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Lazo v. Gonzales

Facts

Lazo, a citizen of El Salvador, became a permanent resident of the United States in 1990. In 1992, he molested his girlfriend's minor daughter, and was convicted under New York state law of sexually abusing a child of less than eleven years. Thereafter, he married and fathered a child. Lazo was placed in removal proceedings in 1998, and was charged as being inadmissible due to commission of a crime involving moral turpitude. Lazo conceded the charge and sought discretionary relief from removal. In 2003, the IJ granted a waiver from removability, citing the decade that had elapsed since Lazo's offense. The Department of Homeland Security appealed, and the BIA reversed the waiver in light of 'the seriousness of the respondent's crime.'

Lazo, a citizen of El Salvador, became a permanent resident of the United States in 1990. In 1992, he molested his girlfriend's minor daughter, and was convicted under New York state law of sexually abusing a child of less than eleven years. Thereafter, he married and fathered a child. Lazo was placed in removal proceedings in 1998, and was charged as being inadmissible due to commission of a crime involving moral turpitude. Lazo conceded the charge and sought discretionary relief from removal. In 2003, the IJ granted a waiver from removability, citing the decade that had elapsed since Lazo's offense. The Department of Homeland Security appealed, and the BIA reversed the waiver in light of 'the seriousness of the respondent's crime.'

Issue

Whether the Board of Immigration Appeals ('BIA') has statutory authority under the Immigration and Nationality Act of 1952 ('INA'), as amended, to order the removal of an alien, or whether the BIA is instead limited to affirming or reversing an immigration judge's ruling granting discretionary relief from removal.

Whether the Board of Immigration Appeals ('BIA') has statutory authority under the Immigration and Nationality Act of 1952 ('INA'), as amended, to order the removal of an alien, or whether the BIA is instead limited to affirming or reversing an immigration judge's ruling granting discretionary relief from removal.

Rule

An alien may be removed only pursuant to a valid order of removal. A finding of removability by an Immigration Judge (IJ) constitutes an order of removal, allowing the BIA to reinstate it by overturning the IJ's grant of discretionary relief.

An alien may be removed only pursuant to a valid order of removal. See 8 U.S.C. 1227(a).

Analysis

The court determined that the IJ's finding of removability was sufficient to satisfy the statutory requirement for an order of removal. The BIA did not issue a new order of removal; instead, it removed an impediment to the removal that had already been ordered by the IJ. The court noted that the statutory definition equates a finding of removability with an order of removal, thus allowing the BIA to act within its authority.

Because the plain statutory language commands that we treat the IJ's finding of removability as an order of removal, we deny the petition for review.

Conclusion

The petition for review was denied, affirming the BIA's authority to overturn the IJ's grant of discretionary relief and uphold the order of removal.

For the foregoing reasons, the petition for review is denied.

Who won?

The Board of Immigration Appeals (BIA) prevailed in the case because the court upheld its authority to overturn the IJ's decision and found that the IJ's finding of removability constituted an order of removal.

The Board of Immigration Appeals ('BIA') did not 'order' Lazo's removal (as Lazo characterizes the order); the BIA has removed an impediment to the removal that was ordered by the IJ.

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