RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0250p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JOSE DIAZ DE JESUS CASILLAS,
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Petitioner,
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No. 09-3831
v.
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Respondent. -
ERIC H. HOLDER, JR., Attorney General,
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On Petition for Review from a Final Order
of the Department of Homeland Security.
No. A 099-387-648.
Argued: July 25, 2011
Decided and Filed: September 2, 2011
Before: SUTTON and COOK, Circuit Judges; GREER, District Judge.*
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COUNSEL
ARGUED: Brian J. Miles, D’LUGE, MILES, MILES & CAMERON, P.L.C., Mount
Clemens, Michigan, for Petitioner. Margot L. Carter, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian
J. Miles, Mayra Lorenzana-Miles, D’LUGE, MILES, MILES & CAMERON, P.L.C.,
Mount Clemens, Michigan, for Petitioner. Margot L. Carter, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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OPINION
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SUTTON, Circuit Judge. Jose Diaz De Jesus Casillas seeks review of the 2009
enforcement of a 1996 order of removal. We dismiss the petition for lack of jurisdiction.
*
The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
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No. 09-3831 Casillas v. Holder Page 2
I.
In 1995, the immigration agency of its day, the Immigration and Naturalization
Service, served Casillas with papers alleging he had no right to be in the United States.
Casillas admitted he was deportable and waived any challenge to the charge. On
September 4, 1996, an immigration judge ordered Casillas deported unless he voluntarily
left the United States within the next two months—by November 4, 1996.
On May 12, 2009, officers with the Department of Homeland Security found
Casillas in the United States and detained him in connection with the 1996 order of
removal. Casillas sought a stay of removal, claiming he had departed before the
November 1996 voluntary-departure deadline, precluding his conditional order of
removal from becoming a final order of removal under the terms of the order. In support
of his application, he presented an expired Mexican passport and a marriage certificate,
both issued in Mexico in 1998.
On June 2, 2009, the Department of Homeland Security denied Casillas’s
application for a stay of removal. The reviewing officer reasoned that the information
in the application, dating from 1998, failed to establish that Casillas left the United
States before the November 4, 1996 deadline, meaning that the conditional order of
removal, conditioned on Casillas leaving the country before the November 1996
deadline, became a final order of removal.
On June 8, 2009, Casillas filed a motion for a speedy bond hearing with an
immigration judge, seeking an opportunity to show that he left the United States before
November 4, 1996, and requesting an opportunity to post a bond and delay deportation
in the interim. The Department of Homeland Security deported Casillas to Mexico on
June 9. On June 11, an immigration judge dismissed Casillas’s bond-hearing motion for
lack of jurisdiction because he was no longer in the United States.
Casillas did not seek review of that decision in the Board of Immigration
Appeals. He instead filed a petition for review in our court, claiming he was unlawfully
No. 09-3831 Casillas v. Holder Page 3
removed from the United States because he fully complied with the 1996 voluntary-
departure order.
II.
Our first order of business is jurisdiction. In the immigration field, Congress has
granted the federal courts of appeals “sole and exclusive” jurisdiction to review “final
order[s] of removal.” 8 U.S.C. § 1252(a)(1), (a)(5); Mu Ju Li v. Mukasey, 515 F.3d 575,
577 (6th Cir. 2008); see also 8 U.S.C. § 1252(a)(2), (b)(9). In this instance, we lack
jurisdiction over any of the three actions taken by the immigration authorities with
respect to Casillas.
First, Casillas filed a petition to stay his removal with the U.S. Immigration and
Customs Enforcement, a division of the Department of Homeland Security. We do not
have jurisdiction over denials of petitions to stay removal. Cheng Fan Kwok v. INS, 392
U.S. 206, 212 (1968); see also Shaboyan v. Holder, — F.3d —, No. 11-71574, 2011 WL
2557658 (9th Cir. June 29, 2011); Lemos v. Holder, 636 F.3d 365, 367 (7th Cir. 2011);
Gottesman v. INS, 33 F.3d 383, 386–87 (6th Cir. 1994).
Second, Casillas filed a motion with an immigration judge to obtain a speedy
bond hearing. The grant or denial of a bond is unreviewable. See 8 U.S.C. § 1226(e)
(“No court may set aside any action or decision by the Attorney General under this
section regarding . . . the grant, revocation, or denial of bond or parole.”). Casillas at any
rate never appealed the immigration judge’s decision to the Board of Immigration
Appeals, a precondition to further review here. 8 U.S.C. § 1252(d)(1); Abdulai v.
Ashcroft, 239 F.3d 542, 548–49 (3d Cir. 2001).
Third, when an immigration judge entered a conditional order of removal against
Casillas in 1996, which was a reviewable final order of removal, Casillas opted not to
challenge it. He instead agreed that he was subject to deportation. Any challenge to that
order today would be time-barred and unexhausted to boot. See 8 U.S.C. § 1252(b)(1);
(d); Prekaj v. INS, 384 F.3d 265, 267–68 (6th Cir. 2004) (time limit is jurisdictional).
No. 09-3831 Casillas v. Holder Page 4
Casillas cannot circumvent these limitations by claiming that the immigration
authorities’ act of enforcing the 1996 order in 2009—by deporting him—amounted to
a new final order of removal or in his words a “de facto final order of removal.” Casillas
Br. at 9. His position blurs the distinction between the enforcement of a removal order
and its issuance. Enforcement of a removal order—deportation—happens after a final
order of removal has been issued and either upheld or, as here, not challenged. To say
that applicants may challenge final orders of removal and separately challenge
enforcement of those orders overrides the language of the statute, which covers final
“orders” of removal, not enforcement of those orders. 8 U.S.C. § 1252 (a)(5); (g).
This position also threatens to unwind the “final[ity]” requirement. If the
enforcement of an order, no less than the issuance of an order, may be reviewed, it is fair
to wonder what the relevant “final” act is, threatening to wreak havoc with the
reticulated requirements for exhaustion and review of immigration claims.
These problems go away if we respect the language of the statute, which says that
Congress granted power to the courts of appeals to review final orders of removal, not
the enforcement of final orders of removal. 8 U.S.C. § 1252(a)(5); (b)(1); (g). When
immigration authorities found Casillas still in the country in 2009, they enforced the
1996 order of removal—a belated enforcement to be sure, but an enforcement no less,
and a delay at any rate caused by the actions of a fugitive, not the actions of the
immigration authorities. Just as Casillas could not have waived review of a 2008 final
order of removal, then challenged enforcement of it in 2009, so he cannot do the same
with respect to the 1996 order of removal, one he opted not to challenge within the time
allotted for doing so.
In some circumstances, it is true, we have rejected jurisdictional arguments by
the government premised on its own conduct, such as the deportation of an individual
while a cognizable and otherwise-reviewable petition was pending before the Board of
Immigration Appeals. When the government deported Maria Isabel Madrigal while her
motion to reopen was pending before the Board, we held that its subsequent withdrawal
of her motion (on the ground she had been deported) did not deprive us of jurisdiction
No. 09-3831 Casillas v. Holder Page 5
over the motion but instead amounted to a final order of removal. Madrigal v. Holder,
572 F.3d 239, 243 (6th Cir. 2009). We did something similar in Villegas de la Paz v.
Holder, 640 F.3d 650, 653–655 (6th Cir. 2010), when we exercised jurisdiction over a
late-filed reinstatement order given that the government caused the delay. Yet in those
cases, unlike this one, the petitioner had filed a motion that was otherwise reviewable
by the Board and court of appeals, prompting us to treat the government’s deportation
or delay as a final order of removal. The same simply is not true of Casillas’s motions
to stay deportation and to obtain a bond, as shown above. That leaves no order, other
than the long-ago, time-barred 1996 order, to review, requiring us to fall back on the
general rule that the physical act of deportation is not a final order of removal but the
enforcement of an order of removal.
None of this means that immigrants in Casillas’s position have no recourse.
There is a potential administrative and judicial answer to Casillas’s claimed predicament.
Administratively, Casillas’s key allegation is that he left the country before his
voluntary departure deadline in 1996. If that is true, a final deportation order against
him no longer exists, as the parties agree: Under its terms, the 1996 conditional order
of removal became a final order of removal only if the immigrant failed to leave the
country before the listed date. See Government Br. at 4; Casillas Reply Br. at 1. When
Casillas raised this argument with an officer of the Department of Homeland Security,
however, he relied on little more than his own say-so. He presented two documents—an
expired passport and a marriage certificate—which suggested only that he was in
Mexico two years after the conditional order of removal, and indeed they did not even
prove that, as it is not clear whether such documents may be obtained from abroad. If
Casillas truly left the country before the 1996 deadline, nothing prevented him from
proving it to the immigration authorities. A stamped passport works, as do other
methods of proof: plane tickets, credit card receipts, photos of the individual and the
most fail-safe method of all: an appearance at the local U.S. consulate in the individual’s
home country, confirming the individual’s presence on a given date. See, e.g., Form G-
146, Departure Verification.
No. 09-3831 Casillas v. Holder Page 6
Judicially, two courts of appeals have concluded that an immigrant claiming he
complied with an order of voluntary departure, as Casillas claims, may challenge the
existence of a removal order in a § 2241 habeas proceeding in district court. See Madu
v. Attorney General, 470 F.3d 1362, 1367 (11th Cir. 2006) (district court retains habeas
jurisdiction where petitioner challenged “whether there is a removal order at all”);
Kumarasamy v. Attorney General, 453 F.3d 169, 172 (3d Cir. 2006) (same). No court
of appeals has reached a contrary conclusion on this point, yet Casillas did not invoke
this procedure.
When all is said and done, Casillas simply has not sought review of a final order
of removal. And for that reason, we have no jurisdiction over his petition.
III.
For these reasons, we dismiss the petition for lack of jurisdiction.