Sanchez-Naranjo v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 12, 2013
Elisabeth A. Shumaker
Clerk of Court
JOSE JESUS SANCHEZ-NARANJO,
Petitioner,
v. No. 12-9556
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.
Jose Jesus Sanchez-Naranjo petitions for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from a decision of an Immigration
Judge (IJ) denying his application for adjustment of status and ordering his removal.
Because the BIA has since reopened the proceedings and remanded for a new
decision by the IJ, we dismiss the petition for lack of jurisdiction.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) solely to review final orders
of removal. Padilla-Caldera v. Holder, 637 F.3d 1140, 1144 (10th Cir. 2011);
Hamilton v. Gonzales, 485 F.3d 564, 566 (10th Cir. 2007). “[T]he grant of a motion
to reopen vacates the previous order of deportation or removal and reinstates the
previously terminated immigration proceedings.” Bronisz v. Ashcroft, 378 F.3d 632,
637 (7th Cir. 2004), quoted in Ribas v. Mukasey, 545 F.3d 922, 931 (10th Cir. 2008).
Thus when, as here, the BIA reopens a previously concluded removal proceeding and
remands for a new decision by the IJ, the prerequisite for circuit court jurisdiction
ceases to exist and any pending petition for review must be dismissed. See, e.g.,
Gao v. Gonzales, 464 F.3d 728, 729-30 (7th Cir. 2006); Lopez-Ruiz v. Ashcroft,
298 F.3d 886, 887 (9th Cir. 2002); Satheeskumar v. Att’y Gen. of U. S., 480 F. App’x
121, 123 (3d Cir. 2012) (following Lopez-Ruiz); Gafurova v. Holder, 448 F. App’x
139, 140 (2d Cir. 2011) (same).
Seeking to avoid that conclusion, Mr. Sanchez-Naranjo argues that we have
jurisdiction under 8 U.S.C. § 1252(a)(2)(D), because his petition for review raises
constitutional issues. He misapprehends the effect of § 1252(a)(2)(D), which is not
an independent grant of jurisdiction. Rather, it only preserves our jurisdiction under
§ 1252(a), in the face of certain other statutory prohibitions or constraints, for
“constitutional claims or questions of law raised upon a petition for review filed . . .
in accordance with this section.” Id. (emphasis added). A petition for review
obviously fails to satisfy the emphasized condition if it does not relate to a final
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removal order as specifically required by § 1252(a)(1). As this court clarified in
Hamilton, § 1252(a)(2)(D) “did not confer an expanded grant of jurisdiction but
merely confirmed our authority to review constitutional claims and questions of law
. . . only after a final order of removal has been entered.” Hamilton, 485 F.3d at 567(internal quotation marks omitted) (holding § 1252(a)(2)(D) did not provide basis for
judicial review of legal challenge to visa revocation absent final removal order); see
also Green v. Napolitano, 627 F.3d 1341, 1347 (10th Cir. 2010) (following Hamilton
to hold § 1252(a)(2)(D) could not provide basis for judicial review of constitutional
challenge to visa revocation absent final removal order).
In sum, the petition for review no longer has a jurisdictional foundation in
§ 1252(a)(1), and § 1252(a)(2)(D), by its own terms, has no operation here. Once the
BIA reopened and remanded the underlying proceeding for a new determination by
the IJ, there ceased to be a final removal order properly before this court for review.
The petition for review is dismissed.
Entered for the Court
Monroe G. McKay
Circuit Judge
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