ORDER
The panel has unanimously decided to amend its opinion, available at
On page 928, delete footnote 4.
On page 930, delete footnote 5.
With these amendments, the panel has voted to deny the petition for rehearing and petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc, filed January 13, 2011, are hereby DENIED. No future petitions for rehearing will be entertained. General Order 5.3(a).
OPINION
Petitioner Pedro Galindo-Romero (“Galindo”) seeks review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an Immigration Judge’s (“IJ”) decision terminating his for
I
Galindo is a native and citizen of Mexico. In 1987, he entered the United States illegally and settled in Texas. On March 2, 1998, the former Immigration and Naturalization Service (“INS”) issued a Notice to Appear charging Galindo with removability as an alien present in the United States without having been admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). He was placed in formal removal proceedings and ordered to appear before an IJ.
On June 26, 1998, Galindo appeared before an IJ, admitted the factual allegations in the Notice to Appear, conceded removability, and sought cancellation of removal or, in the alternative, voluntary departure. Galindo asked for additional time to explore his eligibility for cancellation of removal, and the hearing adjourned. On February 11, 2000, Galindo filed an application for cancellation of removal. Two continuances followed, and Galindo’s next hearing was set for March 26, 2001.
In April 2000, while still in removal proceedings with a pending cancellation of removal application, Galindo applied to the former INS for advance parole to leave the United States, claiming that his father, who lived in Mexico at that time, was ill. The INS denied his advance parole application, but Galindo went to Mexico nonetheless. On April 18, 2000, Galindo attempted to reenter the United States by applying for admission at the San Ysidro, California, port of entry, explaining to the immigration officer that he had a pending application for cancellation of removal with an IJ. The immigration officer denied Galindo entry.
On April 23, 2000, Galindo again attempted to reenter the United States, this time by telling the border patrol, falsely, that he was a United States citizen. Again, an immigration officer found Galindo inadmissible and denied his admission application. In support of this denial, the immigration officer found that Galindo had falsely represented himself to be a citizen of the United States, in violation of 8 U.S.C. § 1182(a)(6)(C)(ii), and that he was not, at the time of filing his admission application, in possession of a valid entry document, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). Accordingly, the immigration officer issued an expedited removal order pursuant to 8 U.S.C. § 1225(b), and Galindo was summarily removed from the United States.
On January 6, 2004, after several continuances, the IJ issued an oral decision terminating Galindo’s removal proceedings. The IJ held that she had “ha[d] no further jurisdiction to hear [Galindo’s] claim on his cancellation of removal,” because the INS’s April 23, 2000, expedited removal order “t[ook] preference over the Notice to Appear” and the earlier removal proceedings that had been pending before the IJ. The IJ noted that, although the INS had not yet reinstated the expedited removal order following Galindo’s most recent return to the United States, “that order would still be valid and outstanding and could, in fact, be reinstated” by the INS. Although the IJ terminated removal pro
Galindo appealed to the BIA, challenging the IJ’s termination of proceedings. The BIA dismissed, holding that Galindo’s “appeal relate[d] to matters outsiders] jurisdiction” and providing three reasons for that holding: (1) under 8 C.F.R. § 235.3(b)(2)(ii), the expedited removal order itself was not subject to appellate review by the BIA; (2) under 8 U.S.C. § 1231(a)(5), Galindo was ineligible to pursue any kind of relief from removal, including cancellation of removal, because his “expedited removal order [wa]s subject to reinstatement”; and (3) the BIA “ha[d] no authority to pass judgment on the constitutionality of the Immigration and Nationality Act” or the regulations implementing it. Galindo timely appealed to this court.
II
Galindo argues that the agency erred in terminating his formal removal proceedings. Before we may decide the merits of this argument, we must determine whether the Immigration and Nationality Act (“INA”) empowers us with jurisdiction over Galindo’s petition for review, an issue we determine de novo. See Luu-Le v. INS,
“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.” Alcala v. Holder,
We lack jurisdiction to review the agency’s termination of Galindo’s formal removal proceedings because the decisions of the BIA and IJ resulted in no order of removal at all. The agency is unable to remove Galindo from the United States on the basis of either of these decisions, and may remove him only if the Department of Homeland Security either (1) initiates new formal removal proceedings with service of a new Notice to Appear (which it has not done); or (2) reinstates the previous expedited order of removal (which it has not done). Crucially, “Reinstatement of a pri- or order of removal is not automatic.” Alcala,
On appeal, we rejected the government’s argument that, because the BIA did not enter any order of removal, and in fact “lacks statutory authority to enter orders of removal,” id. at 1176, we lacked jurisdiction to review the BIA’s order. We first noted that Lolong’s “legal limbo” — in which she was “deprive[d] ... of any avenue to seek review of the BIA’s decision” — “may raise serious constitutional concerns because the Suspension Clause unquestionably requires some judicial intervention in deportation cases.” Id. at 1177 (quotation marks omitted). In order to avoid serious doubts about the constitutionality of the INA, we determined that,
where the BIA reverses an IJ’s grant of relief that, by definition, follows an initial determination by the IJ that the alien is in fact removable, ... the BIA simply reinstates the order of removal that has already been entered by the IJ and that would have taken effect but for the IJ’s subsequent cancellation of removal.
Id. In other words, the BIA “[r]einstat[es] a prior order of removal by eliminating the impediment to that order’s enforcement.” Id. We concluded that this decision of the BIA “is effectively an order of removal” and that, therefore, we “ha[d] jurisdiction to consider [Lolong’s] petition for review of the BIA’s reinstatement of [the IJ’s] order.” Id. at 1178.
Galindo argues that, as in Lolong, he “is in the limbo state of having been subjected to an unlawful order [terminating proceedings] that would never be reviewable if the Government’s jurisdiction argument prevails.” He argues that
[t]he BIA’s declination of jurisdiction purports on its face not to be a final order of removal but it allows the [expedited removal order] to spring to life and allows Galindo to be summarily removed ... despite never having the ability to seek federal court review of the lawless decision of the immigration courts. This court should find that Lo-long controls and therefore hold that ... the BIA’s decision ... is “effectively” a final order of removal because the “impediment to the [prior] order’s enforcement” has been eliminated.
Galindo’s reliance on Lolong is misplaced. His argument is based on the faulty premise that the BIA’s decision “allows the [expedited removal order] to spring to life,” a proposition that is in direct conflict with our controlling decision in Alcala. In Alcala, an alien unlawfully entered the United States in 1988, applied for asylum in 1993, and thereafter returned to Mexico.
We held that, “[b]eeause an order dismissing removal proceedings is not an order of removal, we lack[ed] jurisdiction over Alcala’s petitions for review.” Id. at 1013. “Reinstatement of a prior order of removal is not automatic” but occurs “[o]nly if the requirements of 8 C.F.R. § 241.8(a) and (b) have been satisfied,” and “there [wa]s no evidence in the record that the government ha[d] taken any steps whatsoever to reinstate the prior removal order against Alcala.” Id. at 1013-14 (quotation marks omitted). Moreover, the fact “[t]hat the government [could], in the future, decide to reinstate the March 18, 2000 order of removal d[id] not confer jurisdiction upon us.” Id. at 1013. We noted that “[w]hen, and if, the government cho[se] to reinstate the March 18, 2000 expedited order of removal, Alcala [could] seek whatever judicial remedies are afforded to an alien in reinstatement proceedings.” Id. at 1014 (citing Garcia de Rincon v. DHS,
Crucially, we rejected the argument that “Lolong [stands] for the proposition that we [could] treat the BIA’s order dismissing removal proceedings as ‘effectively’ a final order of removal because Alcala’s removal [wa]s ... a ‘foregone conclusion.’ ” Id. at 1014 n. 9. We determined that, in Lolong,
we did not rest our holding upon the conclusion that we had the power to review orders other than final orders of removal. Nor did we conclude that we have jurisdiction any time an IJ might, impliedly or otherwise, think an alien is removable. Instead, we held 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. Here, by contrast, the IJ made no finding of removability and the BIA ha[d] not undertaken the steps necessary — and prescribed by regulation — to reinstate the prior, March 18, 2000 expedited order of removal.
Id. (citation omitted).
Galindo’s case is not meaningfully distinguishable from Alcala. As in Alcala, the termination of Galindo’s removal proceedings “resulted in no order of removal whatsoever.” Id. at 1013. “[T]here is no evidence in the record that the government has taken any steps whatsoever to reinstate the prior removal order against [Galindo],” id. at 1014, and “[t]hat the government may, in the future, decide to reinstate the [expedited removal order] does not confer jurisdiction on us,” id. at 1013.
Moreover, as in Alcala, Lolong is of no help to Galindo. In Lolong, we held that the BIA’s reversal of the IJ’s grant of
The only difference between Galindo’s case and Alcala is that Alcala sought relief after being removed pursuant to the expedited removal order, whereas Galindo had commenced formal removal proceedings and had applied for cancellation of removal before being subject to the expedited removal order. Galindo points out that, under 8 U.S.C. § 1231(a)(5), an alien subject to a reinstated order of removal “is not eligible and may not apply for any relief under [the INA].” Galindo interprets this provision to mean that the reinstatement of a prior order of removal precludes an alien from subsequently seeking relief from removal, but does not extinguish applications for relief filed prior to the reinstatement. Thus, he argues, Alcala is distinguishable from his case because Alcala “had no right to seek cancellation after an [expedited removal order]” due to the operation of 8 U.S.C. § 1231(a)(5), and therefore “was no worse off when his case was dismissed!,] • • • [and] depriving him of federal appellate jurisdiction did not create an unlawful Lolong limbo state.” In contrast, Galindo argues that the reinstatement of the expedited removal order in Galindo’s case “could not be used to thwart a preexisting application for relief,” and so “Galindo has lost a pending claim for relief from deportation” due to the dismissal of his claim, creating a Lolong problem.
We reject his argument. First, we disagree with his reading of § 1231(a)(5). In Galindo’s case, the reinstatement of the prior expedited removal order would “thwart” his application for cancellation of removal. Nothing in § 1231(a)(5) indicates that its bar on eligibility for relief applies only to relief sought prospectively, as opposed to an application for relief already pending. Indeed, the provision includes two distinct clauses: an alien who has been removed and then reenters illegally is “[1] not eligible and [2] may not apply for” relief under the INA. 8 U.S.C. § 1231(a)(5) (emphasis added). If § 1231(a)(5) were meant to bar only future applications for relief, the “not eligible and” language would be superfluous. See Weinberger v. Hynson, Westcott and Dunning, Inc.,
Second, Alcala did not engage in the kind of “harmless error” analysis that Galindo appears to believe that it conducted. In fact, in Alcala, we even noted that our holding was compelled by the INA “no matter how unsatisfying the Limbo-like circumstances in which an individual petitioner finds himself.”
Ill
In sum, the decisions of the BIA and IJ resulted in no final order of removal for us to review, and there will be no final order of removal for us to review until the government either reinstates its prior expedited removal order or initiates new formal removal proceedings. “When, and if, the government chooses to reinstate the [April 23, 2000,] expedited order of removal, [Galindo] may seek whatever judicial remedies are afforded to an alien in reinstatement proceedings.” Id. at 1014. Until then, we lack jurisdiction.
DISMISSED.
Notes
. Expedited removal orders are very different from formal removal proceedings before an IJ. Formal removal proceedings are governed by Section 240 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229a. Jurisdiction with an IJ vests when the agency serves a Notice to Appear upon the alien charged with removability and files it with the immigration court. 8 C.F.R. § 1003.14(a). The IJ then "conduct[s] proceedings for deciding the inadmissibility or deportability of [the] alien” pursuant to 8 U.S.C. §§ 1182 and 1227(a), respectively. 8 U.S.C. § 1229a(a)(l), (2). The IJ also “ha[s] the authority to ... determine applications” for relief under various provisions in the INA, including cancella
Expedited removal orders, which are governed by Section 235 of the INA, 8 U.S.C. § 1225, are "order[s] that summarily remove!] an alien who attempts to gain entry into the United States by falsely claiming citizenship,” Garcia de Rincon v. DHS,
. "When 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,
Section 1231(a)(5) of Title 8 limits any review of reinstatement orders, providing that an order of reinstatement "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.” Accordingly, we have held that reinstatement "can be performed like any other ministerial enforcement action,” MoralesIzquierdo,
. Regardless of whether we have jurisdiction over Galindo’s petition for review, we have jurisdiction to determine our own jurisdiction. See Alcala,