Appellate Case: 21-9502 Document: 010110618742 Date Filed: 12/14/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 14, 2021 _________________________________ Christopher M. Wolpert Clerk of Court MIKHAIL SOLOMONOV, Petitioner, v. No. 21-9502 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. ------------------------------ AMERICAN IMMIGRATION LAWYERS ASSOCIATION, Amicus Curiae. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HOLMES, PHILLIPS, and EID, Circuit Judges. _________________________________ Mikhail Solomonov is a Canadian citizen who became a U.S. permanent resident in 2010. In early 2020, an immigration judge (IJ) ordered him removed based on a recent sexual assault conviction. Solomonov did not appeal, but * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-9502 Document: 010110618742 Date Filed: 12/14/2021 Page: 2 eventually moved to reopen, arguing that the agency could not sustain the charge of removal against him while his direct appeal from that conviction remained pending. The IJ denied that motion and the Board of Immigration Appeals (BIA) dismissed his appeal. Solomonov now petitions for review of the BIA’s decision regarding his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.1 I. BACKGROUND & PROCEDURAL HISTORY In August 2019, a Colorado jury found Solomonov guilty of sexual contact with a person incapable of appraising the nature of their conduct, in violation of Colo. Rev. Stat. § 18-3-402(1)(b). In January 2020, the government charged him with removability as one convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii); see also id. § 1101(a)(43)(A) (defining “aggravated felony” to include “rape”). He soon appeared before an IJ pro se, stating that he had already 1 The parties’ briefs spend several pages discussing this court’s jurisdiction, given that: (i) Solomonov never appealed the underlying order of removal, see 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right . . . .”); and (ii) this court has very limited ability to review removal issues when the petitioner has committed certain criminal offenses, compare id. § 1252(a)(2)(C) with id. § 1252(a)(2)(D). But even if we may not reach the underlying removal order, we may review the BIA’s decision on Solomonov’s motion to reopen because it “is considered a final, separately appealable order,” Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004). Also, to the extent the criminal-offense provision (§ 1252(a)(2)(C)) continues to apply, we note that …
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