Opinion by Judge Bea; Partial Concurrence and Partial Dissent by Judge Wardlaw.
We are called on to determine whether this court has any power to act where the government voluntarily dismisses immigration removal proceedings and has not yet obtained a final order of removal.
Alcala petitions for review of two orders of the Board of Immigration Appeals (“BIA”): (1) the BIA’s order affirming the Immigration Judge’s (“IJ”) grant of the government’s motion to dismiss removal proceedings so the government could reinstate a prior, expedited order of removal against Alcala (No. 04-70983); and (2) the BIA’s order denying Alcala’s motion to reopen the dismissed removal proceedings, which motion was based on ineffective assistance of counsel (No. 04-72295).
Our jurisdiction is limited to that granted by Congress. Because the authorizing statute limits our jurisdiction to review of final orders of removal — and because no such order exists in this case — we dismiss Alcala’s petitions for review.
I.
Alcala, a native and citizen of Mexico, unlawfully entered the United States on January 20, 1988, without being admitted or paroled. In 1993, Alcala filed an application for asylum; 1 at some point thereafter, he returned to Mexico. 2 On March 18, 2000, Alcala attempted to return to the United States by using a fraudulent certificate of legal permanent residency (sometimes called a “green card”). That same day, pursuant to 8 U.S.C. § 1225(b)(1), Alcala was placed in expedited removal proceedings and removed from the United States. 3 The removal order prohibited Alcala from re-entering the United States for five years. Nevertheless, Alcala again unlawfully re-entered the United States soon thereafter.
In late 2000, 4 Alcala’s 1993 application for asylum was denied, and, on December 1, 2000, he was served with a Notice to Appear for removal proceedings. The notice alleged Alcala entered the United States on or about January 20, 1988, without being admitted or paroled after inspection. The notice did not mention Alcala’s expedited removal on March 18, 2000, or his subsequent unlawful re-entry.
At a December 2000 hearing, Alcala, through counsel, admitted the allegations in the Notice to Appear and conceded the charge of removability. The IJ continued proceedings until July 29, 2002 to allow Alcala to file with the INS an amended application for asylum, as well as applications for withholding of removal, protection under the Convention Against Torture (“CAT”), and, in the alternative, voluntary departure. Meanwhile, in February 2001, Alcala married a United States citizen, who then filed a visa petition for an alien relative on Alcala’s behalf with the INS.
*1012 The petition was approved. Alcala then filed with the INS an application for permission to reapply for admission to the United States after removal (Form 1-212) and an application for adjustment of status (Form 1-485). Once he filed the application for adjustment of status, Alcala abandoned his applications for other forms of relief before the immigration court, including asylum, withholding of removal, and CAT protection.
After several adjournments, the hearing on the merits of Alcala’s application for adjustment of status was set for November 19, 2002. Alcala was present with his wife. Alcala’s counsel, however, failed to appear. Instead, Alcala’s counsel sent an unprepared stand-in attorney who was unfamiliar with Alcala’s case. At the hearing, the government introduced into evidence two verified notices of Alcala’s prior expedited removal on March 18, 2000. Alcala admitted he had been so removed on March 18, 2000.
The government then orally moved to dismiss the removal proceedings it had commenced in December 2000 so that it might reinstate Alcala’s prior March 18, 2000 removal order pursuant to 8 U.S.C. § 1231(a)(5), 5 based on Alcala’s prior removal on March 18, 2000, and subsequent illegal re-entry. Alcala’s stand-in attorney presented no argument in opposition to the government’s motion, nor did the attorney mention Alcala’s pending applications for permission to reapply for admission and for adjustment of status. The IJ granted the government’s motion to dismiss the proceedings without adjudicating these applications for relief.
From the IJ’s order of dismissal, Alcala’s original counsel filed a timely appeal to the BIA, with a four-page brief in support. The brief failed to make any argument about the IJ’s dismissal of the proceedings or the IJ’s failure to address Alcala’s pending applications for permission to reapply for admission and adjustment of status. The BIA affirmed the IJ’s decision without opinion.
In our court, now represented by new counsel, Alcala timely filed a petition for review of the BIA’s order affirming the IJ’s dismissal of removal proceedings, which is now before us (No. 04-70983).
Alcala’s new counsel also filed a motion to reopen the November 2002 removal proceedings with the BIA. Alcala claimed ineffective assistance of counsel based on his counsel’s actions' — mostly inactions — at his removal hearing and appeal. Alcala also contended the IJ abused his discretion by failing to adjudicate his application for adjustment of status before terminating the proceedings.
The BIA denied Alcala’s motion to reopen. The BIA held that under the reinstatement statute and implementing regulation, 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 1241.8, 6 Alcala was subject to reinstatement of his prior order of removal without a hearing before an IJ. The BIA concluded prior counsel “did not provide ineffective assistance of counsel” because Alcala “had *1013 no right in the first place” to the removal proceedings and there was no legal argument counsel could have made to avoid their termination. Alcala timely filed a petition for review of this decision (No. 04-72295).
This court consolidated both petitions for review.
II.
At the outset, it is important to be clear about what Alcala does and does not petition this court to review. Alcala has not petitioned for review of the March 18, 2000 removal order. Nor does Alcala petition for review of a BIA order denying a motion to reopen the March 18, 2000 expedited proceedings that resulted in that removal order. Alcala has filed no such motion. Instead, Alcala seeks review of— and to reopen — the November 2002 removal proceedings, proceedings that resulted in no order of removal whatsoever. The only order the November 2002 hearing produced is an order of dismissal. The carefully crafted congressional scheme governing review of decisions of the BIA limits this court’s jurisdiction to the review of final orders of removal.
See
8 U.S.C. § 1252(a);
7
Lolong v. Gonzales,
That the government may, in the future, decide to reinstate the March 18, 2000 order of removal does not confer jurisdiction upon us. For reasons unknown, the government has not yet reinstated the order. As we have explained previously, “[w]hen an alien subject to removal leaves the country, the removal order is deemed to be executed. If the alien reenters the country illegally, the order may not be executed against him unless it has been ‘reinstated’ by an authorized official.”
Morales-Izquierdo v. Gonzales,
Reinstatement of a prior order of removal is not automatic. Under 8 U.S.C. § 1231(a)(5), if the Attorney General finds an alien has reentered this country illegally after having been removed under an order of expedited removal' — as is the case with Alcala — the prior order can be reinstated from its original date. However, the statute’s implementing regulation “requires that before a prior order can be reinstated, the immigration officer must (1) obtain the prior order related to the alien, (2) confirm that the alien under consideration is the same alien who was previously removed or voluntarily departed, and (3) confirm that the alien unlawfully reentered the United States.”
Lin v. Gonzales,
If these requirements are met, the immigration officer must then provide the alien with written notice of the determination and give the alien an opportunity to make a statement contesting the determination before an immigration officer. 8 C.F.R. § 241.8(b). “Only if the requirements of 8 C.F.R. § 241.8(a) and (b) have been satisfied is the alien removable under the previous order.”
Lin,
*1014
Here, the government has taken no action to fulfill the requirements of 8 C.F.R. § 241.8(a) and (b); indeed, there is no evidence in the record the government has taken any steps whatsoever to reinstate the prior removal order against Alcala. When, and if, the government chooses to reinstate the March 18, 2000 expedited order of removal, Alcala may seek whatever judicial remedies are afforded to an alien in reinstatement proceedings.
See Garcia de Rincon v. Dep’t of Homeland Sec.,
Citing
Lin v. Gonzales,
the dissent contends we have jurisdiction over Alcala’s petition because Alcala petitions for review of an order denying a motion to reopen. In
Lin,
we stated: “The denial of a motion to reopen falls within our jurisdiction over final orders of removal (not issued
in abstentia)
under 8 U.S.C. § 1252(a)(1), provided that the denial has been separately appealed.”
The dissent further contends we have jurisdiction over Alcala’s petition for review of the BIA’s order denying his motion to reopen simply because it raises a claim of ineffective assistance of counsel. 11 The INA does not give this court free-floating jurisdiction to review any and all claimed constitutional defects in a removal proceeding. This court has jurisdiction under 8 U.S.C. § 1252(a)(1)(D) over petitions for review which raise constitutional claims or questions of law if, and only if, there is a final order of removal. Section 1252(a)(1)(D) states:
Nothing in subparagraph (B) or (C) [limiting review over denials of discretionary relief and removal orders against aliens convicted of certain criminal offenses], or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.
(emphasis added). “This section” is § 1252(a), which limits jurisdiction to petitions for review of final orders of removal.
Lolong,
Further, the INA states:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only injudicial review of a final order under this section.
8 U.S.C. § 1252(b)(9) (emphases added).
In
Ikenokwalu-White v. Gonzales,
the United States Court of Appeals for the Eighth Circuit held it lacked jurisdiction over a petition for review of a revocation of an immediate relative petition and of a motion to reopen proceedings on the revocation, because there was no final order of removal — even though the petitioner raised a due process claim.
[W]e do not interpret the “constitutional claims or questions of law” exception contained in the REAL ID Act to be a general grant of appellate court jurisdic *1016 tion over all appeals involving alleged constitutional violations by the Service regardless of the nature of the underlying proceedings; the alleged constitutional violations must result in an order of removal that is otherwise directly appealable to the courts of appeals.
Id. Thus, where there is no final order of removal, this court lacks jurisdiction even where a constitutional claim or question of law is raised. 12
The dissent accuses us of donning “willful blinders” to the “facts” of Alcala’s fate and to the prior order of removal whose reinstatement is apparently inevitable.
Infra
at 1016. We plead guilty as charged. None of those “facts,” nor Alcala’s counsel’s deficient performance, can confer jurisdiction upon us. What the dissent terms a “technicality,”
infra
at 1018, is nothing less than the bedrock principle that federal courts are courts of limited jurisdiction.
See Cary v. Curtis,
We cannot and do not reach the merits of Alcala’s claim the IJ abused his discretion when he terminated proceedings without adjudicating Alcala’s applications for relief and Alcala’s claim of ineffective assistance of counsel. As a court of appeals, our direct review of immigration proceedings is limited to review of final orders of removal. Here, there is none.
PETITIONS DISMISSED. 13
WARD LAW, Circuit Judge, concurring in part and dissenting in part.
I respectfully dissent from the portion of the disposition holding that we lack jurisdiction to consider Alcala’s motion to reopen. Though the majority would end its inquiry at the purported lack of a “final order of removal,” it cannot escape two facts: First, a final order of removal exists and will be reinstated upon termination of this appeal. Second, with effective assis *1017 tance of counsel, Alcala may have succeeded in adjusting his status before the IJ. By not recognizing these facts, the majority has ensured that Alcala’s potentially meritorious ineffective assistance of counsel claim can never be heard due to a technical delay that is entirely within the government’s control and of its own creation.
The majority dons willful blinders to disregard the final order of removal that already exists for Alcala, the reinstatement of which has merely been stayed pending the outcome of this appeal. In fact, the very first order we issued after Alcala filed his petition for review before us was to grant Alcala’s unopposed motion to stay removal pending review. Moreover, during the initial adjustment of status proceeding at which Alcala’s counsel failed him so utterly, the following colloquy ensued between the IJ and counsel for the Immigration and Naturalization Service (“INS”):
Q. To the Government, is the respondent not subject to being removed under the expedited removal proceeding?
[A.] He is, Your Honor. Service, unfortunately, can’t make a motion to terminate right now unless I can contact my office to reinstate the prior order of removal.
[Q.] All right. How long would it take you to get that information from your office where we can appear back here in Court?
[A.] Your honor, I can do it this afternoon if I could contact my office by telephone and let you know in 10 minutes.
[Q.] All right. I will go off the record. Here’s the phone.
Q. Counsel for the Government, you’ve had an opportunity to discuss this matter with your office?
A. Yes, Your Honor, and pursuant to the office policy and permission of my office, seek to terminate the proceedings ... and re-instate the removal order ....
Q. The respondent admits that the orders do show and the documents do show that he was deported in 2000. He has reentered the United States without authorization from the Attorney General. He was subject for immediate removal without having been placed in proceedings so I will grant that order of termination.
The oral decision of the IJ also confirmed the understanding that, once the proceedings were terminated, the reinstatement, which was stayed pending these proceedings, would go into effect: “As a result of these documents and the admissions of the respondent here in Court, [the INS] moved that these proceedings be terminated so that the [INS] could reinstate the prior removal order. That motion is granted and proceedings are hereby terminated.” Thus, the removal order exists, and once the Department of Homeland Security reinstates it, it is the order by which Alcala may be deported. Inexplicably, the majority nonetheless concludes that there is no removal order.
The majority’s argument that Alcala’s removal is not, at this point, a foregone conclusion is unpersuasive. The majority notes that under 8 C.F.R. § 1241.8(a), an immigration officer must verify three findings prior to reinstatement: (1) the existence of the prior order of removal; (2) the identity of the individual; and (3) the indi-
*1018
victual's unlawful reentry. Again, the majority ignores the fact that all three findings have been admitted under oath by Alcala, on the record, before an IJ.
1
In Alcala’s circumstances, the likelihood of reinstatement cannot be seriously questioned; at this point, it is simply a matter of time. To hold that we lack jurisdiction under these circumstances is to allow the government to circumvent review on a temporal technicality. That is precisely why, in similar contexts, we have previously exercised our jurisdiction.
See Lolong v. Gonzales,
Indeed, though the majority cites
Lin v. Gonzales,
As a purely textual matter, moreover,
Lin’s
reading of § 1252(a)(1) is correct.
3
The provision authorizes judicial review of “a final order of removal” but does not specify whether the removal order must be unexecuted. An executed order of removal does not cease to be a final order of removal by virtue of its execution. While the majority cites
Morales-Izquierdo v. Gonzales,
We also have jurisdiction to consider Alcala’s appeal because his motion to reopen contained an independent claim for ineffective assistance of counsel.
See Fernandez v. Gonzales,
A claim for ineffective assistance has two components: counsel’s failure to perform with sufficient competence, and prej
*1020
udice resulting from this failure.
Mohammed v. Gonzales,
Alcala met the first prong of an ineffective assistance of counsel claim. His lawyer displayed a complete disregard for his professional obligations. When Alcala’s proceeding was called by the IJ, his attorney was not even present in the courtroom. Only by scouring the courthouse did Alcala’s wife eventually track the attorney down and then attempt' to drag him back to represent her husband. Rather than accompanying Mrs. Alcala back to the courtroom where his client awaited potential deportation, the lawyer sent in his stead an “appearance lawyer” — someone who had never worked on Alcala’s immigration matters. Other than some minimal hemming and hawing, including admissions that he did not have key documents in his possession, the “appearance lawyer” offered little by the way of advocacy. In fact, when the IJ granted the motion to terminate the proceedings, the substitute lawyer muttered “I’d like to speak to [the original lawyer] about this and see what the — ” before being cut off by the judge. “Deficient assistance” is a euphemism for what was in fact counsel’s complete abandonment of his duty of representation. 5
This deficient performance prejudiced Alcala’s claim, because he had “
‘plausible
grounds’ ” for relief.
Lin v. Ashcroft,
*1021 That we issued our decision in Perez-Gonzalez two years after Alcala’s hearing is immaterial. If Perez-Gonzalez were already established law in the Ninth Circuit, there would be no doubt that the attorney’s deficient assistance changed the ultimate result of Alcala’s case. That, of course, is not the test. The question, rather, is whether adequate advocacy may have changed the result. Obviously, Perez-Gonzalez’s counsel fashioned this argument before it became established law, and a properly prepared attorney should have been able to present similar arguments at Alcala’s hearing. Failure to provide effective assistance deprived Alcala of the opportunity to have this line of argument tested earlier. For that reason, Alcala suffered prejudice due to counsel’s deficient performance, and his motion to reopen should be granted. Further, the BIA’s conclusion that Alcala’s “proceedings were terminated by application of pertinent statutes and regulations, not as the result of ineffective assistance of counsel,” is clearly erroneous.
Indeed, in his motion to reopen Alcala specifically argued before the BIA that, given the existence of “two conflicting interpretations of the interplay” between the provisions governing reinstatement of removal, waiver of inadmissibility, and adjustment of status, the IJ would have been able to grant the discretionary relief Alcala sought and might have done so had counsel effectively presented the arguments in Alcala’s favor. In the BIA decision denying Alcala’s motion to reopen, the Board strangely characterizes Alcala’s “Motion To Reopen Based On Ineffective Assistance Of Counsel” as a motion to
reconsider,
then asserts that it will nonetheless construe this motion as “one to reopen.” The decision also states “it is difficult to envision what [Alcala’s counsel] could have argued at the hearing to avoid termination of proceedings,” although Alcala’s motion presented the same argument for granting discretionary relief that we later accepted.
See Perez-Gonzalez,
Alcala’s potentially meritorious ineffective assistance claim gives us jurisdiction over his appeal from the BIA’s denial of his motion to reopen because it states a colorable due process claim that we are authorized to review under 8 U.S.C. § 1252(a)(2)(D). Indeed, we have on several occasions explicitly acknowledged our potential jurisdiction over appeals such as Alcala’s.
See Bazua-Cota v. Gonzales,
*1022
If we relinquish jurisdiction here, it is likely that we relegate the egregious performance of Alcala’s counsel to an unreviewable purgatory. Though we acknowledged in
Morales-Izquierdo v. Gonzales
that “individual petitioners may raise procedural [due process] defects in their particular [reinstatement] cases,” it is doubtful that this review would encompass matters beyond the “narrow and mechanical determinations immigration officers must make” — determinations that have already been made here — in order to reinstate orders of removal.
Surely, if we have jurisdiction over constitutional claims that arise in connection with the denial of an application for adjustment of status, we may also hear appeals arising from the dismissal of such applications to accommodate the reinstatement of a prior order of removal. The hearing at which Alcala’s counsel failed him so abysmally resolved conclusively whether Alcala could legally remain in the United States. As the government would have it, however, Alcala suffered no constitutional violation because reinstatement was inevitable, but we cannot review his appeal because reinstatement appears not to have been technically finalized. This is not limbo; it is an incoherent paradox.
7
Our power to review and rectify alleged violations of fundamental rights should not be so readily discarded. In similar circumstances, facing what was “effectively an order of removal,”
Lo-long,
Notes
. Alcala’s asylum application claimed Alcala would be persecuted for being a member of the "Mexican Labor Union” in the state of Zacatecas, Mexico. Alcala claimed he had been, and would be, beaten and threatened by members of the Judicial Police if he returned to Mexico.
. The asylum application was pending when Alcala left for Mexico. For reasons not explained in the record, the government did not process Alcala's asylum application until some time in late 2000.
. 8 U.S.C. § 1225(b)(l)(A)(i) states that if an immigration officer determines that an alien is "inadmissible under section 1182(a)(6)(C) [pertaining to misrepresentation] or 1182(a)(7) [pertaining to lack of proper documentation] of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.”
. The precise date does not appear in the record.
. 8 U.S.C. § 1231(a)(5) states: “If the Attorney General finds that an alien has reentered the United Stales illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.”
. 8 C.F.R. § 1241.8 states in relevant part: "An alien who illegally reenters the United States after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the United States by reinstating the prior order. The alien has no right to a hearing before an immigration judge in such circumstances. ’ ’
. 8 U.S.C. § 1252(a)(1) states, in relevant part: "Judicial review of a final order of removal (other than an order of removal without a hearing ...) is governed only by chapter 158 of Title 28 [governing jurisdiction of court of appeals over petitions for review of final agency orders]
. We do, however, have jurisdiction to determine our jurisdiction over Alcala's petitions for review.
See Mustanich v. Mukasey,
. The dissent cites
Lolong
for the proposition that we may treat the BIA's order dismissing removal proceedings as "effectively” a final order of removal because Alcala's removal is now a "foregone conclusion.”
Infra
at 1017.
Lolong
does not authorize us to do so. In
Lolong,
the IJ found Lolong removable but granted cancellation of removal.
. That Alcala does not petition for review of the prior, March 18, 2000 order of removal is unsurprising as there are formidable barriers to obtaining such review. Any appeal filed with the BIA would now be time-barred.
See
*1015
8 U.S.C. § 1252(b)(l)(requiring appeals to be filed within 30 days of the issuance of the order of removal); 8 C.F.R. § 1003.23(b)(1) (requiring that any motion to reopen be filed within 90 days of the issuance of the order of removal). Moreover, because Alcala was removed in expedited proceedings for attempting to enter the United States using false papers, Alcala is not entitled to review in this court.
See Garcia de Rincon,
. We assume, but do not decide, that Alcala has a constitutional right to the assistance of counsel in immigration proceedings. On January 7, 2009, the Attorney General issued an opinion holding that aliens in removal proceedings have no right to the assistance of counsel. See Matter of Compean, 24 I. & N. Dec. 710 (2009). We express no opinion on the effect of this ruling.
Though we do not reach the issue, we also note that the case upon which the dissent relies to demonstrate Alcala suffered prejudice as a result of his counsel's purportedly deficient
performance
— Perez-Gonzalez
v. Ashcroft,
.
Fernandez v. Gonzales,
. Alcala’s request to hold his case in abeyance pending issuance of the mandate in
Duran-Gonzales v. Department of Homeland Security,
. 8 C.F.R. § 1241.8(a)(2) actually requires verification of identity by fingerprint, when disputed. Alcala’s fingerprints are on file and in the record of this appeal.
. The majority characterizes
Lolong
as holding that “the IJ’s finding of removability
was
a final order of removal that was reinstated when the BIA reversed the grant of cancellation of removal.’’
Supra,
at 1014.
In Lolong,
we held that “where the IJ has previously determined that the alien is removable but grants cancellation of removal, the BIA’s decision to reverse the cancellation of removal reinstates the initial finding of removability, which, under the statute, is effectively an order of removal.”
. In its entirety, § 1252(a)(1) provides:
General orders of removal. Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except as provided in subsection (b) of this section and except that the court may not order the taking of additional evidence under section 2347(c) of Title 28.
8 U.S.C. § 1252(a)(1). Section 1225(b)(1) pertains to "Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled." 8 U.S.C. § 1225(b)(1). Chapter 158 of Title 28 governs the review of orders of federal agencies.
. The majority claims that this reading of Fernandez conflicts with 8 U.S.C. § 1252(a)(2)(D), which safeguards our ability to review "constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). The majority's assertion is circular. It is premised upon the incorrect assumption that we lack jurisdiction over Alcala’s petition for review. However, Alcala appropriately filed his petition for review "in accordance" with 8 U.S.C. § 1252, and we accordingly have jurisdiction, so there is no conflict.
. The attachment to Alcala's 1-601 application for waiver of inadmissibility states: "The Applicant, Joel Alcala, has resided in the United States for 13 years. He loves this country greatly. He has lived here since he was about 18 years old. Thus, all of his adult life has been spent in this country. His United States citizen wife loves him greatly. She would be devastated if he has to return to Mexico. Thus, if his case is not approved a United States citizen will suffer greatly." Alcala also apologized profusely for trying to enter the United States using false papers, explaining that he had only gone to Mexico to visit his parents, who were very sick. These are just a few of the facts a prepared advocate might have employed in support of his legal arguments.
. It is immaterial that
Perez-Gonzalez
is no longer good law. In
Duran Gonzales,
we overruled
Perez-Gonzalez
by deferring to a BIA decision issued
after
we decided
Perez-Gonzalez. See Duran Gonzales,
. The majority's suggestion that Alcala should have attempted to reopen the initial removal proceedings, even though a motion to reopen would have been time-barred, is equally paradoxical.