “threshold determination constituted an order of
    deportation (i.e., removal) that could be given effect by the
    [Board].” 
    Id. at 976
    . Though not explicitly stated, inherent in
    our reasoning was the assumption that the Board is power-
    less to enter a removal order in the first instance. Other
    circuits have reached the same conclusion. See Rhodes-
    Bradford, 
    507 F.3d at 81
    ; Sosa-Valenzuela, 
    483 F.3d at 1147
    ;
    James v. Gonzales, 
    464 F.3d 505
    , 514 (5th Cir. 2006); Noriega-
    Lopez v. Ashcroft, 
    335 F.3d 874
    , 883–84 (9th Cir. 2003).
    The government responds that the Board “arguably”
    could qualify as an administrative officer with delegated
    authority to conduct removal proceedings under
    § 1101(a)(47)(A). But the Attorney General has not delegated
    any such authority to the Board. See Sosa-Valenzuela, 
    483 F.3d at
    1146–47. Indeed, the INA regulations provide that the
    Board “shall function as an appellate body,” 
    8 C.F.R. § 1003.1
    (d)(1), with jurisdiction to hear appeals from
    “[d]ecisions of Immigration Judges in removal proceedings,”
    
    id.
     § 1003.1(b)(3).
    The government also contends that the Board issues “fi-
    nal orders of its own accord in other circumstances in which
    No. 17-1253                                                   7
    § 1101(a)(47)(B) would seem to apply.” In particular, the
    Supreme Court has treated the Board’s denial of motions to
    reopen or reconsider like final orders of removal for purpos-
    es of review. See Mata v. Lynch, 
    135 S. Ct. 2150
    , 2154 (2015);
    Kucana v. Holder, 
    558 U.S. 233
    , 242 (2010).
    Our jurisdiction to review those orders has no bearing on
    the present analysis. Under the INA we are required to
    consolidate the review of a motion to reopen or reconsider
    with our review of the underlying order. § 1252(b)(6). Thus,
    in those cases our jurisdiction depends on whether the
    underlying order constitutes a final order of removal. See
    Mata, 
    135 S. Ct. at 2154
    . And here the underlying order was
    not a final order of removal. Without a final order of removal
    to review, we lack jurisdiction to address the merits. See
    Rhodes-Bradford, 
    507 F.3d at
    81–82; Sosa-Valenzuela, 
    483 F.3d at 1146
    ; Noriega-Lopez, 
    335 F.3d at
    884–85.
    Mejia Galindo nevertheless contends that we have juris-
    diction because the Board “entered a final order of removal,
    albeit unlawfully.” He relies on Anderson v. Holder, 
    673 F.3d 1089
    , 1096 (9th Cir. 2012), for the proposition that an im-
    proper order is “tantamount to a final order” if it causes an
    alien material harm. Not so. Anderson dealt with the plight of
    a wrongly deported U.S. citizen, and the court relied in part
    on an independent jurisdictional provision that required it to
    evaluate a claim to U.S. citizenship. See § 1252(b)(5). That
    jurisdictional hook does not exist here.
    We likewise are not persuaded by Mejia Galindo’s other
    arguments. He asserts that the Board’s ultra vires order
    counts as a reviewable “final agency action” under the
    Administrative Procedure Act, 
    5 U.S.C. § 704
    . But the INA
    expressly limits our review of Board decisions to a final
    8                                                  No. 17-1253
    order of removal. § 1252(a)(1). Next, Mejia Galindo argues
    that we have jurisdiction under § 1252(a)(2)(C) to determine
    if his convictions qualify as controlled-substance offenses.
    But that provision removes our jurisdiction in such cases.
    § 1252(a)(2)(C) (“[N]o court shall have jurisdiction to review
    any final order of removal against an alien who is remova-
    ble” under § 1227(a)(2)(B)(i).). The Board’s order was a “legal
    nullity” regardless of its content. See Noriega-Lopez, 
    335 F.3d at 884
    .
    Accordingly, we lack jurisdiction to review the Board’s
    determination that Mejia Galindo’s drug-paraphernalia
    convictions qualify as removable controlled-substance
    offenses. That does not, however, leave us powerless to
    unwind the legal error that created the jurisdictional defect.
    Our jurisdiction to consider our own jurisdiction, see
    Muratoski v. Holder, 
    622 F.3d 824
    , 829 (7th Cir. 2010), includes
    the authority to vacate the Board’s decision and remand as a
    remedy to address the legal error that gave rise to the juris-
    dictional impediment we have identified. As the Second
    Circuit has explained:
    It is, of course, the case that we have jurisdic-
    tion to determine whether or not we have ju-
    risdiction over a matter. We believe that a
    necessary concomitant of this jurisdiction is the
    authority to order a remand to remedy those
    legal errors we have identified in the course of
    coming to the conclusion that we have no ju-
    risdiction. … If this were not the case, then
    there would be no remedy in the courts for ul-
    tra vires behavior, and this would raise serious
    due process concerns.
    No. 17-1253                                             9
    Rhodes-Bradford, 
    507 F.3d at 81
     (citation omitted).
    We have concluded, in reviewing our jurisdiction, that
    the Board lacked the authority to issue a removal order in
    the first instance. As such, its order was ultra vires. We
    therefore VACATE and REMAND for proceedings consistent
    with this opinion.