Alcala v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOEL ALCALA, 
Petitioner, No. 04-70983
v.  Agency No.
ERIC H. HOLDER, Attorney General, A70-786-414
Respondent.


JOEL ALCALA,  No. 04-72295
Petitioner,
v.  Agency No.
A70-786-414
ERIC H. HOLDER, Attorney General,
OPINION
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals

Argued November 8, 2007
Submitted April 21, 2009
Pasadena, California

Filed April 28, 2009

Before: Kim McLane Wardlaw, Carlos T. Bea, and
N. Randy Smith, Circuit Judges.

Opinion by Judge Bea;
Partial Concurrence and Partial Dissent by Judge Wardlaw

4949
 ALCALA v. HOLDER 4951

COUNSEL

Victor D. Nieblas P., Law Office of Victor D. Nieblas Pradis,
City of Industry, California, for the petitioner.
4952 ALCALA v. HOLDER
Peter D. Keisler, Assistant Attorney General; M. Jocelyn
Lopez Wright, Assistant Director, Office of Immigration Liti-
gation; Song E. Park, Office of Immigration Litigation, Wash-
ington, DC, for the respondent.

OPINION

BEA, Circuit Judge:

We are called on to determine whether this court has any
power to act where the government voluntarily dismisses
immigration removal proceedings and has not yet obtained a
final order of removal.

Alcala petitions for review of two orders of the Board of
Immigration Appeals (“BIA”): (1) the BIA’s order affirming
the Immigration Judge’s (“IJ”) grant of the government’s
motion to dismiss removal proceedings so the government
could reinstate a prior, expedited order of removal against
Alcala (No. 04-70983); and (2) the BIA’s order denying Alca-
la’s motion to reopen the dismissed removal proceedings,
which motion was based on ineffective assistance of counsel
(No. 04-72295).

Our jurisdiction is limited to that granted by Congress.
Because the authorizing statute limits our jurisdiction to
review of final orders of removal—and because no such order
exists in this case—we dismiss Alcala’s petitions for review.

I.

Alcala, a native and citizen of Mexico, unlawfully entered
the United States on January 20, 1988, without being admitted
or paroled. In 1993, Alcala filed an application for asylum;1
1
Alcala’s asylum application claimed Alcala would be persecuted for
being a member of the “Mexican Labor Union” in the state of Zacatecas,
Mexico. Alcala claimed he had been, and would be, beaten and threatened
by members of the Judicial Police if he returned to Mexico.
 ALCALA v. HOLDER 4953
at some point thereafter, he returned to Mexico.2 On March
18, 2000, Alcala attempted to return to the United States by
using a fraudulent certificate of legal permanent residency
(sometimes called a “green card”). That same day, pursuant
to 8 U.S.C. § 1225(b)(1), Alcala was placed in expedited
removal proceedings and removed from the United States.3
The removal order prohibited Alcala from re-entering the
United States for five years. Nevertheless, Alcala again
unlawfully re-entered the United States soon thereafter.

In late 2000,4 Alcala’s 1993 application for asylum was
denied, and, on December 1, 2000, he was served with a
Notice to Appear for removal proceedings. The notice alleged
Alcala entered the United States on or about January 20,
1988, without being admitted or paroled after inspection. The
notice did not mention Alcala’s expedited removal on March
18, 2000, or his subsequent unlawful re-entry.

At a December 2000 hearing, Alcala, through counsel,
admitted the allegations in the Notice to Appear and conceded
the charge of removability. The IJ continued proceedings until
July 29, 2002 to allow Alcala to file with the INS an amended
application for asylum, as well as applications for withholding
of removal, protection under the Convention Against Torture
(“CAT”), and, in the alternative, voluntary departure. Mean-
while, in February 2001, Alcala married a United States citi-
zen, who then filed a visa petition for an alien relative on
2
The asylum application was pending when Alcala left for Mexico. For
reasons not explained in the record, the government did not process Alca-
la’s asylum application until some time in late 2000.
3
8 U.S.C. § 1225(b)(1)(A)(i) states that if an immigration officer deter-
mines that an alien is “inadmissible under section 1182(a)(6)(C) [pertain-
ing to misrepresentation] or 1182(a)(7) [pertaining to lack of proper
documentation] of this title, the officer shall order the alien removed from
the United States without further hearing or review unless the alien indi-
cates either an intention to apply for asylum under section 1158 of this
title or a fear of persecution.”
4
The precise date does not appear in the record.
4954 ALCALA v. HOLDER
Alcala’s behalf with the INS. The petition was approved.
Alcala then filed with the INS an application for permission
to reapply for admission to the United States after removal
(Form I-212) and an application for adjustment of status
(Form I-485). Once he filed the application for adjustment of
status, Alcala abandoned his applications for other forms of
relief before the immigration court, including asylum, with-
holding of removal, and CAT protection.

After several adjournments, the hearing on the merits of
Alcala’s application for adjustment of status was set for
November 19, 2002. Alcala was present with his wife. Alca-
la’s counsel, however, failed to appear. Instead, Alcala’s
counsel sent an unprepared stand-in attorney who was unfa-
miliar with Alcala’s case. At the hearing, the government
introduced into evidence two verified notices of Alcala’s prior
expedited removal on March 18, 2000. Alcala admitted he
had been so removed on March 18, 2000.

The government then orally moved to dismiss the removal
proceedings it had commenced in December 2000 so that it
might reinstate Alcala’s prior March 18, 2000 removal order
pursuant to 8 U.S.C. § 1231(a)(5),5 based on Alcala’s prior
removal on March 18, 2000, and subsequent illegal re-entry.
Alcala’s stand-in attorney presented no argument in opposi-
tion to the government’s motion, nor did the attorney mention
Alcala’s pending applications for permission to reapply for
admission and for adjustment of status. The IJ granted the
government’s motion to dismiss the proceedings without
adjudicating these applications for relief.
5
8 U.S.C. § 1231(a)(5) states: “If 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, the prior order
of removal is reinstated from its original date and 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.”
 ALCALA v. HOLDER 4955
From the IJ’s order of dismissal, Alcala’s original counsel
filed a timely appeal to the BIA, with a four-page brief in sup-
port. The brief failed to make any argument about the IJ’s dis-
missal of the proceedings or the IJ’s failure to address
Alcala’s pending applications for permission to reapply for
admission and adjustment of status. The BIA affirmed the IJ’s
decision without opinion.

In our court, now represented by new counsel, Alcala
timely filed a petition for review of the BIA’s order affirming
the IJ’s dismissal of removal proceedings, which is now
before us (No. 04-70983).

Alcala’s new counsel also filed a motion to reopen the
November 2002 removal proceedings with the BIA. Alcala
claimed ineffective assistance of counsel based on his coun-
sel’s actions—mostly inactions—at his removal hearing and
appeal. Alcala also contended the IJ abused his discretion by
failing to adjudicate his application for adjustment of status
before terminating the proceedings.

The BIA denied Alcala’s motion to reopen. The BIA held
that under the reinstatement statute and implementing regula-
tion, 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 1241.8,6 Alcala
was subject to reinstatement of his prior order of removal
without a hearing before an IJ. The BIA concluded prior
counsel “did not provide ineffective assistance of counsel”
because Alcala “had no right in the first place” to the removal
proceedings and there was no legal argument counsel could
have made to avoid their termination. Alcala timely filed a
petition for review of this decision (No. 04-72295).
6
8 C.F.R. § 1241.8 states in relevant part: “An alien who illegally reen-
ters the United States after having been removed, or having departed vol-
untarily, while under an order of exclusion, deportation, or removal shall
be removed from the United States by reinstating the prior order. The alien
has no right to a hearing before an immigration judge in such circum-
stances.”
4956 ALCALA v. HOLDER
This court consolidated both petitions for review.

II.

At the outset, it is important to be clear about what Alcala
does and does not petition this court to review. Alcala has not
petitioned for review of the March 18, 2000 removal order.
Nor does Alcala petition for review of a BIA order denying
a motion to reopen the March 18, 2000 expedited proceedings
that resulted in that removal order. Alcala has filed no such
motion. Instead, Alcala seeks review of—and to reopen—the
November 2002 removal proceedings, proceedings that
resulted in no order of removal whatsoever. The only order
the November 2002 hearing produced is an order of dismissal.
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. See 8 U.S.C. § 1252(a);7
Lolong v. Gonzales, 484 F.3d 1173, 1176 (9th Cir. 2007) (en
banc) (“[O]ur jurisdiction is limited to review of final orders
of removal.”).8 Because an order dismissing removal proceed-
ings is not an order of removal, we lack jurisdiction over
Alcala’s petitions for review.

[1] That the government may, in the future, decide to rein-
state the March 18, 2000 order of removal does not confer
jurisdiction upon us. For reasons unknown, the government
has not yet reinstated the order. As we have explained previ-
ously, “[w]hen an alien subject to removal leaves the country,
the removal order is deemed to be executed. If the alien reen-
7
8 U.S.C. § 1252(a)(1) states, in relevant part: “Judicial review of a final
order of removal (other than an order of removal without a hearing . . . )
is governed only by chapter 158 of Title 28 [governing jurisdiction of
court of appeals over petitions for review of final agency orders] . . . .”
8
We do, however, have jurisdiction to determine our jurisdiction over
Alcala’s petitions for review. See Mustanich v. Mukasey, 518 F.3d 1084,
1087 (9th Cir. 2008) (“[W]e retain jurisdiction to review questions of law,
including whether” 8 U.S.C. § 1252 precludes jurisdiction over a petition
for review).
 ALCALA v. HOLDER 4957
ters 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).

[2] Reinstatement of a prior order of removal is not auto-
matic. Under 8 U.S.C. § 1231(a)(5), if the Attorney General
finds an alien has reentered this country illegally after having
been removed under an order of expedited removal—as is the
case with Alcala—the prior order can be reinstated from its
original date. However, the statute’s implementing regulation
“requires that before a prior order can be reinstated, the immi-
gration officer 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)).

If these requirements are met, the immigration officer must
then provide the alien with written notice of the determination
and give the alien an opportunity to make a statement contest-
ing the determination before an immigration officer. 8 C.F.R.
§ 241.8(b). “Only if the requirements of 8 C.F.R. § 241.8(a)
and (b) have been satisfied is the alien removable under the
previous order.” Lin, 473 F.3d at 983, citing 8 C.F.R.
§ 241.8(c).

[3] Here, the government has taken no action to fulfill the
requirements of 8 C.F.R. § 241.8(a) and (b); indeed, there is
no evidence in the record the government has taken any steps
whatsoever to reinstate the prior removal order against Alcala.
When, and if, the government chooses to reinstate the March
18, 2000 expedited order of removal, Alcala may seek what-
ever judicial remedies are afforded to an alien in reinstate-
ment proceedings. See Garcia de Rincon v. Dep’t of
Homeland Sec., 539 F.3d 1133, 1137-42 (9th Cir. 2008);
Morales-Izquierdo, 486 F.3d at 496. Alcala may also have
4958 ALCALA v. HOLDER
remedies by means other than direct review in this court, and
we express no opinion as to whether another court would have
jurisdiction to review his claims for relief. But absent a final
order of removal, we lack the power to entertain Alcala’s
claims for relief.9

Citing Lin v. Gonzales, the dissent contends we have juris-
diction over Alcala’s petition because Alcala petitions for
review of an order denying a motion to reopen. In Lin, we
stated: “The denial of a motion to reopen falls within our
jurisdiction over final orders of removal (not issued in absten-
tia) under 8 U.S.C. § 1252(a)(1), provided that the denial has
been separately appealed.” 473 F.3d at 981 n.1. Lin is distin-
guishable. Petitioner Lin attempted to enter the United States,
but was intercepted at the border, and placed in expedited
removal proceedings. 473 F.3d at 980-81. Lin was ordered
removed, and the government executed the order by removing
Lin from the United States. Id. Lin then illegally re-entered
the United States and filed an asylum application. Id. at 981.
After the IJ denied his application for asylum, Lin filed a
motion to reopen the first removal proceeding—the expedited
9
The dissent cites Lolong for the proposition that we may treat the
BIA’s order dismissing removal proceedings as “effectively” a final order
of removal because Alcala’s removal is now a “foregone conclusion.”
Infra at 4965. Lolong does not authorize us to do so. In Lolong, the IJ
found Lolong removable but granted cancellation of removal. 484 F.3d at
1175. The BIA reversed the IJ’s grant of cancellation of removal, and
Lolong petitioned for review of the BIA’s order. Id. Though the BIA
lacked the power to issue an order of removal in the first instance, we held
that we retained jurisdiction over Lolong’s petition for review. Id. at
1177-78. But 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 jurisdiction any time an IJ might, impliedly or oth-
erwise, 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. Id. Here, by contrast,
the IJ made no finding of removability and the BIA has not undertaken the
steps necessary—and prescribed by regulation—to reinstate the prior,
March 18, 2000 expedited order of removal.
 ALCALA v. HOLDER 4959
proceeding that had resulted in a final order of removal and
its execution by his removal from the United States. Id. The
INA does not provide an independent statutory basis for juris-
diction over a motion to reopen; instead, our jurisdiction over
a motion to reopen is derivative of our jurisdiction over the
underlying order of removal. See Sarmadi v. INS, 121 F.3d
1319, 1321 (9th Cir. 1997) (“[W]e have assumed that jurisdic-
tion over these orders [denying a motion to reopen] is
included in our jurisdiction over final orders of deportation.”).
Alcala, in contrast to Lin, sought before the BIA to reopen his
second removal proceeding—a proceeding the government
had voluntarily dismissed and that resulted in no order of
removal. Even if this executed final order of removal exists,
it has not been reinstated and it is not before us.10 Thus, the
dissent’s “purely textual” reading of the statute is incorrect
because Alcala’s petition does not seek review “of a final
order of removal.” 8 U.S.C. § 1252(a)(1).

The dissent further contends we have jurisdiction over
Alcala’s petition for review of the BIA’s order denying his
motion to reopen simply because it raises a claim of ineffec-
tive assistance of counsel.11 The INA does not give this court
10
That Alcala does not petition for review of the prior, March 18, 2000
order of removal is unsurprising as there are formidable barriers to obtain-
ing such review. Any appeal filed with the BIA would now be time-
barred. See 8 U.S.C. § 1252(b)(1) (requiring appeals to be filed within 30
days of the issuance of the order of removal); 8 C.F.R. § 1003.23(b)(1)
(requiring that any motion to reopen be filed within 90 days of the issu-
ance of the order of removal). Moreover, because Alcala was removed in
expedited proceedings for attempting to enter the United States using false
papers, Alcala is not entitled to review in this court. See Garcia de Rincon,
539 F.3d at 1138-39 (explaining that 8 U.S.C. § 1252(a)(2)(A) & (e) vest
jurisdiction over expedited orders of removal in the district court); see also
8 U.S.C. § 1225(b)(1)(A)(i) (providing that if an immigration officer finds
that an alien attempted to enter the United States using false papers, the
alien is removable without further review).
11
We assume, but do not decide, that Alcala has a constitutional right
to the assistance of counsel in immigration proceedings. On January 7,
4960 ALCALA v. HOLDER
free-floating jurisdiction to review any and all claimed consti-
tutional defects in a removal proceeding. This court has juris-
diction under 8 U.S.C. § 1252(a)(1)(D) over petitions for
review which raise constitutional claims or questions of law
if, and only if, there is a final order of removal. Section
1252(a)(1)(D) states:

Nothing in subparagraph (B) or (C) [limiting review
over denials of discretionary relief and removal
orders against aliens convicted of certain criminal
offenses], or in any other provision of this chapter
(other than this section) which limits or eliminates
judicial review, shall be construed as precluding
review of constitutional claims or questions of law
raised upon a petition for review filed with an appro-
priate court of appeals in accordance with this sec-
tion.

(emphasis added). “This section” is § 1252(a), which limits
jurisdiction to petitions for review of final orders of removal.
Lolong, 484 F.3d at 1176.

Further, the INA states:

Judicial review of all questions of law and fact,
including interpretation and application of constitu-
tional and statutory provisions, arising from any

2009, the Attorney General issued an opinion holding that aliens in
removal proceedings have no right to the assistance of counsel. See Matter
of Compean, 24 I.&N. Dec. 710 (A.G. 2009). We express no opinion on
the effect of this ruling.
Though we do not reach the issue, we also note that the case upon
which the dissent relies to demonstrate Alcala suffered prejudice as a
result of his counsel’s purportedly deficient performance—Perez-
Gonzales v. Ashcroft, 379 F.3d 783 (9th Cir. 2004)—is no longer the law
in the Ninth Circuit. See generally Duran-Gonzales v. Dep’t of Homeland
Sec., 508 F.2d 1227 (9th Cir. 2007).
 ALCALA v. HOLDER 4961
action taken or proceeding brought to remove an
alien from the United States under this subchapter
shall be available only in judicial review of a final
order under this section.

8 U.S.C. § 1252(b)(9) (emphases added).

[4] In Ikenokwalu-White v. Gonzales, the United States
Court of Appeals for the Eighth Circuit held it lacked jurisdic-
tion over a petition for review of a revocation of an immediate
relative petition and of a motion to reopen proceedings on the
revocation, because there was no final order of removal—
even though the petitioner raised a due process claim. 495
F.3d 919, 925 (8th Cir. 2007). We agree with the Eighth Cir-
cuit:

[W]e do not interpret the “constitutional claims or
questions of law” exception contained in the REAL
ID Act to be a general grant of appellate court juris-
diction over all appeals involving alleged constitu-
tional violations by the Service regardless of the
nature of the underlying proceedings; the alleged
constitutional violations must result in an order of
removal that is otherwise directly appealable to the
courts of appeals.

Id. Thus, where there is no final order of removal, this court
lacks jurisdiction even where a constitutional claim or ques-
tion of law is raised.12
12
Fernandez v. Gonzales, 439 F.3d 592 (9th Cir. 2006), is not to the
contrary. In Fernandez, we reviewed the circumstances under which the
jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2)(B)—which
deprive us of jurisdiction over denials of discretionary relief—do not
apply. We noted, in dicta, that we have jurisdiction over a claim of inef-
fective assistance of counsel, even when such claim relates to a discretion-
ary decision and even if resolution of such claim would require the court
to weigh the factors applicable to the discretionary decision. Id. at 602.
4962 ALCALA v. HOLDER
The dissent accuses us of donning “willful blinders” to the
‘facts’ of Alcala’s fate and to the prior order of removal
whose reinstatement is apparently inevitable. Infra at 4963.
We plead guilty as charged. None of those ‘facts,’ nor Alca-
la’s counsel’s deficient performance, can confer jurisdiction
upon us. What the dissent terms a “technicality,” infra at
4965, is nothing less than the bedrock principle that federal
courts are courts of limited jurisdiction. See Cary v. Curtis, 44
U.S. 236, 244 (1845) (“[T]he judicial power of the United
States . . . [depends] entirely upon the action of Congress,
who possess the sole power of creating the tribunals (inferior
to the Supreme Court) for the exercise of the judicial power,
and of investing them with jurisdiction either limited, concur-
rent, or exclusive, and of withholding jurisdiction from them
in the exact degrees and character which to Congress may
seem proper for the public good. To deny this position would
be to elevate the judicial over the legislative branch of the
government . . . .” ). As an inferior court, we are not free to
expand our jurisdiction to review a decision Congress has
placed outside our purview, no matter how incoherent indi-
vidual judges find Congress’s scheme to be and no matter
how unsatisfying the Limbo-like circumstances in which an
individual petitioner finds himself.

[5] We cannot and do not reach the merits of Alcala’s claim
the IJ abused his discretion when he terminated proceedings
without adjudicating Alcala’s applications for relief and Alca-
la’s claim of ineffective assistance of counsel. As a court of
appeals, our direct review of immigration proceedings is lim-
ited to review of final orders of removal. Here, there is none.

But because there was a final order of removal against the petitioner in
Fernandez, the court simply had no occasion to address whether we have
jurisdiction over an “independent” claim of ineffective assistance of coun-
sel where no final order of removal exists. Indeed, Fernandez says nothing
about either 8 U.S.C. § 1252(a)(1)(D) or 8 U.S.C. § 1252(b)(9), and the
dissent’s reading of Fernandez is contrary to the plain language of these
statutory sections.
 ALCALA v. HOLDER 4963
PETITIONS DISMISSED.13

WARDLAW, Circuit Judge, concurring in part and dissenting
in part

I respectfully dissent from the portion of the disposition
holding that we lack jurisdiction to consider Alcala’s motion
to reopen. Though the majority would end its inquiry at the
purported lack of a “final order of removal,” it cannot escape
two facts: First, a final order of removal exists and will be
reinstated upon termination of this appeal. Second, with effec-
tive assistance of counsel, Alcala may have succeeded in
adjusting his status before the IJ. By not recognizing these
facts, the majority has ensured that Alcala’s potentially meri-
torious ineffective assistance of counsel claim can never be
heard due to a technical delay that is entirely within the gov-
ernment’s control and of its own creation.

The majority dons willful blinders to disregard the final
order of removal that already exists for Alcala, the reinstate-
ment of which has merely been stayed pending the outcome
of this appeal. In fact, the very first order we issued after
Alcala filed his petition for review before us was to grant
Alcala’s unopposed motion to stay removal pending review.
Moreover, during the initial adjustment of status proceeding
at which Alcala’s counsel failed him so utterly, the following
colloquy ensued between the IJ and counsel for the Immigra-
tion and Naturalization Service (“INS”):

Q. To the Government, is the respondent not sub-
ject to being removed under the expedited removal
proceeding?

...
13
Alcala’s request to hold his case in abeyance pending issuance of the
mandate in Duran-Gonzales v. Department of Homeland Security, 508
F.2d 1227 (9th Cir. 2007), is dismissed as moot.
4964 ALCALA v. HOLDER
[A.] He is, Your Honor. Service, unfortunately,
can’t make a motion to terminate right now unless I
can contact my office to reinstate the prior order of
removal.

[Q.] All right. How long would it take you to get
that information from your office where we can
appear back here in Court?

[A.] Your honor, I can do it this afternoon if I
could contact my office by telephone and let you
know in 10 minutes.

[Q.] All right. I will go off the record. Here’s the
phone.

...

Q. Counsel for the Government, you’ve had an
opportunity to discuss this matter with your office?

A. Yes, Your Honor, and pursuant to the office
policy and permission of my office, seek to termi-
nate the proceedings . . . and re-instate the removal
order . . . .

...

Q. The respondent admits that the orders do show
and the documents do show that he was deported in
2000. He has reentered the United States without
authorization from the Attorney General. He was
subject for immediate removal without having been
placed in proceedings so I will grant that order of
termination.

The oral decision of the IJ also confirmed the understanding
that, once the proceedings were terminated, the reinstatement,
 ALCALA v. HOLDER 4965
which was stayed pending these proceedings, would go into
effect: “As a result of these documents and the admissions of
the respondent here in Court, [the INS] moved that these pro-
ceedings be terminated so that the [INS] could reinstate the
prior removal order. That motion is granted and proceedings
are hereby terminated.” Thus, the removal order exists, and
once the Department of Homeland Security reinstates it, it is
the order by which Alcala may be deported. Inexplicably, the
majority nonetheless concludes that there is no removal order.

The majority’s argument that Alcala’s removal is not, at
this point, a foregone conclusion is unpersuasive. The major-
ity notes that under 8 C.F.R. § 1241.8(a), an immigration offi-
cer must verify three findings prior to reinstatement: (1) the
existence of the prior order of removal; (2) the identity of the
individual; and (3) the individual’s unlawful reentry. Again,
the majority ignores the fact that all three findings have been
admitted under oath by Alcala, on the record, before an IJ.1 In
Alcala’s circumstances, the likelihood of reinstatement cannot
be seriously questioned; at this point, it is simply a matter of
time. To hold that we lack jurisdiction under these circum-
stances is to allow the government to circumvent review on
a temporal technicality. That is precisely why, in similar con-
texts, we have previously exercised our jurisdiction. See
Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007)
(finding jurisdiction over the BIA’s reversal of a cancellation
of removal because it was “effectively an order of removal”);
see also Gomez-Chavez v. Perryman, 308 F.3d 796, 800 (7th
Cir. 2002) (“[T]he agency does not have the ‘final say on con-
stitutional matters’; instead, that power rests with the courts.”
(quoting Singh v. Reno, 182 F.3d 504, 510 (7th Cir. 1999))).
In sum, the majority is wrong that there is no final order of
removal and improperly relies upon a technicality that will be
1
8 C.F.R. § 1241.8(a)(2) actually requires verification of identity by fin-
gerprint, when disputed. Alcala’s fingerprints are on file and in the record
of this appeal.
4966 ALCALA v. HOLDER
cured as soon as the mandate issues to avoid considering the
merits of Alcala’s petition.2

Indeed, though the majority cites Lin v. Gonzales, 473 F.3d
979, 983 (9th Cir. 2007), for the proposition that reinstate-
ment of a prior order of removal is not automatic, our decision
in Lin should more fundamentally guide our resolution of
Alcala’s appeal. In Lin, after his first petition for asylum had
been denied, Lin illegally reentered the United States and
filed a second application for asylum. When this second peti-
2
The majority characterizes Lolong as holding 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.” Supra, at 4958. In
Lolong, we held that “where the IJ has previously determined that the
alien is removable but grants cancellation of removal, the BIA’s decision
to reverse the cancellation of removal reinstates the initial finding of
removability, which, under the statute, is effectively an order of removal.”
484 F.3d at 1178. The majority disregards the distinction between a find-
ing of removability and a final order of removability. In fact, no actual
order of removal had ever been entered against the petitioner in Lolong.
See id. at 1176 (“Lolong conceded removability before the IJ, and, based
on this concession, the IJ held that Lolong was removable but granted her
application for asylum. The BIA reversed, but rather than remanding
Lolong’s case to the IJ for entry of an order of removal, the BIA itself
granted her voluntary departure.”). We concluded that “[b]ecause Lolong
conceded removability and the IJ found that clear and convincing evidence
supported a finding of removability, a final order of removal was entered.”
Id. at 1178. However, we arrived at this conclusion by reasoning that
“[t]he IJ’s grant of relief, whether in the form of asylum or withholding
of removal on other grounds, necessarily requires the IJ to have already
determined that the alien is deportable. Under the [Immigration and
Nationality Act], this determination by the IJ constitutes an ‘order of
deportation.’ ” Id. at 1177 (quoting 8 U.S.C. § 1101(a)(47)). Thus, an
actual “order of deportation” was never entered against Lolong. On the
contrary, there was merely an implicit determination that Lolong was
removable. We therefore held that a “finding of removability” was “effec-
tively an order of removal.” Id. at 1178 (emphasis added). Similarly, the
IJ’s termination of Alcala’s application for adjustment of status implicitly
determined that Alcala is removable. Thus, by denying Alcala’s motion to
reopen, the BIA effectively reinstated “a prior order of removal by elimi-
nating the impediment to that order’s enforcement.” Id. at 1177.
 ALCALA v. HOLDER 4967
tion was also denied, Lin filed a motion to reopen his initial
asylum application before the IJ. The IJ denied Lin’s motion,
and the BIA affirmed denial, on the grounds that Lin was cur-
rently “ ‘subject to reinstatement of his prior removal order,’
and that the IJ ‘lacks jurisdiction to reopen [Lin’s] prior
removal order.’ ” Id. at 981. Stressing that both the BIA and
the IJ had erroneously assumed that Lin’s prior order of
removal had been reinstated, when in fact under 8 C.F.R.
§ 241.8 the order of removal had not yet been reinstated, id.
at 982-83, we nonetheless exercised our jurisdiction because
“[w]e have jurisdiction over the affirmance of a denial of a
motion to reopen under 8 U.S.C. § 1252(a)(1).” Id. at 981. As
we explained, “[t]he denial of a motion to reopen falls within
our jurisdiction over final orders of removal (not issued in
absentia) under 8 U.S.C. § 1252(a)(1), provided that the
denial has been separately appealed.” Id. at 981 n.1. Under
Lin, therefore, we clearly have jurisdiction over the denial of
Alcala’s motion to reopen, which was separately appealed.

As a purely textual matter, moreover, Lin’s reading of
§ 1252(a)(1) is correct.3 The provision authorizes judicial
review of “a final order of removal” but does not specify
whether the removal order must be unexecuted. An executed
order of removal does not cease to be a final order of removal
by virtue of its execution. While the majority cites Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 487 (9th Cir. 2007) (en
3
In its entirety, § 1252(a)(1) provides:
General orders of removal. Judicial review of a final order of
removal (other than an order of removal without a hearing pursu-
ant to section 1225(b)(1) of this title) is governed only by chapter
158 of Title 28, except as provided in subsection (b) of this sec-
tion and except that the court may not order the taking of addi-
tional evidence under section 2347(c) of Title 28.
8 U.S.C. § 1252(a)(1). Section 1225(b)(1) pertains to “Inspection of aliens
arriving in the United States and certain other aliens who have not been
admitted or paroled.” 8 U.S.C. § 1225(b)(1). Chapter 158 of Title 28 gov-
erns the review of orders of federal agencies.
4968 ALCALA v. HOLDER
banc), for the proposition that a final order of removal may
not be executed more than once without reinstatement, it does
not follow from Morales-Izquierdo that once a final order of
removal has been executed it ceases to exist. Indeed, both
Morales-Izquierdo and Lin suggest a valid distinction
between execution and existence: Once executed, a final order
of removal continues to exist, but it may not be re-executed
without reinstatement. See id. at 489 (“As noted, Morales can-
not be removed again under the 1994 removal order unless
and until it was reinstated.”). In Alcala’s case, therefore, a
final order of removal clearly continues to exist.

We also have jurisdiction to consider Alcala’s appeal
because his motion to reopen contained an independent claim
for ineffective assistance of counsel. See Fernandez v. Gon-
zales, 439 F.3d 592, 602-03 (9th Cir. 2006) (noting that, even
in those cases where we may otherwise lack jurisdiction, “we
have jurisdiction over motions to reopen regarding cases in
which . . . an independent claim such as ineffective assistance
of counsel is at issue”). Because Alcala’s claim of ineffective
assistance of counsel is a matter properly before us for
review, his motion to reopen should be granted.4

A claim for ineffective assistance has two components:
counsel’s failure to perform with sufficient competence, and
prejudice resulting from this failure. Mohammed v. Gonzales,
400 F.3d 785, 793 (9th Cir. 2005). Prejudice does not require
evidence that counsel’s poor performance definitively
changed the result; rather, all that Alcala is required to dem-
4
The majority claims that this reading of Fernandez conflicts with 8
U.S.C. § 1252(a)(2)(D), which safeguards our ability to review “constitu-
tional claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this section.” 8
U.S.C. § 1252(a)(2)(D). The majority’s assertion is circular. It is premised
upon the incorrect assumption that we lack jurisdiction over Alcala’s peti-
tion for review. However, Alcala appropriately filed his petition for review
“in accordance” with 8 U.S.C. § 1252, and we accordingly have jurisdic-
tion, so there is no conflict.
 ALCALA v. HOLDER 4969
onstrate is that “ ‘the performance of counsel was so inade-
quate that it may have affected the outcome of the
proceedings.’ ” Id. at 793-94 (quoting Ortiz v. INS, 179 F.3d
1148, 1153 (9th Cir. 1999)).

Alcala met the first prong of an ineffective assistance of
counsel claim. His lawyer displayed a complete disregard for
his professional obligations. When Alcala’s proceeding was
called by the IJ, his attorney was not even present in the
courtroom. Only by scouring the courthouse did Alcala’s wife
eventually track the attorney down and then attempt to drag
him back to represent her husband. Rather than accompanying
Mrs. Alcala back to the courtroom where his client awaited
potential deportation, the lawyer sent in his stead an “appear-
ance lawyer”—someone who had never worked on Alcala’s
immigration matters. Other than some minimal hemming and
hawing, including admissions that he did not have key docu-
ments in his possession, the “appearance lawyer” offered little
by the way of advocacy. In fact, when the IJ granted the
motion to terminate the proceedings, the substitute lawyer
muttered “I’d like to speak to [the original lawyer] about this
and see what the—” before being cut off by the judge. “Defi-
cient assistance” is a euphemism for what was in fact coun-
sel’s complete abandonment of his duty of representation.5

This deficient performance prejudiced Alcala’s claim,
because he had “ ‘plausible grounds’ ” for relief. Lin v. Ash-
5
The attachment to Alcala’s I-601 application for waiver of inadmissi-
bility states: “The Applicant, Joel Alcala, has resided in the United States
for 13 years. He loves this country greatly. He has lived here since he was
about 18 years old. Thus, all of his adult life has been spent in this coun-
try. His United States citizen wife loves him greatly. She would be devas-
tated if he has to return to Mexico. Thus, if his case is not approved a
United States citizen will suffer greatly.” Alcala also apologized profusely
for trying to enter the United States using false papers, explaining that he
had only gone to Mexico to visit his parents, who were very sick. These
are just a few of the facts a prepared advocate might have employed in
support of his legal arguments.
4970 ALCALA v. HOLDER
croft, 377 F.3d 1014, 1027 (9th Cir. 2004) (quoting United
States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir.
1996)). Had Alcala’s counsel actually attended the hearing, he
could have argued that 8 U.S.C. § 1231(a)(5) did not categori-
cally bar review of the merits of Alcala’s previous application
for a discretionary waiver to apply, filed pursuant to 8 C.F.R.
§ 212.2(e). That this argument existed and could have
affected the outcome of the proceedings is not idle specula-
tion. We, in fact, later accepted this very argument in Perez-
Gonzalez v. Ashcroft, 379 F.3d 783, 784 (9th Cir. 2004), over-
ruled by Duran-Gonzales v. DHS, 508 F.3d 1227 (9th Cir.
2007),6 where Perez-Gonzalez’s counsel persuaded us to
reject a mechanical application of § 1231(a)(5) to automati-
cally prevent review of a petitioner’s claims. Had counsel ful-
filled his duty of representation he may have anticipated this
same argument based on his knowledge of the facts underly-
ing Alcala’s claim—knowledge the “appearance lawyer”
plainly lacked.

That we issued our decision in Perez-Gonzalez two years
after Alcala’s hearing is immaterial. If Perez-Gonzalez were
already established law in the Ninth Circuit, there would be
no doubt that the attorney’s deficient assistance changed the
ultimate result of Alcala’s case. That, of course, is not the test.
The question, rather, is whether adequate advocacy may have
changed the result. Obviously, Perez-Gonzalez’s counsel
fashioned this argument before it became established law, and
a properly prepared attorney should have been able to present
similar arguments at Alcala’s hearing. Failure to provide
effective assistance deprived Alcala of the opportunity to have
this line of argument tested earlier. For that reason, Alcala
6
It is immaterial that Perez-Gonzalez is no longer good law. In Duran-
Gonzales, we overruled Perez-Gonzalez by deferring to a BIA decision
issued after we decided Perez-Gonzalez. See Duran-Gonzales, 508 F.3d
at 1235-42. These subsequent decisions do not alter the fact that Alcala
could have prevailed on the argument we accepted in Perez-Gonzalez at
the time of his hearing, if his counsel had not abandoned him.
 ALCALA v. HOLDER 4971
suffered prejudice due to counsel’s deficient performance, and
his motion to reopen should be granted. Further, the BIA’s
conclusion that Alcala’s “proceedings were terminated by
application of pertinent statutes and regulations, not as the
result of ineffective assistance of counsel,” is clearly errone-
ous.

Indeed, in his motion to reopen Alcala specifically argued
before the BIA that, given the existence of “two conflicting
interpretations of the interplay” between the provisions gov-
erning reinstatement of removal, waiver of inadmissability,
and adjustment of status, the IJ would have been able to grant
the discretionary relief Alcala sought and might have done so
had counsel effectively presented the arguments in Alcala’s
favor. In the BIA decision denying Alcala’s motion to reopen,
the Board strangely characterizes Alcala’s “Motion To
Reopen Based On Ineffective Assistance Of Counsel” as a
motion to reconsider, then asserts that it will nonetheless con-
strue this motion as “one to reopen.” The decision also states
“it is difficult to envision what [Alcala’s counsel] could have
argued at the hearing to avoid termination of proceedings,”
although Alcala’s motion presented the same argument for
granting discretionary relief that we later accepted. See Perez-
Gonzalez, 379 F.3d at 795-96 (“The statutory provisions in
§ 241(a)(5), § 245(i), and § 212(a) should be read to harmo-
nize with one another, rather than allowing § 241(a)(5) to ren-
der the other provisions totally or partially meaningless.”).
The BIA’s cursory, borderline-inaccurate resolution of Alca-
la’s motion to reopen reveals an abuse of discretion that fur-
ther solidifies the appropriateness of our review. Cf.
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)
(“We have long held that the BIA abuses its discretion when
it fails to provide a reasoned explanation for its actions.”).

Alcala’s potentially meritorious ineffective assistance claim
gives us jurisdiction over his appeal from the BIA’s denial of
his motion to reopen because it states a colorable due process
claim that we are authorized to review under 8 U.S.C.
4972 ALCALA v. HOLDER
§ 1252(a)(2)(D). Indeed, we have on several occasions explic-
itly acknowledged our potential jurisdiction over appeals such
as Alcala’s. See Bazua-Cota v. Gonzales, 466 F.3d 747, 748
(9th Cir. 2006) (per curiam) (“This court retains jurisdiction
over petitions for review that raise colorable constitutional
claims or questions of law.”); Ramirez-Perez v. Ashcroft, 336
F.3d 1001, 1004 (9th Cir. 2003) (“We retain jurisdiction to
review constitutional claims, even when those claims address
a discretionary decision.”); cf. Lopez v. Gonzales, 210 F.
App’x 690, 691 (9th Cir. 2006) (unpublished table decision)
(“Byron Lopez . . . petitions for review of the [BIA’s] order
summarily affirming, without opinion, an [IJ’s] order denying
his application for adjustment of status. . . . Lopez’s conten-
tion that the IJ failed to properly weigh the equities is not a
colorable due process claim, and so does not confer jurisdic-
tion.” (internal citations omitted)).

If we relinquish jurisdiction here, it is likely that we rele-
gate the egregious performance of Alcala’s counsel to an
unreviewable purgatory. Though we acknowledged in
Morales-Izquierdo v. Gonzales that “individual petitioners
may raise procedural [due process] defects in their particular
[reinstatement] cases,” it is doubtful that this review would
encompass matters beyond the “narrow and mechanical deter-
minations immigration officers must make”—determinations
that have already been made here—in order to reinstate orders
of removal. 486 F.3d at 496; see also Garcia de Rincon v.
DHS, 539 F.3d 1133, 1137 (9th Cir. 2008) (“[R]eview of the
reinstatement itself is limited to confirming the agency’s com-
pliance with the reinstatement regulations.”).

Surely, if we have jurisdiction over constitutional claims
that arise in connection with the denial of an application for
adjustment of status, we may also hear appeals arising from
the dismissal of such applications to accommodate the rein-
statement of a prior order of removal. The hearing at which
Alcala’s counsel failed him so abysmally resolved conclu-
sively whether Alcala could legally remain in the United
 ALCALA v. HOLDER 4973
States. As the government would have it, however, Alcala
suffered no constitutional violation because reinstatement was
inevitable, but we cannot review his appeal because reinstate-
ment appears not to have been technically finalized. This is
not limbo; it is an incoherent paradox.7 Our power to review
and rectify alleged violations of fundamental rights should not
be so readily discarded. In similar circumstances, facing what
was “effectively an order of removal,” Lolong, 484 F.3d at
1178, we have previously exercised our jurisdiction, and we
should do so here. To require the bureaucratic initiation of
reinstatement prior to our review is to “force resort to an arid
ritual of meaningless form.” Staub v. City of Baxley, 355 U.S.
313, 320 (1958) (addressing technical pleading errors in a
constitutional challenge to a city ordinance). I would hold that
we have jurisdiction over Alcala’s appeal, and, accordingly,
I dissent.

7
The majority’s suggestion that Alcala should have attempted to reopen
the initial removal proceedings, even though a motion to reopen would
have been time-barred, is equally paradoxical.