Miguel Lopez Luvian v. Merrick Garland

Citation: Not availableDocket: 18-73286

Court: Court of Appeals for the Ninth Circuit; July 19, 2022; Federal Appellate Court

Original Court Document: View Document

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Miguel Lopez Luvian's petition for review of a Department of Homeland Security (DHS) order reinstating his prior removal order was dismissed for lack of jurisdiction. The Ninth Circuit panel, consisting of Judges Kenneth K. Lee, Daniel A. Bress, and District Judge Sidney A. Fitzwater, ruled that an immigration petitioner under a reinstated removal order cannot challenge a prior decision that terminated separate removal proceedings. Lopez had been excluded in 1996, unlawfully reentered, and was served with a Notice to Appear (NTA) in 2007. DHS later moved to dismiss the NTA, opting instead to reinstate the 1996 removal order. Although an immigration judge initially granted Lopez cancellation of removal, the Board of Immigration Appeals (BIA) allowed DHS's motion to dismiss and terminated the proceedings. Lopez's subsequent petition did not contest the reinstatement but targeted the BIA's termination decision. The panel determined it lacked jurisdiction as the BIA's action did not result in a final removal order, aligning with precedents in Alcala v. Holder and Galindo-Romero v. Holder, which similarly found no jurisdiction over challenges to BIA terminations. The panel rejected Lopez's argument that the termination was a prerequisite for the reinstatement order, noting that the government must independently establish grounds for reinstatement. The panel’s conclusion was further supported by the Tenth Circuit’s ruling in Aguilar-Aguilar v. Napolitano.

In 1996, Miguel Lopez Luvian, a Mexican citizen, attempted to enter the U.S. by falsely claiming to be a citizen. An Immigration Judge (IJ) subsequently ordered his exclusion, leading to his removal to Mexico. After unlawfully reentering the U.S. in 1999, Lopez applied for legal permanent residency in 2007, but his application was denied due to his prior false claim of citizenship. Following this, the Department of Homeland Security (DHS) issued a Notice to Appear (NTA) against him, charging him with removability under specific U.S. immigration laws due to lack of valid entry documents and false representation of citizenship. Lopez conceded to the first charge but contested the second and sought cancellation of removal based on family hardship. 

During proceedings, DHS sought to dismiss the NTA, claiming it had been issued in error and could instead reinstate Lopez's earlier removal order. The IJ denied the motions to dismiss, ultimately finding Lopez removable on both charges but granting cancellation of removal. DHS appealed, and the Board of Immigration Appeals (BIA) later sustained the appeal, dismissed the NTA, and terminated the removal proceedings, allowing DHS to reinstate the original 1996 removal order. 

In September 2016, DHS notified Lopez of the reinstatement, which he did not contest, and he subsequently withdrew his requests for relief. The reinstated removal order became final on November 20, 2018. Lopez then filed a petition for review not challenging the reinstatement but contesting the BIA's earlier decision to terminate his removal proceedings, arguing that DHS was bound to continue with the full removal process after initiating it in 2007. The BIA's decision to allow reinstatement of the 1996 removal order was upheld, as reinstatement is a streamlined process for re-removal following illegal reentry.

Reinstatement of a removal order requires proof that the petitioner is (1) an alien, (2) subject to a prior removal order, and (3) has illegally reentered the United States. Once established, the prior removal order is reinstated from its original date and is not subject to reopening or review. Aliens under a reinstatement order are ineligible for cancellation of removal. Although the merits of the reinstated removal order cannot be relitigated, limited jurisdiction exists to assess whether the factual predicates for reinstatement have been met, as well as to review constitutional claims or legal questions related to reinstated removal orders. Furthermore, jurisdiction is permitted to review claims of a "gross miscarriage of justice" in the original deportation proceeding. 

In this case, however, the petitioner, Lopez, challenges only the BIA’s 2014 decision that allowed DHS to terminate his removal proceedings, which does not constitute a final removal order. The court concludes it lacks jurisdiction to review this decision based on precedents from Alcala v. Holder and Galindo-Romero v. Holder, where similar challenges to BIA decisions terminating removal proceedings were dismissed for lack of jurisdiction since no final removal order was issued.

The government may reinstate a prior expedited order of removal, allowing individuals like Alcala to seek judicial remedies in reinstatement proceedings. In Galindo-Romero's case, after unlawfully reentering the U.S. following a removal order, the Immigration Judge (IJ) terminated his removal proceedings based on an expedited removal order that had not been reinstated, which the Board of Immigration Appeals (BIA) dismissed upon appeal. Galindo petitioned for review, but jurisdiction was denied because the BIA's termination did not result in a final order of removal. Galindo's argument that the termination order should be seen as effectively a final order was rejected, as reinstatement of a removal order is not automatic and requires government action. 

In contrast to Alcala and Galindo-Romero, Lopez has a secured reinstatement order, giving jurisdiction for challenges if properly raised. However, Lopez only contests the earlier termination of his proceedings, which did not result in a final order of removal, leading to a lack of jurisdiction for his petition. Lopez argues that the termination facilitated his reinstatement, but this reasoning was previously rejected in similar cases. The requirement for the government to take independent steps for reinstatement means that termination of removal proceedings does not lead to a reinstated order. Thus, consistent with Galindo-Romero, the termination here also resulted in no order of removal, reaffirming the lack of jurisdiction.

The ability to review earlier rulings related to a final removal order does not extend to prior orders that terminate separate removal proceedings, especially when those do not lead to reinstated removal orders. The reinstatement process is a distinct legal proceeding from prior removal processes. The referenced cases, Alcala and Galindo-Romero, support this conclusion, emphasizing that jurisdiction over certain aspects of the reinstatement does not grant authority over unrelated prior proceedings. This reasoning is further supported by the Tenth Circuit’s decision in Aguilar-Aguilar v. Napolitano, where the court ruled that the termination of original removal proceedings did not result in a final order of removal and was therefore not subject to judicial review. Consequently, the petition for review is dismissed.