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

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.