Miguel Lopez Luvian v. Merrick Garland

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MIGUEL ANGEL LOPEZ LUVIAN, No. 18-73286 Petitioner, Agency No. v. A089-389-099 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Department of Homeland Security Argued and Submitted June 24, 2022 Pasadena, California Filed July 19, 2022 Before: Kenneth K. Lee and Daniel A. Bress, Circuit Judges, and Sidney A. Fitzwater, * District Judge. Opinion by Judge Bress * The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. 2 LOPEZ LUVIAN V. GARLAND SUMMARY ** Immigration Dismissing for lack of jurisdiction Miguel Lopez Luvian’s petition for review of an order of the Department of Homeland Security (DHS) reinstating his prior removal order, the panel held that an immigration petitioner who is subject to a reinstated order of removal may not challenge an earlier decision terminating separate removal proceedings. Lopez was ordered excluded in 1996 and then unlawfully reentered the United States. In 2007, DHS served Lopez with a Notice to Appear (NTA) in immigration court, but later moved to dismiss the NTA as improvidently issued. DHS sought dismissal because it could reinstate Lopez’s 1996 removal order through the more streamlined reinstatement process. The immigration judge denied DHS’s motions and granted Lopez cancellation of removal, but the BIA granted DHS’s motion to dismiss and terminated removal proceedings. DHS later issued an order reinstating Lopez’s 1996 order, and he filed a petition for review, but did not challenge the reinstatement decision itself. Instead, he challenged the BIA’s earlier decision terminating his removal proceedings. Because Lopez’s petition challenged only the BIA’s decision terminating his removal proceedings, which did not result in a final removal order, the panel concluded that it lacked jurisdiction to consider the merits of his petition. The ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LOPEZ LUVIAN V. GARLAND 3 panel relied on Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009), and Galindo-Romero v. Holder, 640 F.3d 873 (9th Cir. 2011), where petitioners sought review of BIA decisions terminating removal proceedings, and this court concluded that it lacked jurisdiction because 8 U.S.C. § 1252(a) limits the court’s jurisdiction to review of “final orders of removal,” and no such orders existed in those cases. Lopez argued that the termination of his proceedings was effectively the “but for” cause of his reinstatement order because the termination set the stage for the government to then issue a reinstatement order. The panel rejected that contention, observing that the court turned down that same line of reasoning in Alcala and Galindo-Romero and explaining that it does not make sense to think of removal orders as “contingent” upon the termination of removal proceedings because the government must make a separate, independent showing to secure reinstatement. The panel found additional support for its conclusion in the Tenth Circuit’s decision in Aguilar-Aguilar v. Napolitano, …

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