Opinion
22-9537
10-07-2022
MY HOAN CAO, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent.
Petition for Review
Before PHILLIPS, EID, and CARSON, Circuit Judges.
ORDER
Petitioner My Hoan Cao filed this counseled petition for review seeking review of the Board of Immigration Appeals' ("BIA") May 20, 2022 decision that reversed an Immigration Judge's ("IJ") August 24, 2018 decision granting Petitioner's motion to terminate removal proceedings. The IJ had terminated Petitioner's removal proceedings finding that Petitioner had derived U.S. citizenship under former section 321(a)(3) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1432(a)(3). The BIA reversed the IJ's decision finding that Petitioner's does not qualify for derivative citizenship under former INA § 321(a)(3). The BIA reinstated Petitioner's removal proceedings and remanded for further proceedings and for entry of a new decision.
Respondent moves to dismiss this petition for review for lack of jurisdiction because there is no "final order of removal." In her response, Petitioner argues that this court should assert jurisdiction because the BIA adversely decided her citizenship claim. For the reasons stated below, we grant Respondent's motion to dismiss and we dismiss this petition for lack of jurisdiction.
Our jurisdiction to review removal proceedings requires a "final order of removal." 8 U.S.C. § 1252(a)(1); Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006)("We have general jurisdiction to review only a final order of removal."). The Code does not expressly define an order of removal but defines an "order of deportation" as "the order . . . concluding that the alien is deportable or ordering deportation." 8 U.S.C. § 1101(a)(47)(A). An order of deportation becomes "final" when (1) the BIA affirms the order on appeal, or (2) the period for seeking BIA review has expired. 8 U.S.C. § 1101(a)(47)(B).
Petitioner urges this court to review the BIA's decision because it impacts Petitioner's citizenship. We have previously concluded that "an immigration judge must first either issue an order of removal or make a finding of deportability to confer us with appellate jurisdiction." Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1142 (10th Cir. 2007)(dismissing petition for lack of jurisdiction where there is no final order of removal). Petitioner argues that the REAL ID Act provided us with jurisdiction to review "constitutional claims or questions of law," even in the absence of a final order of removal. However, we specifically rejected this claim both in Hamilton v. Gonzales, 485 F.3d 564, 568 (10th Cir. 2007) ("[O]ur authority to review constitutional claims and questions of law under [8 U.S.C.] § 1252(a)(2)(D) is constrained by the grant of jurisdiction provided by [8 U.S.C.] § 1252(a)(1), which requires a final order of removal.") md Sosa-Valenzuela, 483 F.3d at 1147 ("[8 U.S.C. §] 1252(a)(2)(D) does not provide jurisdiction independent of a final order of removal.").
We note that in a procedurally similar case, where the BIA reversed an IJ's termination of removal proceedings and remanded for further proceedings, the Ninth Circuit concluded that it lacked jurisdiction to review a citizenship claim because no final order of removal had been entered. See Viloria v. Lynch, 808 F.3d 764, 769-70 (9th Cir. 2015) (noting that the petitioner had already litigated his citizenship claim before the IJ and BIA, and if and when the agency entered a final order of removal against him, he would have the opportunity to seek review of the order in the court of appeals, including the underlying adverse determination regarding his citizenship).
Here, no order of removal has been entered against Petitioner. The BIA remanded for further proceedings and for entry of a new decision. Since there has been no final order of removal entered against Petitioner, we lack jurisdiction under 8 U.S.C. § 1252(a)(1). Accordingly, we grant Respondent's motion to dismiss this petition for review for lack of jurisdiction.
PETITION DISMISSED.