FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL ANGEL LOPEZ LUVIAN, No. 18-73286
Petitioner,
Agency No.
v. A089-389-099
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Department of Homeland Security
Argued and Submitted June 24, 2022
Pasadena, California
Filed July 19, 2022
Before: Kenneth K. Lee and Daniel A. Bress, Circuit
Judges, and Sidney A. Fitzwater, * District Judge.
Opinion by Judge Bress
*
The Honorable Sidney A. Fitzwater, United States District Judge
for the Northern District of Texas, sitting by designation.
2 LOPEZ LUVIAN V. GARLAND
SUMMARY **
Immigration
Dismissing for lack of jurisdiction Miguel Lopez
Luvian’s petition for review of an order of the Department
of Homeland Security (DHS) reinstating his prior removal
order, the panel held that an immigration petitioner who is
subject to a reinstated order of removal may not challenge
an earlier decision terminating separate removal
proceedings.
Lopez was ordered excluded in 1996 and then unlawfully
reentered the United States. In 2007, DHS served Lopez
with a Notice to Appear (NTA) in immigration court, but
later moved to dismiss the NTA as improvidently issued.
DHS sought dismissal because it could reinstate Lopez’s
1996 removal order through the more streamlined
reinstatement process. The immigration judge denied
DHS’s motions and granted Lopez cancellation of removal,
but the BIA granted DHS’s motion to dismiss and terminated
removal proceedings. DHS later issued an order reinstating
Lopez’s 1996 order, and he filed a petition for review, but
did not challenge the reinstatement decision itself. Instead,
he challenged the BIA’s earlier decision terminating his
removal proceedings.
Because Lopez’s petition challenged only the BIA’s
decision terminating his removal proceedings, which did not
result in a final removal order, the panel concluded that it
lacked jurisdiction to consider the merits of his petition. The
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LOPEZ LUVIAN V. GARLAND 3
panel relied on Alcala v. Holder, 563 F.3d 1009 (9th Cir.
2009), and Galindo-Romero v. Holder, 640 F.3d 873 (9th
Cir. 2011), where petitioners sought review of BIA decisions
terminating removal proceedings, and this court concluded
that it lacked jurisdiction because 8 U.S.C. § 1252(a) limits
the court’s jurisdiction to review of “final orders of
removal,” and no such orders existed in those cases.
Lopez argued that the termination of his proceedings was
effectively the “but for” cause of his reinstatement order
because the termination set the stage for the government to
then issue a reinstatement order. The panel rejected that
contention, observing that the court turned down that same
line of reasoning in Alcala and Galindo-Romero and
explaining that it does not make sense to think of removal
orders as “contingent” upon the termination of removal
proceedings because the government must make a separate,
independent showing to secure reinstatement. The panel
found additional support for its conclusion in the Tenth
Circuit’s decision in Aguilar-Aguilar v. Napolitano,
700 F.3d 1238 (10th Cir. 2012), the only other decision the
panel identified that approximated the situation here.
COUNSEL
Saad Ahmad (argued), Saad Ahmad & Associates, Fremont,
California, for Petitioner.
Rachel L. Browning (argued), Trial Attorney; Claire L.
Workman, Senior Litigation Counsel; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
4 LOPEZ LUVIAN V. GARLAND
OPINION
BRESS, Circuit Judge:
Can an immigration petitioner who is subject to a
reinstated order of removal also challenge an earlier
termination of separate removal proceedings, which did not
itself result in any order of removal? Consistent with our
precedents, we conclude that the answer is no. We dismiss
the petition for lack of jurisdiction.
I
In 1996, petitioner Miguel Lopez Luvian (Lopez), a
native and citizen of Mexico, attempted to enter this country
at the southern border by falsely claiming to be an American
citizen. A few days later, an Immigration Judge (IJ) ordered
Lopez excluded from admission to the United States, and he
was removed to Mexico.
In 1999, Lopez unlawfully reentered the United States
and would remain here for some years. In February 2007,
he applied for adjustment of status to be a legal permanent
resident. In August 2007, U.S. Citizenship and Immigration
Services (USCIS) denied Lopez’s application because he
had falsely represented that he was an American citizen
when he applied for admission in 1996.
In September 2007, the Department of Homeland
Security (DHS) served Lopez with a Notice to Appear
(NTA) in immigration court. DHS charged Lopez with
removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an
immigrant who, at the time of application for admission, was
not in possession of valid entry documents. DHS also
charged Lopez as removable under 8 U.S.C.
§ 1182(a)(6)(C)(ii) as an immigrant who had falsely
LOPEZ LUVIAN V. GARLAND 5
represented himself to be a United States citizen to obtain a
benefit under federal law. Lopez conceded removability on
the first ground but not the second, and he applied for
cancellation of removal under 8 U.S.C. § 1229b(b)(1).
During Lopez’s removal proceedings before an IJ, DHS
twice moved pursuant to 8 C.F.R. § 239.2(a)(6) to dismiss
Lopez’s NTA as improvidently issued. DHS essentially
claimed that it had initiated the removal proceedings in error
and now wanted to dismiss the NTA as unnecessary because
it could simply reinstate Lopez’s prior 1996 removal order
through the more streamlined reinstatement process. See
8 U.S.C. § 1231(a)(5). The IJ denied DHS’s motions to
dismiss the removal proceedings. Ultimately, the IJ
concluded that Lopez was removable on both charged
grounds but granted Lopez cancellation of removal based on
exceptional hardship to his family.
DHS appealed the IJ’s decision to the Board of
Immigration Appeals (BIA) and renewed its motion to
dismiss the NTA as improvidently issued. In October 2014,
the BIA sustained DHS’s appeal, granted its motion to
dismiss the NTA, and terminated Lopez’s removal
proceedings. The BIA held that it was appropriate to dismiss
the NTA as improvidently issued because DHS was
permitted to reinstate Lopez’s prior removal order.
Approximately two years later, in September 2016, DHS
notified Lopez that it was reinstating his 1996 removal order.
Lopez signed the notice and indicated that he did not wish to
contest the agency’s reinstatement determination. He
initially sought withholding of removal and protection under
the Convention Against Torture, but then withdrew his
requests for relief. Lopez’s reinstated removal order became
final on November 20, 2018.
6 LOPEZ LUVIAN V. GARLAND
Within thirty days of that order, Lopez filed a petition for
review. But the petition does not challenge the reinstatement
decision itself. Instead, it purports to challenge the BIA’s
much earlier 2014 decision terminating his removal
proceedings. As Lopez stated in the first line of his opening
brief, he “is seeking judicial review of a decision of the
[BIA] that terminated his removal proceedings on October
23, 2014.” Lopez argues that the BIA erred in that
termination decision, claiming that once DHS initiated
removal proceedings in 2007, it was effectively unable to
withdraw them and was path-bound to the full removal
process and its attendant relief.
II
The petitioner here was subject to reinstatement of his
prior 1996 order of removal because he later illegally
reentered the United States. See 8 U.S.C. § 1231(a)(5);
Lopez Vazquez v. Garland, 17 F.4th 1232, 1234 (9th Cir.
2021). In these circumstances, reinstatement provides a
more streamlined mechanism for effecting a “re-removal.”
“Reinstatement only requires proof that (1) petitioner is an
alien, (2) who was subject to a prior removal order, and
(3) who illegally reentered the United States.” Tomczyk v.
Garland, 25 F.4th 638, 643 (9th Cir. 2022) (en banc)
(alteration omitted) (quoting Morales-Izquierdo v. Gonzales,
486 F.3d 484, 495 (9th Cir. 2007) (en banc)). Once these
three factual predicates are met, “the prior order of removal
is reinstated from its original date and is not subject to being
reopened or reviewed.” 8 U.S.C. § 1231(a)(5). Unlike in
ordinary removal proceedings, an alien subject to a
reinstatement order is ineligible for cancellation of removal.
Vega-Anguiano v. Barr, 982 F.3d 542, 551 (9th Cir. 2019).
Although § 1231(a)(5) “specifically bars relitigation of
the merits of the reinstated removal order,” we have limited
LOPEZ LUVIAN V. GARLAND 7
jurisdiction to consider certain challenges to reinstatement
proceedings. Villa-Anguiano v. Holder, 727 F.3d 873, 877
(9th Cir. 2013); see also Andrade-Garcia v. Lynch, 828 F.3d
829, 833 (9th Cir. 2016). We may determine if the three
“factual predicates” for reinstatement have been met. Villa-
Anguiano, 727 F.3d at 877–78. We may review
“‘constitutional claims or questions of law’ that are ‘raised
in the context of reinstated removal orders.’” Andrade-
Garcia, 828 F.3d at 833 (quoting Garcia de Rincon v. Dep’t
of Homeland Sec., 539 F.3d 1133, 1137 (9th Cir. 2008)).
And 8 U.S.C. § 1252(a)(2)(D) permits us to review a
petitioner’s claim “that he has suffered a ‘gross miscarriage
of justice’ in the initial deportation proceeding.” Vega-
Anguiano, 982 F.3d at 544 (quoting Garcia de Rincon,
539 F.3d at 1138); see also Lopez Vazquez, 17 F.4th at 1234
(noting that the “gross miscarriage of justice” standard is “a
high one”).
In this case, however, Lopez advances none of these
permitted challenges, limited though they may be. Instead,
Lopez purports to challenge only the BIA’s 2014 decision
permitting DHS to terminate his removal proceedings as
improvidently issued, effectively claiming that this decision
paved the way for his eventual reinstatement order. In
essence, Lopez seeks to create a new ground for judicial
review in the reinstatement context beyond those we have
previously recognized. But because Lopez’s petition
challenges only the BIA’s earlier decision terminating his
removal proceedings, which did not result in a final removal
order, we conclude that we lack jurisdiction to consider the
merits of his petition.
The two key precedents that lead us to this conclusion
are Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009), and
Galindo-Romero v. Holder, 640 F.3d 873 (9th Cir. 2011). In
8 LOPEZ LUVIAN V. GARLAND
both cases, a petitioner sought review of a BIA decision
terminating removal proceedings, even though no final
removal order had issued. Both times, we concluded that we
lacked jurisdiction to review the BIA’s termination decision.
Alcala unlawfully entered the United States, was ordered
removed, and then unlawfully reentered. Alcala, 563 F.3d
at 1011. The government initiated new removal proceedings
following the unlawful reentry but then, as here, later moved
to dismiss them so that it could pursue reinstatement of
Alcala’s prior removal order. Id. at 1012. The IJ granted the
government’s request to terminate the removal proceedings,
and the BIA affirmed. Id. Alcala then sought review in our
Court, arguing that his removal proceedings should not have
been terminated. Id. Alcala also filed a motion to reopen
the terminated removal proceedings. Id. After the BIA
denied it, Alcala petitioned for review of that decision, too.
Id. at 1012–13. At the time we resolved Alcala’s petitions,
and “[f]or reasons unknown,” the government had not yet
reinstated Alcala’s removal order. Id. at 1013.
We dismissed Alcala’s petitions for lack of jurisdiction
because “the authorizing statute”—8 U.S.C. § 1252(a)—
“limits our jurisdiction to review of final orders of removal”
and “no such order exists in this case.” Id. at 1011. We
explained that because “an order dismissing removal
proceedings is not an order of removal, we lack jurisdiction
over Alcala’s petitions for review.” Id. at 1013. We further
noted that “[w]hen, and if, the government chooses to
reinstate the [prior] expedited order of removal, Alcala may
seek whatever judicial remedies are afforded to an alien in
reinstatement proceedings.” Id. at 1014.
Galindo-Romero presented a similar situation. Galindo
unlawfully entered the United States, was placed in removal
proceedings, and sought cancellation of removal. Galindo-
LOPEZ LUVIAN V. GARLAND 9
Romero, 640 F.3d at 875. Galindo then left the United States
and then attempted to reenter using false pretenses. Id. An
expedited removal order was issued against him, and he was
removed. Id. Galindo then unlawfully reentered again and
sought to resume his original removal proceedings, in which
he had been seeking cancellation of removal. Id. at 876. The
government informed the IJ of Galindo’s expedited removal
order, which had not yet been reinstated. Id. The IJ
terminated the removal proceedings based on the expedited
removal order, and the BIA dismissed Galindo’s appeal. Id.
at 876–77. Galindo then petitioned for review, challenging
the termination decision. Id. at 877.
We concluded that we lacked jurisdiction to reach the
merits of the petition. As in Alcala, we held that we
“lack[ed] 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.” Id.
Galindo argued that the BIA’s termination order should have
been regarded as “effectively a final order of removal
because the impediment to the [prior] order’s enforcement
has been eliminated.” Id. at 878 (alteration in original)
(quotations omitted). But Galindo-Romero rejected that
argument as “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.” Id. (quotations and alterations omitted).
The reason Galindo’s premise was faulty was because the
reinstatement of his prior removal order was “not
automatic”: the government was required to undertake
various steps to secure a reinstatement order, which it had
yet to do. Id. at 879–80 (quotations omitted).
The difference between this case and Alcala and
Galindo-Romero is that here, the government has secured a
10 LOPEZ LUVIAN V. GARLAND
reinstatement order against Lopez. That would give us
jurisdiction to consider certain challenges to that order if
Lopez had raised them, as we discussed above. But because
Lopez only challenges the earlier termination of removal
proceedings that did not result in a final order of removal,
we think the logic of Alcala and Galindo-Romero tells us
that we lack jurisdiction to consider Lopez’s petition for
review.
As in Alcala and Galindo-Romero, the termination of
Lopez’s removal proceedings was not itself a final order of
removal, and our jurisdiction is limited to such orders. See
8 U.S.C. § 1252(a); Acala, 563 F.3d at 1013; Galindo-
Romero, 640 F.3d at 877. Lopez responds that the
termination of his removal proceedings here was effectively
the “but for” cause of his later reinstatement order because
the termination of his removal proceedings set the stage for
the government to then issue a reinstatement order. But we
turned down that same line of reasoning in Alcala and
Galindo-Romero.
Those cases specifically rejected the petitioners’
assertions that the termination of their removal proceedings
was reviewable because a reinstated removal order was
foreordained. Alcala, 563 F.3d at 1013; Galindo-Romero,
640 F.3d at 878–79. We stressed that reinstatement is not
“automatic” and instead requires the government to follow
certain procedures to obtain a reinstated removal order.
Alcala, 563 F.3d at 1013; Galindo-Romero, 640 F.3d at 879–
80. Because the government must make a separate,
independent showing to secure reinstated removal orders, it
does not make sense to think of them as “contingent” upon
the earlier termination of separate removal proceedings. The
termination of removal proceedings does not produce a
reinstated removal order. Indeed, Galindo-Romero held that
LOPEZ LUVIAN V. GARLAND 11
we lacked jurisdiction because the termination of removal
proceedings “resulted in no order of removal.” 640 F.3d at
877 (emphasis added).
The same is true here. We have never held that our
ability to review earlier rulings on which a final removal
order is “contingent” (such as an antecedent legal ruling, see,
e.g., Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir.
2014)), extends so far as to permit review of prior orders
terminating separate removal proceedings that do not result
in reinstated removal orders (or, indeed, any final order of
removal). To the contrary, undertaking that review here
would be at odds with the basic logic of Alcala and Galindo-
Romero. The reinstatement process is a separate legal
proceeding from any aborted removal processes. See Alcala,
563 F.3d at 1013; Galindo-Romero, 640 F.3d at 877. Our
ability to review certain aspects of the former does not give
us jurisdiction over the latter.
We find additional support for our conclusion in the
Tenth Circuit’s decision in Aguilar-Aguilar v. Napolitano,
700 F.3d 1238 (10th Cir. 2012), the only other decision we
have identified that approximates the situation here. In
Aguilar-Aguilar, DHS commenced removal proceedings
against the petitioner and then sought to dismiss them as
improvidently entered so that it could instead seek
petitioner’s expedited removal based on his conviction for
an aggravated felony. Id. at 1240. DHS then secured a final
order of removal through the expedited removal process. Id.
In a petition for review, the petitioner claimed that the IJ had
erred in terminating the original (non-expedited) removal
proceedings. Id. at 1241, 1243.
The Tenth Circuit “summarily dispos[ed]” of this
argument. Id. at 1243. It explained that “because the IJ’s
[termination] decision did not result in a final order of
12 LOPEZ LUVIAN V. GARLAND
removal, that decision was not and is not subject to judicial
review.” Id. at 1243. That was true even though
“[u]ndoubtedly,” the termination of the original removal
proceedings in some sense “resulted in” the later institution
of separate expedited removal proceedings. Id. Although
Aguilar-Aguilar did not involve a later reinstatement order,
its reasoning is consistent with our reasoning here, and with
the broader reasoning in Alcala and Galindo-Romero on
which we have relied.
* * *
For the foregoing reasons, the petition for review is
DISMISSED.