Galindo-Romero v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PEDRO GALINDO-ROMERO,  No. 05-73517
Petitioner, Agency No.
v. A075-501-548
ERIC H. HOLDER Jr., Attorney ORDER
General, AMENDING
Respondent. OPINION AND
 DENYING
PETITION FOR
REHEARING AND
PETITION FOR
REHEARING EN
BANC AND
AMENDED
 OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 4, 2010—Pasadena, California

Filed September 2, 2010
Amended May 9, 2011

Before: Richard R. Clifton and Jay S. Bybee, Circuit Judges,
and Edward R. Korman, Senior District Judge.*

Opinion by Judge Bybee

*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.

6089
 GALINDO-ROMERO v. HOLDER 6091

COUNSEL

Kathryn M. Davis, Pro Bono Appointed Counsel, Costa
Mesa, California, for the petitioner.

Anthony P. Nicastro, U.S. Department of Justice, Office of
Immigration Litigation, Washington, D.C., for the respondent.

ORDER

The panel has unanimously decided to amend its opinion,
available at 621 F.3d 924, filed on September 2, 2010.

On page 928, delete footnote 4.
6092 GALINDO-ROMERO v. HOLDER
On page 930, delete footnote 5.

With these amendments, the panel has voted to deny the
petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehear-
ing en banc, filed January 13, 2011, are hereby DENIED. No
future petitions for rehearing will be entertained. General
Order 5.3 (a).

OPINION

BYBEE, Circuit Judge:

Petitioner Pedro Galindo-Romero (“Galindo”) seeks review
of an order of the Board of Immigration Appeals (“BIA”) dis-
missing his appeal of an Immigration Judge’s (“IJ”) decision
terminating his formal removal proceedings. The BIA and IJ
held that they lacked jurisdiction over Galindo’s removal pro-
ceedings, including his application for cancellation of
removal, because of an un-reinstated expedited removal order
previously issued against Galindo. Galindo argues that the
agency’s decision to relinquish jurisdiction based on this
expedited removal order was error. However, we conclude
that we lack jurisdiction to decide the merits of Galindo’s
petition for review for a different reason: because the deci-
sions of the BIA and IJ resulted in no final order of removal.
Accordingly, we dismiss Galindo’s petition for review.

I

Galindo is a native and citizen of Mexico. In 1987, he
entered the United States illegally and settled in Texas. On
 GALINDO-ROMERO v. HOLDER 6093
March 2, 1998, the former Immigration and Naturalization
Service (“INS”) issued a Notice to Appear charging Galindo
with removability as an alien present in the United States
without having been admitted or paroled, in violation of 8
U.S.C. § 1182(a)(6)(A)(i). He was placed in formal removal
proceedings and ordered to appear before an IJ.

On June 26, 1998, Galindo appeared before an IJ, admitted
the factual allegations in the Notice to Appear, conceded
removability, and sought cancellation of removal or, in the
alternative, voluntary departure. Galindo asked for additional
time to explore his eligibility for cancellation of removal, and
the hearing adjourned. On February 11, 2000, Galindo filed
an application for cancellation of removal. Two continuances
followed, and Galindo’s next hearing was set for March 26,
2001.

In April 2000, while still in removal proceedings with a
pending cancellation of removal application, Galindo applied
to the former INS for advance parole to leave the United
States, claiming that his father, who lived in Mexico at that
time, was ill. The INS denied his advance parole application,
but Galindo went to Mexico nonetheless. On April 18, 2000,
Galindo attempted to reenter the United States by applying for
admission at the San Ysidro, California, port of entry,
explaining to the immigration officer that he had a pending
application for cancellation of removal with an IJ. The immi-
gration officer denied Galindo entry.

On April 23, 2000, Galindo again attempted to reenter the
United States, this time by telling the border patrol, falsely,
that he was a United States citizen. Again, an immigration
officer found Galindo inadmissible and denied his admission
application. In support of this denial, the immigration officer
found that Galindo had falsely represented himself to be a cit-
izen of the United States, in violation of 8 U.S.C.
§ 1182(a)(6)(C)(ii), and that he was not, at the time of filing
his admission application, in possession of a valid entry docu-
6094 GALINDO-ROMERO v. HOLDER
ment, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). Accord-
ingly, the immigration officer issued an expedited removal
order pursuant to 8 U.S.C. § 1225(b), and Galindo was sum-
marily removed from the United States.1

At some point, Galindo again entered the United States ille-
gally. On March 26, 2001, Galindo appeared before the IJ in
1
Expedited removal orders are very different from formal removal pro-
ceedings before an IJ. Formal removal proceedings are governed by Sec-
tion 240 of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1229a. Jurisdiction with an IJ vests when the agency serves a Notice to
Appear upon the alien charged with removability and files it with the
immigration court. 8 C.F.R. § 1003.14(a). The IJ then “conduct[s] pro-
ceedings for deciding the inadmissibility or deportability of [the] alien”
pursuant to 8 U.S.C. §§ 1182 and 1227(a), respectively. 8 U.S.C.
§ 1229a(a)(1), (2). The IJ also “ha[s] the authority to . . . determine appli-
cations” for relief under various provisions in the INA, including cancella-
tion of removal under 8 U.S.C. § 1229b. 8 C.F.R. § 1240.1(a)(1)(ii).
Section 240 mandates substantial procedural protections for aliens during
formal removal proceedings. See 8 U.S.C. § 1229a(b).
Expedited removal orders, which are governed by Section 235 of the
INA, 8 U.S.C. § 1225, are “order[s] that summarily remove[ ] an alien
who attempts to gain entry into the United States by falsely claiming citi-
zenship,” Garcia de Rincon v. DHS, 539 F.3d 1133, 1135 (9th Cir. 2008).
In contrast to the procedural protections accorded aliens placed in formal
removal proceedings, Section 235 empowers border agents to unilaterally
and expeditiously remove an alien at the border from the United States
“without further hearing or review,” in the event that the agent determines
that the alien is “inadmissible under section 1182(a)(6)(C) [misrepresenta-
tion] or 1182(a)(7) [lack of proper documentation].” 8 U.S.C.
§ 1225(b)(1)(A)(i). Moreover, there is no judicial review of expedited
removal orders “except as provided in [8 U.S.C. § 1252(e)].” Id.
§ 1252(a)(2)(A)(i). In turn, § 1252(e) “only permits review of expedited
removal orders in a habeas corpus petition, and even then the review is
limited to an inquiry over whether: ‘(A) the petitioner is an alien, (B)
whether the petitioner was ordered removed under [§ 1225(b)(1)], and (C)
whether the petitioner can prove by a preponderance of the evidence that
the petitioner is an alien lawfully admitted for permanent residence, [or is
a refugee or has been granted non-terminated asylum].’ ” Garcia de Rin-
con, 539 F.3d at 1138-39 (second alteration in original) (quoting 8 U.S.C.
§ 1252(e)(2)).
 GALINDO-ROMERO v. HOLDER 6095
his continued removal proceedings and sought to pursue his
previously filed application for cancellation of removal. The
government provided the IJ with the April 23, 2000, expe-
dited removal order, which the government had not yet rein-
stated.2

On January 6, 2004, after several continuances, the IJ
issued an oral decision terminating Galindo’s removal pro-
ceedings. The IJ held that she had “ha[d] no further jurisdic-
tion to hear [Galindo’s] claim on his cancellation of removal,”
because the INS’s April 23, 2000, expedited removal order
“t[ook] preference over the Notice to Appear” and the earlier
removal proceedings that had been pending before the IJ. The
IJ noted that, although the INS had not yet reinstated the
expedited removal order following Galindo’s most recent
2
“When an alien subject to removal leaves the country, the removal
order is deemed to be executed. If the alien reenters the country illegally,
the order may not be executed against him unless it has been ‘reinstated’
by an authorized official.” Morales-Izquierdo v. Gonzales, 486 F.3d 484,
487 (9th Cir. 2007) (en banc). A prior order of removal may be reinstated
“[i]f the Attorney General finds that an alien has reentered the United
States illegally after having been removed or having departed voluntarily,
under an order of removal.” 8 U.S.C. § 1231(a)(5). “Reinstatement of a
prior order of removal is not automatic.” Alcala v. Holder, 563 F.3d 1009,
1013 (9th Cir. 2009). Rather, the agency must comply with the require-
ments set forth in two statutory provisions, which we will discuss in Part
II of this opinion.
Section 1231(a)(5) of Title 8 limits any review of reinstatement orders,
providing that an order of reinstatement “is not subject to being reopened
or reviewed, the alien is not eligible and may not apply for any relief
under this chapter, and the alien shall be removed under the prior order at
any time after the reentry.” Accordingly, we have held that reinstatement
“can be performed like any other ministerial enforcement action,”
Morales-Izquierdo, 486 F.3d at 491, without any hearing before an IJ, id.
at 498. Our “review of the reinstatement . . . is limited to confirming the
agency’s compliance with the reinstatement regulations,” in particular to
“three discrete inquiries”: “(1) whether the petitioner is an alien; (2)
whether the petitioner was subject to a prior removal order[;] and (3)
whether the petitioner re-entered illegally.” Garcia de Rincon, 539 F.3d at
1137.
6096 GALINDO-ROMERO v. HOLDER
return to the United States, “that order would still be valid and
outstanding and could, in fact, be reinstated” by the INS.
Although the IJ terminated removal proceedings, she did not
order Galindo removed, agreeing with Galindo’s counsel that
she could not “give [Galindo] a removal order and deny the
[cancellation of removal] application when there [was] an
expedited removal order.”

Galindo appealed to the BIA, challenging the IJ’s termina-
tion of proceedings. The BIA dismissed, holding that Galin-
do’s “appeal relate[d] to matters outside [its] jurisdiction” and
providing three reasons for that holding: (1) under 8 C.F.R.
§ 235.3(b)(2)(ii), the expedited removal order itself was not
subject to appellate review by the BIA; (2) under 8 U.S.C.
§ 1231(a)(5), Galindo was ineligible to pursue any kind of
relief from removal, including cancellation of removal,
because his “expedited removal order [wa]s subject to rein-
statement”; and (3) the BIA “ha[d] no authority to pass judg-
ment on the constitutionality of the Immigration and
Nationality Act” or the regulations implementing it. Galindo
timely appealed to this court.

II

Galindo argues that the agency erred in terminating his for-
mal removal proceedings. Before we may decide the merits of
this argument, we must determine whether the Immigration
and Nationality Act (“INA”) empowers us with jurisdiction
over Galindo’s petition for review, an issue we determine de
novo. See Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000).3

[1] “The carefully crafted congressional scheme governing
review of decisions of the BIA limits this court’s jurisdiction
to the review of final orders of removal.” Alcala v. Holder,
3
Regardless of whether we have jurisdiction over Galindo’s petition for
review, we have jurisdiction to determine our own jurisdiction. See Alcala,
563 F.3d at 1013 n.8.
 GALINDO-ROMERO v. HOLDER 6097
563 F.3d 1009, 1013 (9th Cir. 2009) (emphasis added) (citing
8 U.S.C. § 1252(a)); see also 8 U.S.C. § 1252(b)(9) (“Judicial
review of all questions of law and fact . . . shall be available
only in judicial review of a final order under this section.”).
“The term ‘order of [removal]’ means the [administrative]
order . . . concluding that the alien is [removable] or ordering
[removal].” 8 U.S.C. § 1101(a)(47)(A).

We lack jurisdiction to review the agency’s termination of
Galindo’s formal removal proceedings because the decisions
of the BIA and IJ resulted in no order of removal at all. The
agency is unable to remove Galindo from the United States on
the basis of either of these decisions, and may remove him
only if the Department of Homeland Security either (1) initi-
ates new formal removal proceedings with service of a new
Notice to Appear (which it has not done); or (2) reinstates the
previous expedited order of removal (which it has not done).
Crucially, “[r]einstatement of a prior order of removal is not
automatic.” Alcala, 563 F.3d at 1013. Rather, the agency must
comply with the requirements set forth in two statutory provi-
sions in order to reinstate a prior order of removal. First, the
agency “must (1) obtain the prior order related to the alien, (2)
confirm that the alien under consideration is the same alien
who was previously removed or voluntarily departed, and (3)
confirm that the alien unlawfully reentered the United States.”
Lin v. Gonzales, 473 F.3d 979, 983 (9th Cir. 2007) (citing 8
C.F.R. § 241.8(a)). Second, the agency “must provide the
alien with written notice of his or her determination and give
the alien an opportunity to make a statement contesting the
determination.” Id. (citing 8 C.F.R. § 241.8(b)). In this case,
the agency has taken none of these actions, and thus no
reinstatement—and, therefore, no order of removal—has
occurred.

In arguing that we have jurisdiction over his petition for
review, Galindo relies entirely on our en banc decision in
Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (en banc).
In Lolong, an alien placed in removal proceedings conceded
6098 GALINDO-ROMERO v. HOLDER
removability, and an IJ held that she was removable but
granted her application for asylum. Id. at 1175. The INS
appealed, and the BIA vacated the IJ’s decision and denied
Lolong’s application for asylum, but “rather than remanding
Lolong’s case to the IJ for entry of an order of removal, the
BIA itself granted her voluntary departure.” Id. at 1176.
Lolong petitioned for review with this court. Id. at 1175.

On appeal, we rejected the government’s argument that,
because the BIA did not enter any order of removal, and in
fact “lacks statutory authority to enter orders of removal,” id.
at 1176, we lacked jurisdiction to review the BIA’s order. We
first noted that Lolong’s “legal limbo”—in which she was
“deprive[d] . . . of any avenue to seek review of the BIA’s
decision”—“may raise serious constitutional concerns
because the Suspension Clause unquestionably requires some
judicial intervention in deportation cases.” Id. at 1177 (quota-
tion marks omitted). In order to avoid serious doubts about
the constitutionality of the INA, we determined that,

where the BIA reverses an IJ’s grant of relief that, by
definition, follows an initial determination by the IJ
that the alien is in fact removable, . . . the BIA sim-
ply reinstates the 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. In other words, the BIA “[r]einstat[es] a prior order of
removal by eliminating the impediment to that order’s
enforcement.” Id. We concluded that this decision of the BIA
“is effectively an order of removal” and that, therefore, we
“ha[d] jurisdiction to consider [Lolong’s] petition for review
of the BIA’s reinstatement of [the IJ’s] order.” Id. at 1178.

Galindo argues that, as in Lolong, he “is in the limbo state
of having been subjected to an unlawful order [terminating
 GALINDO-ROMERO v. HOLDER 6099
proceedings] that would never be reviewable if the Govern-
ment’s jurisdiction argument prevails.” He argues that

[t]he BIA’s declination of jurisdiction purports on its
face not to be a final order of removal but it allows
the [expedited removal order] to spring to life and
allows Galindo to be summarily removed . . . despite
never having the ability to seek federal court review
of the lawless decision of the immigration courts.
This court should find that Lolong controls and
therefore hold that . . . the BIA’s decision . . . is “ef-
fectively” a final order of removal because the “im-
pediment to the [prior] order’s enforcement” has
been eliminated.

Galindo’s reliance on Lolong is misplaced. His argument is
based on the faulty premise that the BIA’s decision “allows
the [expedited removal order] to spring to life,” a proposition
that is in direct conflict with our controlling decision in
Alcala. In Alcala, an alien unlawfully entered the United
States in 1988, applied for asylum in 1993, and thereafter
returned to Mexico. 563 F.3d at 1011. “On March 18, 2000,
Alcala attempted to return to the United States by using a
fraudulent certificate of legal permanent residency . . . . That
same day, . . . Alcala was placed in expedited removal pro-
ceedings and removed from the United States.” Id. After exe-
cution of the removal order, Alcala again illegally entered the
United States. Id. Unaware that Alcala had been previously
removed from the United States, the INS served Alcala with
a Notice to Appear in December 2000. Id. At his removal
hearing, Alcala conceded removability and (after abandoning
his previous asylum application) sought adjustment of status
based on his subsequent marriage to a U.S. citizen. See id. at
1011-12. At some point, the government became aware of
Alcala’s prior expedited removal order and “moved to dismiss
the removal proceedings it had commenced in December
2000 so that it might reinstate Alcala’s prior March 18, 2000
[expedited] removal order.” Id. at 1012. The IJ granted the
6100 GALINDO-ROMERO v. HOLDER
motion and terminated proceedings “without adjudicating
[Alcala’s] applications for relief.” Id. Alcala appealed to the
BIA, which affirmed without opinion. Id. Alcala then “peti-
tion[ed] for review of the BIA’s order affirming the IJ’s dis-
missal of removal proceedings . . . that resulted in no order
of removal whatsoever.” Id. at 1012-13.

[2] We held that, “[b]ecause an order dismissing removal
proceedings is not an order of removal, we lack[ed] jurisdic-
tion over Alcala’s petitions for review.” Id. at 1013. “Rein-
statement of a prior order of removal is not automatic” but
occurs “[o]nly if the requirements of 8 C.F.R. § 241.8(a) and
(b) have been satisfied,” and “there [wa]s no evidence in the
record that the government ha[d] taken any steps whatsoever
to reinstate the prior removal order against Alcala.” Id. at
1013-14 (quotation marks omitted). Moreover, the fact “[t]hat
the government [could], in the future, decide to reinstate the
March 18, 2000 order of removal d[id] not confer jurisdiction
upon us.” Id. at 1013. We noted that “[w]hen, and if, the gov-
ernment cho[se] to reinstate the March 18, 2000 expedited
order of removal, Alcala [could] seek whatever judicial reme-
dies are afforded to an alien in reinstatement proceedings.” Id.
at 1014 (citing Garcia de Rincon v. DHS, 539 F.3d 1133,
1137-42 (9th Cir. 2008)). We concluded, however, that
“where there is no final order of removal, this court lacks
jurisdiction . . . no matter how unsatisfying the Limbo-like
circumstances in which an individual petitioner finds him-
self.” Id. at 1016.

Crucially, we rejected the argument that “Lolong [stands]
for the proposition that we [could] treat the BIA’s order dis-
missing removal proceedings as ‘effectively’ a final order of
removal because Alcala’s removal [wa]s . . . a ‘foregone con-
clusion.’ ” Id. at 1014 n.9. We determined that, in Lolong,

we did not rest our holding upon the conclusion that
we had the power to review orders other than final
orders of removal. Nor did we conclude that we have
 GALINDO-ROMERO v. HOLDER 6101
jurisdiction any time an IJ might, impliedly or other-
wise, think an alien is removable. Instead, we held
that the IJ’s finding of removability was a final order
of removal that was reinstated when the BIA
reversed the grant of cancellation of removal. Here,
by contrast, the IJ made no finding of removability
and the BIA ha[d] not undertaken the steps necessary
—and prescribed by regulation—to reinstate the
prior, March 18, 2000 expedited order of removal.

Id. (citation omitted).

[3] Galindo’s case is not meaningfully distinguishable
from Alcala. As in Alcala, the termination of Galindo’s
removal proceedings “resulted in no order of removal whatso-
ever.” Id. at 1013. “[T]here is no evidence in the record that
the government has taken any steps whatsoever to reinstate
the prior removal order against [Galindo],” id. at 1014, and
“[t]hat the government may, in the future, decide to reinstate
the [expedited removal order] does not confer jurisdiction on
us,” id. at 1013.

Moreover, as in Alcala, Lolong is of no help to Galindo. In
Lolong, we held that the BIA’s reversal of the IJ’s grant of
asylum effectively reinstated the IJ’s previous finding of
removability. See Alcala, 563 F.3d at 1014 n.9. But in Galin-
do’s case, “the IJ made no finding of removability and the
BIA has not undertaken the steps necessary—and prescribed
by regulation—to reinstate [Galindo’s] prior . . . expedited
order of removal.” Id. Until the government satisfies these
requirements, no order of removal has been reinstated, and
there is no “final order of removal” for us to review.

The only difference between Galindo’s case and Alcala is
that Alcala sought relief after being removed pursuant to the
expedited removal order, whereas Galindo had commenced
formal removal proceedings and had applied for cancellation
of removal before being subject to the expedited removal
6102 GALINDO-ROMERO v. HOLDER
order. Galindo points out that, under 8 U.S.C. § 1231(a)(5), an
alien subject to a reinstated order of removal “is not eligible
and may not apply for any relief under [the INA].” Galindo
interprets this provision to mean that the reinstatement of a
prior order of removal precludes an alien from subsequently
seeking relief from removal, but does not extinguish applica-
tions for relief filed prior to the reinstatement. Thus, he
argues, Alcala is distinguishable from his case because Alcala
“had no right to seek cancellation after an [expedited removal
order]” due to the operation of 8 U.S.C. § 1231(a)(5), and
therefore “was no worse off when his case was dismissed[,]
. . . [and] depriving him of federal appellate jurisdiction did
not create an unlawful Lolong limbo state.” In contrast,
Galindo argues that the reinstatement of the expedited
removal order in Galindo’s case “could not be used to thwart
a preexisting application for relief,” and so “Galindo has lost
a pending claim for relief from deportation” due to the dis-
missal of his claim, creating a Lolong problem.

We reject his argument. First, we disagree with his reading
of § 1231(a)(5). In Galindo’s case, the reinstatement of the
prior expedited removal order would “thwart” his application
for cancellation of removal. Nothing in § 1231(a)(5) indicates
that its bar on eligibility for relief applies only to relief sought
prospectively, as opposed to an application for relief already
pending. Indeed, the provision includes two distinct clauses:
an alien who has been removed and then reenters illegally is
“[1] not eligible and [2] may not apply for” relief under the
INA. 8 U.S.C. § 1231(a)(5) (emphasis added). If § 1231(a)(5)
were meant to bar only future applications for relief, the “not
eligible and” language would be superfluous. See Weinberger
v. Hynson, Wescott and Dunning, Inc., 412 U.S. 609, 633
(1973) (noting the “well-settled rule of statutory construction
that all parts of a statute, if at all possible, are to be given
effect”). Nowhere in Galindo’s briefs does he attempt to
explain how his theory of § 1231(a)(5) is consistent with this
language.
 GALINDO-ROMERO v. HOLDER 6103
[4] Second, Alcala did not engage in the kind of “harmless
error” analysis that Galindo appears to believe that it con-
ducted. In fact, in Alcala, we even noted that our holding was
compelled by the INA “no matter how unsatisfying the
Limbo-like circumstances in which an individual petitioner
finds himself.” 563 F.3d at 1016. Our holding in Alcala was
purely jurisdictional: we held that we lacked jurisdiction
because the agency had not yet reinstated its expedited
removal order and thus the BIA’s decision “resulted in no
order of removal whatsoever,” id. at 1013, the precise situa-
tion here. It makes no difference to the jurisdictional question
whether the expedited removal order occurred before or after
Galindo’s application for cancellation of removal; under
Alcala, it is the lack of reinstatement that precludes our juris-
diction. See id. at 1013-14.

III

[5] In sum, the decisions of the BIA and IJ resulted in no
final order of removal for us to review, and there will be no
final order of removal for us to review until the government
either reinstates its prior expedited removal order or initiates
new formal removal proceedings. “When, and if, the govern-
ment chooses to reinstate the [April 23, 2000,] expedited
order of removal, [Galindo] may seek whatever judicial reme-
dies are afforded to an alien in reinstatement proceedings.” Id.
at 1014. Until then, we lack jurisdiction.

DISMISSED.