Francisco Lara v. Eric Holder, Jr. , 367 F. App'x 678 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 4, 2010∗
Decided March 5, 2010
Before
FRANK H. EASTERBROOK , Chief Judge
WILLIAM J. BAUER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09-1999
Appeal from an Order of the
FRANCISCO J. LARA, Board of Immigration
Petitioner, Appeals.
v. No. A 096-487-227
ERIC H. HOLDER, JR., Attorney General of the
United States,
Respondent.
Order
Francisco Javier Lara filed a petition for review of a final order of removal to
Mexico. One of his arguments was that the Board of Immigration Appeals should have
allowed him the privilege of voluntary departure, a procedure that makes it possible to
apply for legal admission without the extended delay that follows removal. While the
petition was pending, the Board agreed with petitioner on this point, vacated its order,
and remanded to the Immigration Judge. The Attorney General now asks us to dismiss
the petition for review.
∗ After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 09-1999 Page 2
The Attorney General’s position is that our jurisdiction is limited to final orders
of removal, 8 U.S.C. §1252(a), and no such order is outstanding. Perhaps the
Immigration Judge will enter a new one, and perhaps the BIA will affirm it, but we
cannot “review” an order that no longer exists. Orichitch v. Gonzales, 421 F.3d 595, 598
(7th Cir. 2005); Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004). “The order sought to
be reviewed is no more. Any judicial act while there is no outstanding order of removal
would be advisory.” Gao v. Gonzales, 464 F.3d 728, 730 (7th Cir. 2006).
Moreover, because voluntary departure is available only to an alien who
represents that he intends to leave voluntarily, see 8 U.S.C. §1229c(b)(1)(D); Dada v.
Mukasey, 128 S. Ct. 2307 (2008); Alimi v. Ashcroft, 391 F.3d 888 (7th Cir. 2004), it would be
inappropriate for us to assume that any new order of removal is bound to be contested
in court.
Petitioner’s reply brief does not address the Attorney General’s arguments. Nor
does petitioner contend that the Immigration Judge has completed work on the
remand and that the order of removal has been reinstated. Instead petitioner contends
that this court has already resolved the issue. Yet the decision of a motions panel on
December 16, 2009, denying the motion to dismiss, did not give reasons. A merits panel
can review a summary decision by a motions panel on a jurisdictional question. See
Bogard v. Wright, 159 F.3d 1060 (7th Cir. 1998); Johnson v. Burken, 930 F.2d 1202 (7th Cir.
1991).
We now grant the Attorney General’s motion to dismiss the petition, because
there is no outstanding final order of removal.