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Keywords

jurisdictionappealmotionfelony
jurisdictionappealmotionfelony

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Lopez-Ruiz v. Ashcroft

Facts

Ignacio Lopez-Ruiz timely appealed to this court the BIA's decision to affirm an order for his removal. Lopez-Ruiz' substantive argument is that his drug-related criminal conviction in 1998 was not for an aggravated felony. The 1998 California conviction, which formed the only basis for Lopez-Ruiz' removal, has since been vacated. On April 29, 2002, the BIA granted a motion to reopen and remanded to the Immigration Judge (IJ) so that the IJ could consider the pertinence, if any, to his immigration case of the vacating of Lopez-Ruiz' sentence.

Ignacio Lopez-Ruiz timely appealed to this court the BIA's decision to affirm an order for his removal. Lopez-Ruiz' substantive argument is that his drug-related criminal conviction in 1998 was not for an aggravated felony. The 1998 California conviction, which formed the only basis for Lopez-Ruiz' removal, has since been vacated. On April 29, 2002, the BIA granted a motion to reopen and remanded to the Immigration Judge (IJ) so that the IJ could consider the pertinence, if any, to his immigration case of the vacating of Lopez-Ruiz' sentence.

Issue

The main legal issue was whether the court had jurisdiction to review the BIA's decision after the motion to reopen was granted.

The main legal issue was whether the court had jurisdiction to review the BIA's decision after the motion to reopen was granted.

Rule

This court only reviews final orders of removal. See, e.g., 8 U.S.C. 1252(a)(1), 1252(b)(1).

This court only reviews final orders of removal. See, e.g., 8 U.S.C. 1252(a)(1), 1252(b)(1).

Analysis

The court held that the granting of the motion to reopen meant there was no longer a final decision to review. It noted that if the BIA decided to reinstate the order of removal, the alien would be able to appeal that final removal decision on any ground which he has raised before the BIA before the final order of removal, not just the one that caused reopening.

The court held that the granting of the motion to reopen meant there was no longer a final decision to review. It noted that if the BIA decided to reinstate the order of removal, the alien would be able to appeal that final removal decision on any ground which he has raised before the BIA before the final order of removal, not just the one that caused reopening.

Conclusion

The court therefore dismissed this petition for lack of jurisdiction without prejudice.

The court therefore dismissed this petition for lack of jurisdiction without prejudice.

Who won?

The government prevailed in the case because the court found it lacked jurisdiction to review the BIA's decision after the motion to reopen was granted.

The government prevailed in the case because the court found it lacked jurisdiction to review the BIA's decision after the motion to reopen was granted.

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