Immigration – Removal Order

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7^th Circuit Court of Appeals

Case Name: Carlos Alberto Mejia Galindo v. Jefferson B. Sessions III

Case No.: 17-1253

Officials: BAUER, ROVNER, and SYKES, Circuit Judges.

Focus: Immigration – Removal Order

Carlos Alberto Mejia Galindo, a native of Honduras and a lawful permanent resident, faces removal from the United States as a result of three Kentucky convictions for possession of drug paraphernalia. 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 Nationality 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 affirming 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 classification 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.

Vacated and Remanded

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