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Keywords

jurisdictionappealpleafelonydeportation
jurisdictionappealpleaguilty plea

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Sosa-Valenzuela v. Gonzales

Facts

Baltazar Sosa-Valenzuela illegally entered the United States from Mexico in 1981 at the age of three and became a lawful permanent resident in June of 1992. In 1994, he pleaded guilty to attempt to commit murder and unlawful possession of a firearm. Following a successful post-conviction petition, his plea was amended to first degree assault. Based on this felony, the Department of Homeland Security initiated deportation proceedings in 1997. Sosa-Valenzuela petitioned for a waiver from removal, which was granted by an immigration judge, but later reversed by the BIA.

Baltazar Sosa-Valenzuela illegally entered the United States from Mexico in 1981 at the age of three. He became a lawful permanent resident in June of 1992 as part of an amnesty program implemented by Congress in its 1986 immigration reform legislation. In 1994, at age 16, Sosa-Valenzuela pleaded guilty in Colorado of attempt to commit murder in the second degree and unlawful possession of a firearm by a juvenile. In 1997, as a result of a successful post-conviction petition based on the ineffectiveness of counsel in the earlier plea dealings, the court amended Sosa-Valenzuela's guilty plea to first degree assault and a crime of violence with a deadly weapon.

Issue

What constitutes a 'final order of removal' for purposes of appellate jurisdiction under 8 U.S.C. 1252(a)(1) and whether the BIA has the independent authority to issue a final order of removal in the absence of a removal order or a finding of deportability by an immigration judge.

What constitutes a 'final order of removal' for purposes of appellate jurisdiction under 8 U.S.C. 1252(a)(1) and whether the BIA has the independent authority to issue a final order of removal in the absence of a removal order or a finding of deportability by an immigration judge.

Rule

An immigration judge must first either issue an order of removal or make a finding of deportability to confer appellate jurisdiction, and the BIA does not have the independent statutory authority to issue an order of removal in the first instance.

We conclude (1) an immigration judge must first either issue an order of removal or make a finding of deportability to confer us with appellate jurisdiction; and (2) the BIA does not have the independent statutory authority to issue an order of removal in the first instance.

Analysis

The court determined that neither the immigration judge's grant of a waiver nor the BIA's removal order constituted a final order of removal because there was no express finding of deportability by the immigration judge. The statutory framework requires that an immigration judge must make a finding of deportability before the BIA can order removal, and since this finding was absent, the appellate court lacked jurisdiction.

Since the record in this case discloses no finding of deportability by the immigration judge, we are left without a reviewable final order of removal. Consequently, we lack jurisdiction under 8 U.S.C. 1252, and, accordingly DISMISS the appeal and REMAND to the BIA for further proceedings.

Conclusion

The court dismissed the appeal for lack of jurisdiction and remanded the case to the BIA for further proceedings to determine deportability.

In sum, an order of removal by the IJ is required before the BIA may order removal. This may include an express order of removal or, more generally, a finding of deportability. Neither occurred in this case. Consequently, no final order of removal yet exists, and we lack appellate jurisdiction under 1252(a).

Who won?

The Department of Homeland Security prevailed because the court found it lacked jurisdiction to review the BIA's order of removal due to the absence of a final order.

The Department of Homeland Security prevailed because the court found it lacked jurisdiction to review the BIA's order of removal due to the absence of a final order.

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