Summary
The Seventh Circuit held that it lacked jurisdiction to review the Board of Immigration Appeals' determination that drug-paraphernalia convictions qualified as controlled-substance offenses because the immigration judge never made a finding of removability, so there was no final order of removal under 8 U.S.C. § 1101(a)(47). The BIA lacked authority to enter a removal order in the first instance, as the INA vests that authority solely in immigration judges, with the BIA serving as an appellate body. The court vacated the BIA's ultra vires order and remanded, exercising its jurisdiction to determine its own jurisdiction and remedy the legal error. Key topics: final order of removal, BIA authority, immigration judge role, controlled-substance offense, drug paraphernalia, categorical approach, realistic probability.
Topics
Practice areas
Questions Presented
- Whether the court has jurisdiction to review the Board of Immigration Appeals' order when the immigration judge did not enter a removal order and the Board purported to enter a removal order in the first instance.
- Whether the Board of Immigration Appeals has the authority to enter a removal order in the first instance without a prior determination of removability by an immigration judge.
- Whether the court can vacate the Board's ultra vires order and remand despite lacking jurisdiction over the merits.
Holdings
- The INA does not grant the Board authority to issue a removal order in the first instance; the Board acts only as an appellate body. Therefore, the Board's order was ultra vires and there is no final order of removal to review. The court lacks jurisdiction under § 1252(a)(1).
- The court has jurisdiction to determine its own jurisdiction and, as a necessary concomitant, may order a remand to remedy the legal errors identified in the jurisdictional analysis. This prevents ultra vires behavior from going unremedied and avoids due process concerns.
Key quotations
“First, a 'special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable' [must] 'conclud[e] that the alien is deportable or order[] deportation.'” (at 5)
“The INA expressly vests immigration judges with the authority to conduct removal proceedings in the first instance.” (at 5)
“It is, of course, the case that we have jurisdiction to determine whether or not we have jurisdiction over a matter. We believe that a necessary concomitant of this jurisdiction is the authority to order a remand to remedy those legal errors we have identified in the course of coming to the conclusion that we have no jurisdiction. … If this were not the case, then there would be no remedy in the courts for ultra vires behavior, and this would raise serious due process concerns.” (at 8-9)
Factual background
Mejia Galindo is a lawful permanent resident from Honduras. He was convicted three times in Kentucky for possession of drug paraphernalia under Ky. Rev. Stat. § 218A.500(2). The Department of Homeland Security initiated removal proceedings under 8 U.S.C. § 1227(a)(2)(B)(i) as an alien convicted of a controlled-substance offense. The immigration judge applied the categorical and modified categorical approaches, found the state statute overbroad because it includes drugs not in federal schedules, and concluded the statute is not divisible, so he terminated proceedings. The Board of Immigration Appeals reversed, applying the 'realistic probability' test from Moncrieffe, and determined that the convictions qualify as controlled-substance offenses. The Board then entered a removal order without remanding to the immigration judge.
Procedural history
The immigration judge terminated removal proceedings, finding that Mejia Galindo's drug-paraphernalia convictions did not constitute controlled-substance offenses under the categorical approach. The Board of Immigration Appeals reversed, applied the realistic probability test, and entered a removal order.
Remand instructions
Remand for proceedings consistent with this opinion.