In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-1253 CARLOS ALBERTO MEJIA GALINDO, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A098-644-509 ____________________ ARGUED NOVEMBER 28, 2017 — DECIDED JULY 31, 2018 ____________________ Before BAUER, ROVNER, and SYKES, Circuit Judges. SYKES, Circuit Judge. Carlos Alberto Mejia Galindo, a na- tive of Honduras and a lawful permanent resident, faces removal from the United States as a result of three Kentucky 2 No. 17-1253 convictions for possession of drug paraphernalia. 1 The immigration judge determined that Mejia Galindo is not removable under 8 U.S.C. § 1227(a)(2)(B)(i) as an alien convicted of a controlled-substance offense. The Board of Immigration Appeals reversed and purported to enter a removal order. Mejia Galindo petitions for review. We lack jurisdiction to review the Board’s determination that the drug-paraphernalia convictions qualify as controlled-substance offenses. The Immigration and Nation- ality Act (“INA”) empowers us to review only a “final order of removal.” 8 U.S.C. § 1252. A final removal order is created in two steps. First, the immigration judge must conclude that the alien is removable. Id. § 1101(a)(47)(A). Second, the immigration judge’s removal order becomes “final” upon “a determination by the Board of Immigration Appeals affirm- ing such order.” Id. § 1101(a)(47)(B). Here, the immigration judge never made the requisite finding of removability, so there is no final order of removal to review. Although we lack jurisdiction to review the Board’s clas- sification of the drug-paraphernalia offenses, our jurisdiction to consider our own jurisdiction includes the authority to vacate the Board’s decision and remand as a remedy for the legal error we have identified in our jurisdictional decision. See Rhodes-Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir. 2007). Because the Board lacked the authority to issue a removal order in the first instance, we vacate and remand its ultra vires order. 1 The petitioner’s last name is hyphenated in the immigration judge’s order, his criminal records, and in filings before this court. We do not hyphenate his name to remain consistent with the Board’s order. No. 17-1253 3 I. Background Mejia Galindo legally entered the United States in 2001 and became a lawful permanent resident in 2007. Soon thereafter he amassed three convictions for possession of drug paraphernalia in violation of section 218A.500(2) of the Kentucky Statutes. In response the Department of Homeland Security initiated removal proceedings, charging Mejia Galindo with removability under § 1227(a)(2)(B)(i) as an alien convicted of a controlled-substance offense. Mejia Galindo moved to terminate the removal proceed- ings. To determine whether his paraphernalia convictions qualify as removable offenses, the immigration judge ap- plied the familiar “categorical” and “modified categorical” approaches. Under the categorical approach, an alien’s state conviction renders him removable if it “necessarily estab- lishe[s]” a violation of federal law. Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015). The modified categorical ap- proach applies if a divisible ...
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