Hamilton v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 1, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

DO NA LD H AM ILTON , and JAM ES
H A MILTO N ,

Petitioners,

v. No. 05-9560
ALBERTO GONZA LES,

Respondent.

PETITION FOR REVIEW OF AN O RDER FRO M THE
BOAR D O F IM M IGR ATION APPEALS
(AG ENCY NO . A78 899 834)

Laura L. Lichter, Lichter & Associates, P.C., Denver, Colorado, for Petitioners-
Appellants.

Thomas B. Fatouros, Attorney (Peter D. Keisler, Assistant Attorney General, and
M ary Jane Candaux, Senior Litigation Counsel, with him on the brief), Office of
Immigration Litigation, United States Department of Justice, Civil Division,
W ashington, D.C., for Respondent-Appellee.

Before O’BRIEN, EBEL, and TYM KOVICH, Circuit Judges.

T YM K O VIC H, Circuit Judge.
 This appeal raises the question of our jurisdiction to review a decision by

the Bureau of Immigration Appeals (BIA) affirming the revocation of an

immigrant visa. Because we lack jurisdiction to review a visa revocation

decision, we GRANT the government’s motion to dismiss and DISM ISS this

appeal.

I. Background

Petitioner Donald Hamilton, a U nited States citizen, sought a visa on behalf

of his adopted son, James, a native of South Korea. A regional director of the

former Immigration and Naturalization Service (INS) granted M r. Hamilton’s

petition on August 17, 2001. After the Attorney General filed objections, the

director revoked James’s visa three months later based on a finding that James

was adopted after the age of sixteen, the statutory cut-off for a valid adoption for

immigration purposes under the Immigration and Nationality Act (IN A).

W hile M r. Hamilton admits James w as adopted after the statutory age cut-

off, he contends the state court adoption decree— which was issued nunc pro tunc

to a date prior to James’s sixteenth birthday— satisfies the requirements of the

INA. 1 In revoking James’s visa, the director concluded a nunc pro tunc decree is

1
Follow ing approval of the visa petition, the H amiltons applied to adjust
James’s status to that of a permanent resident. The issue of James’s effective
adoption date arose during the government’s review of this application. A
W yoming state court had previously finalized the adoption in an order dated
January 16, 2001, when James was seventeen. Even though adoption proceedings
were commenced after James’s sixteenth birthday, the W yoming court issued the
(continued...)

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not acceptable for establishing the age of adoption for immigration purposes. The

BIA affirmed on appeal, and Hamilton now seeks direct review from this Court.

II. Discussion

Before we can reach the merits of Hamilton’s claim, we must resolve

whether we have jurisdiction to do so. “We have jurisdiction to determine our

jurisdiction.” Schroeck v. Gonzales, 429 F.3d 947, 950 (10th Cir. 2005).

Hamilton claims we may assert jurisdiction over his claim under either the INA or

the Administrative Procedures Act (APA).

W hile recognizing that the IN A traditionally limited circuit court

jurisdiction to final orders of removal, 8 U .S.C. § 1252(a)(1), Hamilton argues a

new provision of the INA enacted pursuant to the REAL ID Act of 2005 expands

our jurisdiction to hear “constitutional claims and questions of law ” that arise in

otherw ise non-reviewable immigration actions. 8 U.S.C. § 1252(a)(2)(D).

Alternatively, Hamilton contends the APA provides a separate jurisdictional grant

over his claims.

A fter describing the general basis for our jurisdiction under the INA, we

address Hamilton’s arguments in turn.

1
(...continued)
adoption decree nunc pro tunc to September 1, 1999, a date before James’s
sixteenth birthday. M r. Hamilton argues the adoption was legally effective before
James’s sixteenth birthday and thus in conformity with the IN A.
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A . A ppellate Jurisdiction under the INA

Under the INA, the general grant of circuit court jurisdiction is found in 8

U.S.C. § 1252(a)(1), which establishes “[j]udicial review of a final order of

removal.” The INA further defines an “order of removal” as “the order of the

special inquiry officer [an immigration judge]. . . . concluding that the alien is

deportable or ordering deportation.” 8 U.S.C. § 1101(a)(47)(A). 2 An order of

removal becomes final when the B IA either (1) affirms an immigration judge’s

removal decision, or (2) w hen the time for appealing that decision has expired. 8

U.S.C. § 1101(a)(47)(B). None of these requirements has been satisfied in this

case. 3

W e construe § 1252(a)(1) narrowly, and have consistently found we lack

jurisdiction to review immigration decisions that fall short of a final removal

order. See, e.g., Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006)

(“W e have general jurisdiction to review only a final order of removal and there

2
The terms removable and deportable are synonymous. As we explained
in Sosa-Valenzuela v. Gonzales, — F.3d— , No. 05-9582, W L _____ (10th Cir.
M ay 1, 2007),

in 1996, when the Illegal Immigration Reform and Immigrant
R esponsibility A ct (IIR IR A) amended the relevant statutes, the term “order
of removal” replaced “order of deportation” throughout most, but not all, of
the United States Code. See Soberanes v. Com fort, 388 F.3d 1305, 1308
n.1 (10th Cir. 2004), Tang v. Ashcroft, 354 F.3d 1192, 1194 n.3 (10th Cir.
2003). The two terms are coterminous when interpreting the statute.
3
It is not even clear whether removal proceedings have been initiated thus
far in this case. At oral argument, Hamilton’s counsel represented that removal
proceedings were underway but nothing in the record reflects this.
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is no final order until the BIA acts.”); Abiodun v. Gonzales, 461 F.3d 1210, 1217

(10th Cir. 2006) (refusing jurisdiction to consider alien’s challenge to denial of

naturalization petition because decision was rendered outside the scope of

removal proceedings); Tsegay v. Ashcroft, 386 F.3d 1347, 1353 (10th Cir. 2004)

(§ 1252(a)(1) did not confer appellate jurisdiction over procedural challenge to

BIA’s decision affirming immigration judge’s denial of an asylum application).

No immigration judge has entered an order of removal in this case, much

less has the BIA affirmed such a decision. All we have is a visa revocation order

issued by the Regional Director at the Nebraska Service Center of the former INS,

affirmed by the BIA on appeal. 4 W hile visa status is undoubtedly relevant to

questions of removal or admissibility, a visa revocation order is not a final order

of removal.

Because no order of removal has been entered in this case, absent some

other statutory basis for jurisdiction, we lack jurisdiction under the IN A to

entertain this appeal.

B . T he Effect of Section 1252(a)(2)(D)

Hamilton nevertheless contends that the REAL ID Act of 2005, Pub. L. No.

109-13, 119 Stat. 231, expanded circuit court jurisdiction under the IN A.

4
The Secretary of H omeland Security has authority to approve a visa
petition pursuant to 8 U.S.C. § 1154. Under § 1155, the Secretary “may, at any
time, for what he deems to be good and sufficient cause” revoke an approved
petition.

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Specifically, he urges us to base our jurisdiction on 8 U.S.C. § 1252(a)(2)(D),

which Congress amended in 2005 to permit judicial review of “constitutional

claims and questions of law .” The section provides in full:

Nothing in subparagraph (B) or (C), or in any other provision of this
Act (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
appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D) (emphasis added).

Hamilton argues § 1252(a)(2)(D ) should be construed as applying to

removal and non-removal decisions alike, thus providing jurisdiction over the

legal question presented here: whether a nunc pro tunc adoption decree issued by

a state court is entitled to controlling weight under the INA. W e disagree. In our

view, a final order of removal is a prerequisite to the application of

§ 1252(a)(2)(D). The amended provision did not confer an expanded grant of

jurisdiction but merely confirmed our authority to review “constitutional claims

and questions of law,” but only after a final order of removal has been entered.

W e reach this conclusion for three reasons.

First, § 1252(a)(2)(D) is naturally read as a limitation on the broad

jurisdiction stripping provisions found in §§ 1252(a)(2)(B) and (C). By its plain

language, however, the remaining limits on judicial review in “this section”—

i.e., § 1252— still apply. See § 1252(a)(2)(D) (“Nothing in . . . any other

provision of this A ct (other than this section) which limits or eliminates judicial

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review, shall be construed as precluding review of constitutional claims or

questions of law.”). Since § 1252(a)(1) limits circuit court review to a “final

order of removal,” such an order is a predicate to our authority to review

constitutional claims or questions of law stemming from the agency act at issue.

The plain language of § 1252 is further supported by our case law. For

example, in construing the scope of § 1252(a)(2)(D ) in Perales-Cumpean v.

Gonzales, 429 F.3d 977 (10th Cir. 2005), we explained it was only “made

applicable to cases in which the final administrative order of removal,

deportation, or exclusion was issued before, on, or after the date of enactment” of

the REAL ID Act. Id. at 981–82 n.4 (emphasis added) (internal quotation marks

omitted). Similarly, in Schroeck v. Gonzales, 429 F.3d 947 (10th Cir. 2005), w e

held that § 1252(a)(2)(D ) provided jurisdiction to reach legal questions, but only

in the context of a final administrative order of removal. Finally, in Abiodun v.

Gonzales, 461 F.3d 1210, 1216–17 (10th Cir. 2006), we concluded that

§ 1252(a)(2)(D) did not preserve appellate jurisdiction over constitutional or legal

challenges to the denial of an alien’s naturalization petition because naturalization

decisions are rendered outside the course of removal proceedings. 5

5
Hamilton suggests that § 1252(a)(5) supports his argument that legal
claims can be reviewed absent a final order, pointing to language that states: “For
purposes of this chapter, in every provision that limits or eliminates judicial
review or jurisdiction to review , the terms ‘judicial review ’ and ‘jurisdiction to
review’ include habeas corpus review . . . , and review pursuant to any other
provision of law .” 8 U.S.C. § 1252(a)(5). He argues this provision “makes it
absolutely clear that the scope of the statute extends beyond [] final removal
(continued...)
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 Second, although Hamilton suggests the REAL ID amendment to

§ 1252(a)(2)(B), which added the language “regardless of whether the judgment,

decision, or action is made in removal proceedings,” supports expanded judicial

review, that provision actually bolsters our view that an order of removal is a

necessary condition to our jurisdiction. Section 1252(a)(2)(B) strips jurisdiction

over decisions committed to agency discretion regardless of whether the decision

is made in the removal process. 6 But that provision does not alter the fact that our

jurisdictional grant comes from § 1252(a)(1) and, as we have discussed,

§ 1252(a)(1) requires an “order of removal.” Thus, since a visa revocation

decision is a discretionary act, our jurisdiction to review it is precluded by the

plain meaning of § 1252(a)(2)(B) except when (1) the decision implicates

5
(...continued)
orders.” Pet. Response to M otion to Dismiss at 7. This reading is incorrect.
Section 1252(a)(5) merely confirms that the jurisdiction stripping provisions in
§§ 1252(a)(2)(B) and (C) apply in removal and non-removal actions alike. It does
not support an expanded grant of jurisdiction.
6
A visa revocation decision ‘may’ be made by the Secretary of Homeland
Security (or his designee) “at any time, for what he deems to be good and
sufficient cause.” 8 U.S.C. § 1155. Employing conditional terms such as ‘may’
and ‘at any time,’ the statute uses language that is “indicative of administrative
discretion.” Jilin Pharm aceutical USA, Inc. v. Chertoff, 447 F.3d 196, 203 (3d
Cir. 2006). See also id. at 204 (by authorizing visa revocation for “good and
sufficient cause,” the statute requires the agency to make a judgment call);
El-Khader v. M onica, 366 F.3d 562, 567 (7th Cir. 2004) (“[T]he determination of
whether there exists ‘good and sufficient cause’ [] necessarily is highly
subjective, and there exist no strict standards for making this determination.”)
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constitutional or legal questions, and (2) there is a final order of removal.

Schroeck v. Gonzales, 429 F.3d at 981–82. 7

Finally, the legislative history of REAL ID provides useful context that

Congress intended § 1252(a)(2)(D) review to become effective only upon the

appeal of a final order of removal. The House Report accompanying the proposed

revisions to the statute stated:

Under section [1252(a)(2)(D)], all aliens who are ordered removed by
an immigration judge will be able to appeal to the BIA and then raise
constitutional and legal challenges in the courts of appeals . . .

H.R. Rep. 109-72, 174, 2005 U.S.C.C.A.N. 240 (emphasis added). M ore broadly,

the legislative history indicates the changes to § 1252(a)(2)(D ) w ere intended to

restore limited judicial review for criminal aliens facing removal, as

§ 1252(a)(2)(C) generally forecloses that right: “[N]o court shall have jurisdiction

to review any final order of removal against an alien who is removable by reason

of having committed a criminal offense covered in [the following sections] of this

title.” As the H ouse Conference Report on REAL ID explains,

Unlike AEDPA and IIRIRA, which attempted to eliminate judicial
review of criminal aliens’ removal orders section [1252(a)(2)(D )] w ould
give every alien one day in the court of appeals, satisfying

7
Some cases suggest a petitioner’s eligibility for the visa in the first
instance is a legal question under § 1252(a)(2)(D) over w hich w e have plenary
review upon the entry of a final order of removal. See, e.g., Pinho v. Gonzales,
432 F.3d 193, 203 (3d Cir. 2005) (carving out a distinction between the agency’s
power to grant or deny adjustment of status, which is discretionary, and its
predicate determination of one’s eligibility for adjustment of status, which is a
legal question susceptible to judicial review). That question is not before us since
we conclude we lack jurisdiction.
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 constitutional concerns. The Supreme Court has held that in
supplanting the writ of habeas corpus with an alternative scheme,
Congress need only provide a scheme which is an “adequate and
effective” substitute for habeas corpus. By placing all review in the
courts of appeals, [REAL ID] would provide an “adequate and
effective” alternative to habeas corpus.

H.R. Rep. 109-72, 175, 2005 U.S.C.C.A.N. 240 (internal citations omitted).

These provisions support the conclusion that § 1252(a)(2)(D) allows judicial

review over constitutional and legal challenges only when raised on appeal of a

final order of removal.

In sum, the statutory language, the case law , and the legislative history all

make clear that our authority to review constitutional claims and questions of law

under § 1252(a)(2)(D) is constrained by the grant of jurisdiction provided by

§ 1252(a)(1), which requires a final order of removal. Because a visa revocation

decision is not a final order of removal, we lack jurisdiction under the INA to

consider Hamilton’s claim.

C. APA Review

In the alternative, Hamilton argues that jurisdiction over his appeal is

conferred by the generic provisions of the APA authorizing judicial review of

agency action. 5 U.S.C. § 702. However, while the APA can provide a party

with a right of judicial review of agency action, it does not confer independent

jurisdiction to the circuit courts. See, e.g., Fostvedt v. United States, 978 F.2d

1201, 1203 (10th Cir. 1992) (the APA “does not create an independent grant of

jurisdiction for the review of agency actions”). Rather, a party seeking APA

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review in federal court must identify a jurisdictional grant from either the

enabling statute or one of the general jurisdiction provisions under Title 28 of the

United States Code. See, e.g., Califano v. Sanders, 430 U.S. 99, 104–07 (1977).

The INA is the relevant enabling statute in this case (i.e., the agency

revoked James Hamilton’s visa pursuant to authority provided by the INA), and

the IN A limits circuit court jurisdiction to final orders of removal. See

§ 1252(a)(1). M oreover, the general jurisdiction statutes confer original

jurisdiction over challenges to agency actions to the district courts, or to the

Federal Circuit. See 28 U.S.C. § 1331 and § 1296, respectively. By contrast,

circuit court jurisdiction is generally limited to review of final district court

decisions and some interlocutory appeals. See 28 U.S.C. § 1291 and § 1292,

respectively. Since we are faced with neither an appeal of a final district court

decision nor an interlocutory appeal, we lack general jurisdiction to entertain this

claim . M oreover, it follow s that challenges to agency action under the INA

seeking APA review must be filed in the appropriate district court or the Federal

Circuit. 8

Accordingly, the APA does not supply a basis for jurisdiction of this

appeal.

8
Hamilton’s reliance on a Sixth Circuit case in support of APA jurisdiction
reinforces this point. In Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006),
petitioners appealed the district court’s dismissal of their APA claims against
federal immigration officials. Bangura does not support the proposition that the
circuit courts have original appellate jurisdiction under the APA in the face of the
limitations contained in § 1252.
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 IV. Conclusion

For the foregoing reasons, this appeal is dismissed for lack of jurisdiction.

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