explaining that “because the determination of the likelihood of torture is a decision on the merits, we have jurisdiction over petitions seeking review of such decisions”
How later courts described this case
- explaining that “because the determination of the likelihood of torture is a decision on the merits, we have jurisdiction over petitions seeking review of such decisions”
- holding that California’s definition of methamphetamine is a categorical match to the federal definition
- “Had Cisneros been granted a U-visa subsequent to the issuance of the removal order, the removal order would have been canceled.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVIA TAPIA CORIA, No. 22-970
Agency No.
Petitioner,
A092-680-641
v.
ORDER AND
MERRICK B. GARLAND, Attorney AMENDED
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 20, 2023
Phoenix, Arizona
Filed March 19, 2024
Amended August 16, 2024
Before: Sandra S. Ikuta, Bridget S. Bade, and Daniel A.
Bress, Circuit Judges.
Order;
Opinion by Judge Bress
2 TAPIA CORA V. GARLAND
SUMMARY *
Immigration
The panel denied a petition for rehearing en banc and
issued an amended opinion dismissing, for lack of
jurisdiction, a petition for review of the Board of
Immigration Appeals’ denial of petitioner’s motions for
remand and administrative closure.
In the original opinion, the panel held that this court’s
“on the merits” exception to the criminal jurisdiction bar at
8 U.S.C. § 1252(a)(2)(C) is clearly irreconcilable with the
reasoning and theory of Nasrallah v. Barr, 140 S. Ct. 1683
(2020), which defined a “final order of removal” to include
all IJ or BIA rulings that “merge into final orders of
removal,” meaning all matters on which the validity of the
final order is contingent, and held that judicial review does
not extend to factual challenges to the final removal
order. Because petitioner’s motions to remand and for
administrative closure merged with her final order of
removal, and it was undisputed that she had a qualifying
criminal conviction, the panel held that it lacked jurisdiction
to review petitioner’s challenge to the Board’s factual
findings in connection with the denial of relief.
In the amended opinion, the panel added a footnote
explaining that the panel’s decision did not disturb the result
in Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. 2003),
which stands for the proposition that for the criminal alien
bar to apply, there must be an agency “determination that the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TAPIA CORA V. GARLAND 3
alien is removable” based on a covered conviction. The
panel had no occasion in this case to decide whether
Nasrallah or other intervening law changes this threshold
requirement in Alvarez-Santos, which therefore remains
intact.
COUNSEL
Christopher J. Stender (argued), Federal Immigration
Counselors AZ PC, Phoenix, Arizona; David J. Zimmer and
Gerard J. Cedrone, Goodwin Procter LLP, Boston,
Massachusetts; Rohiniyurie Tashima, Goodwin Procter
LLP, Washington, D.C.; for Petitioner.
Yanal H. Yousef (argued) and Kristen H. Blosser, Trial
Attorneys; Anthony P. Nicastro, Assistant Director; Civil
Division/ Office of Immigration Litigation; Brian Boynton,
Principal Deputy Assistant Attorney General; United States
Department of Justice, Washington, D.C.; for Respondent.
ORDER
The opinion filed on March 19, 2024, and appearing at
96 F.4th 1192, is amended as follows:
• At Slip Op. page 19, line 18 [96 F.4th at 1202],
change “genesis” to “precursor.”
• At Slip Op. page 23, footnote 4 [96 F.4th at 1204
n.4], remove “Alvarez-Santos, 332 F.3d at 1250.”
• At Slip Op. page 28, line 16 [96 F.4th at 1206],
remove “Alvarez-Santos, 332 F.3d at 1250–53.”
4 TAPIA CORA V. GARLAND
• At Slip Op. page 31, line 32 [96 F.4th at 1208], add
the following footnote:
We note that our decision today does not
disturb the result in Alvarez-Santos.
Unuakhaulu and its progeny forged the “on
the merits” exception based on an extension
of the reasoning in Alvarez-Santos. See
Pechenkov, 705 F.3d at 450 (Graber, J.,
concurring) (“In Unuakhaulu, we took
Alvarez-Santos a step further.”). But as we
have discussed, the key issue on which
Alvarez-Santos relied was that the IJ did not
find that the petitioner was removable due to
a conviction covered by § 1252(a)(2)(C). See
332 F.3d at 1249. Alvarez-Santos stands for
the proposition that for the criminal alien bar
to apply, there must be an agency
“determination that the alien is removable”
based on a covered conviction. Id. at 1251.
We have no occasion in this case to decide
whether Nasrallah or other intervening law
changes this threshold requirement in
Alvarez-Santos, which therefore remains
intact.
With these amendments, the panel unanimously voted to
deny the 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 rehearing en
banc, Dkt. No. 38, is DENIED. No further petitions for
rehearing will be entertained.
TAPIA CORA V. GARLAND 5
OPINION
BRESS, Circuit Judge:
Under the so-called “criminal alien bar,” 8 U.S.C.
§ 1252(a)(2)(C), “no court shall have jurisdiction to review
any final order of removal against an alien who is removable
by reason of having committed a [covered] criminal
offense.” Statutorily exempted from this jurisdictional
prohibition are constitutional claims or questions of law;
those we do review. See id. § 1252(a)(2)(D). We have also
implied a further exception: notwithstanding a criminal
conviction that would otherwise bar judicial review under
§ 1252(a)(2)(C), we may review a final order of removal
provided that the Board of Immigration Appeals (BIA) or
Immigration Judge (IJ) denied relief “on the merits,” rather
than on the basis of the criminal offense that triggered
§ 1252(a)(2)(C). Under these circumstances, we can review
the agency’s factual findings. In our circuit, this is
sometimes called the “on the merits” exception to
§ 1252(a)(2)(C).
The petitioner in this case sustained a qualifying
conviction under § 1252(a)(2)(C), and she does not advance
any constitutional claim or question of law. Although she
would meet the “on the merits” exception, thereby enabling
our review of the agency’s factual determinations, the
government argues that a recent Supreme Court decision,
Nasrallah v. Barr, 140 S. Ct. 1683 (2020), abrogates the “on
the merits” exception. Nasrallah defined the contours of
“final order of removal” in § 1252(a)(2)(C), explaining that
it includes any denial of relief that “merges with” the final
order of removal. Nasrallah further made clear that when
§ 1252(a)(2)(C) applies, “the court of appeals may not
6 TAPIA CORA V. GARLAND
review factual challenges to a final order of removal.” Id. at
1690 (emphasis in original). We agree with the government
that our “on the merits” exception is no longer valid because
“the reasoning or theory of our prior circuit authority is
clearly irreconcilable with the reasoning or theory of
intervening higher authority” in Nasrallah. Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
In this opinion, we lay out the legal framework that
Nasrallah ordains for determining when the criminal alien
bar precludes judicial review of agency factual findings in a
petition for review of a final order of removal. Applying that
framework to this case, we hold that because the petitioner
challenges the denial of relief that merges with the final
order of removal, we lack jurisdiction under § 1252(a)(2)(C)
to review petitioner’s factual challenges—the only type of
challenge she raises. We accordingly dismiss the petition for
review.
I
The petitioner in this case is Silvia Tapia Coria, a native
and citizen of Mexico. She arrived in the United States on
January 1, 1982, becoming a lawful permanent resident on
December 31, 1990. In 1999, she was convicted of
possession for sale of methamphetamine, a controlled
substance, in violation of California Health and Safety Code
§ 11378. She was sentenced to 180 days of imprisonment
and three years of probation. Following her sentence, Tapia
Coria continued to reside in the United States.
Sixteen years later, in September 2015, and upon return
from a trip to Mexico, Tapia Coria sought admission into the
United States as a returning lawful permanent resident at the
Phoenix, Arizona port of entry. Because she was on a watch
list due to her drug conviction, Tapia Coria was referred to
TAPIA CORA V. GARLAND 7
secondary inspection and paroled into the United States on a
deferred basis, pending further investigation.
In November 2015, the Department of Homeland
Security (DHS) initiated removal proceedings against Tapia
Coria. The Notice to Appear charged her as an inadmissible
alien subject to removal because she was an alien convicted
of a controlled substance offense, 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), and an alien whom “the consular
officer or the Attorney General knows or has reason to
believe is or has been an illicit trafficker in any controlled
substance,” id. § 1182(a)(2)(C)(i).
Tapia Coria appeared before an immigration judge (IJ)
in February 2016. She denied both charges of
inadmissibility but admitted all other factual allegations in
the Notice to Appear. On May 24, 2017, Tapia Coria filed
an application for cancellation of removal, later moving to
terminate the removal proceedings. In March 2021, the IJ
sustained both charges of removability and denied relief on
all grounds. The IJ thus ordered Tapia Coria removed to
Mexico.
Tapia Coria appealed the IJ’s decision to the BIA. As
relevant to her current petition for review, Tapia Coria
requested remand to the IJ on the new theory that she was
eligible to become a derivative beneficiary of her husband’s
pending U visa application. 8 U.S.C. §1101(a)(15)(U). U
visas are made available to certain aliens who are victims of
criminal activity in the United States and who come forward
to report it; certain family members of the applicant are also
eligible for derivative U visa status. See Medina Tovar v.
Zuchowski, 982 F.3d 631, 633–34 (9th Cir. 2020) (en banc);
8 U.S.C. § 1101(a)(15)(U).
8 TAPIA CORA V. GARLAND
Tapia Coria attached to her motion to remand documents
showing that her husband had filed a U visa application in
March 2018, and that she filed an application to be a
derivative beneficiary in August 2021. Because of her
inadmissibility charges, Tapia Coria was also required to
apply for an inadmissibility waiver, which she submitted in
connection with the U visa request. 8 U.S.C. § 1182(h).
While her appeal was pending before the BIA, Tapia Coria
moved for administrative closure of her removal
proceedings, repeating the same arguments about the U visa.
The BIA dismissed Tapia Coria’s appeal and denied her
motions for remand and administrative closure. The BIA
held that Tapia Coria’s methamphetamine conviction
rendered her removable under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). Responding to Tapia Coria’s
argument that she was now seeking to be a derivative
beneficiary of her husband’s U visa application, the BIA
found it speculative whether Tapia Coria would receive this
relief: “The uncertainty concerning when relief will become
available based on the recent filing, and the likelihood of
success diminished by the need for an inadmissibility
waiver, weighs heavily against a further continuance and a
further delay of [Tapia Coria’s] proceedings.” The BIA thus
denied Tapia Coria’s motion to remand. It denied her
motion for administrative closure for the same reasons:
“Given the speculative nature as to when [Tapia Coria’s] U
visa may be adjudicated, and the likelihood of success
diminished by the need for an inadmissibility waiver, we are
TAPIA CORA V. GARLAND 9
not persuaded the proceedings should be administratively
closed.” 1
Tapia Coria timely petitioned for review of the BIA’s
denial of her motions for remand and administrative closure.
But “[b]efore we reach the merits of [Tapia Coria’s]
claim[s], we must determine whether we have jurisdiction to
review the BIA’s denial” of her motions. Diaz-Covarrubias
v. Mukasey, 551 F.3d 1114, 1116–17 (9th Cir. 2009).
II
Under 8 U.S.C. § 1252(a)(2)(C), “no court shall have
jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed a
[covered] criminal offense.” This provision is sometimes
referred to as the “criminal alien bar.” See, e.g., Kucana v.
Holder, 558 U.S. 233, 246 (2010); Silva v. Garland, 993
F.3d 705, 712 n.4 (9th Cir. 2021).
In this case, it is undisputed that Tapia Coria’s California
conviction for methamphetamine possession for sale triggers
§ 1252(a)(2)(C). Section 1252(a)(2)(C) applies to “a
criminal offense covered in section 1182(a)(2),” and Tapia
Coria’s methamphetamine conviction is an offense under
§ 1182(a)(2)(A)(i)(II). See also United States v. Rodriguez-
Gamboa, 972 F.3d 1148, 1152–54 (9th Cir. 2020) (holding
that California’s definition of methamphetamine is a
categorical match to the federal definition). If Tapia Coria
1
Before the BIA, Tapia Coria made other arguments in support of her
motions for remand and administrative closure, and she also sought
additional relief, such as cancellation of removal. Tapia Coria does not
renew those arguments here. Tapia Coria challenges only the BIA’s
denial of her motions to remand and for administrative closure based on
her pending derivative U visa application. We thus confine our analysis
to that issue.
10 TAPIA CORA V. GARLAND
asks us to review a final order of removal, we lack
jurisdiction under § 1252(a)(2)(C) unless an exception
applies.
We hold that under the criminal alien bar, we lack
jurisdiction to consider Tapia Coria’s petition for review.
Our analysis proceeds in several steps. In Part II.A, we first
conclude, using the framework of Nasrallah v. Barr, 140 S.
Ct. 1683 (2020), that Tapia Coria is seeking review of a
“final order of removal,” thus implicating § 1252(a)(2)(C).
In Part II.B, we examine Tapia Coria’s petition under
existing circuit precedent and conclude that although Tapia
Coria does not raise any constitutional claim or question of
law under § 1252(a)(2)(D), we would have jurisdiction to
review her factual challenges to the BIA’s denial of relief
under our circuit’s “on the merits” exception to
§ 1252(a)(2)(C). In Part II.C, however, we conclude that the
“on the merits” exception is clearly irreconcilable with the
reasoning and theory of Nasrallah. Thus, the “on the merits”
exception can no longer govern. In Part II.D, we lay out the
new, post-Nasrallah framework governing the criminal alien
bar and recap how that framework applies to this case.
A
The first question we consider is whether Tapia Coria’s
challenge to the BIA’s denial of her motions to remand and
for administrative closure seeks review of a “final order of
removal” within the meaning of § 1252(a)(2)(C). We hold
that it does. We will have more to say about the Supreme
Court’s recent decision in Nasrallah later, when we address
our circuit’s “on the merits” exception. But Nasrallah is also
central in confirming, at the outset, that Tapia Coria is
challenging a “final order of removal,” thus implicating
§ 1252(a)(2)(C).
TAPIA CORA V. GARLAND 11
1
Nasrallah considered whether the criminal alien bar
applies to judicial review of the denial of relief under the
Convention Against Torture (CAT). Nasrallah held that it
did not because a ruling on CAT protection is not part of the
“final order of removal” under § 1252(a)(2)(C). 140 S. Ct.
at 1689–92. This means that courts of appeal can review
factual findings underlying the denial of CAT relief. Id. at
1688; see also, e.g., Park v. Garland, 72 F.4th 965, 973 (9th
Cir. 2023). In so holding, the Supreme Court was required
to explain what qualifies, in the first place, as a “final order
of removal” within the meaning of § 1252(a)(2)(C).
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) gives courts of appeal
the power to review “final order[s] of removal.” Nasrallah,
140 S. Ct. at 1689–90 (quoting 8 U.S.C. § 1252(a)(1)). In
the “deportation context,” the phrase has an obvious
meaning: “a ‘final order of removal’ is a final order
‘concluding that the alien is deportable or ordering
deportation.’” Id. at 1690 (quoting § 1101(a)(47)(A)). But
the Supreme Court in Nasrallah recognized that an order
need not be “the same as final orders of removal” to be
reviewable by courts of appeal (absent a jurisdiction-
stripping provision). Id. at 1691 (emphasis in original). The
Act “also states that judicial review ‘of all questions of law
and fact arising from any action taken or proceeding brought
to remove an alien from the United States under this
subchapter shall be available only in judicial review of a
final order under this section.’” Id. at 1690 (alteration
omitted) (quoting 8 U.S.C. § 1252(b)(9)). The Act
consolidates judicial review of “a noncitizen’s various
challenges arising from the removal proceeding” in the
courts of appeals, thereby streamlining the judicial review
12 TAPIA CORA V. GARLAND
process. Id. (quoting INS v. St. Cyr, 533 U.S. 289, 313 &
n.37 (2001)).
According to Nasrallah, the phrase “final order of
removal” in 8 U.S.C. § 1252(a)(2)(C) encompasses more
than just an order finding that an alien is removable. See id.
at 1691. Instead, a “final order of removal” includes all
rulings of an IJ or the BIA that “merge into final orders of
removal.” Id. Nasrallah gave as an example an IJ’s
evidentiary rulings. Id. Nasrallah explained that a decision
merges into the final order of removal when it “affect[s] the
validity of the final order of removal” or “disturb[s] the final
order of removal.” Id. In other words, “review of a final
order of removal ‘includes all matters on which the validity
of the final order is contingent.’” Id. (quoting INS v.
Chadha, 462 U.S. 919, 938 (1983)).
With “final order of removal” properly defined,
Nasrallah held that this term did not encompass a CAT
order. Such an order “does not disturb the final order of
removal” because the alien remains removable at any time
regardless of the ruling on the application for CAT
protection. Id. The reason is that “[a]n order granting CAT
relief means only that, notwithstanding the order of removal,
the noncitizen may not be removed to the designated country
of removal, at least until conditions change in that country.”
Id. Even while an order granting CAT relief is in place, an
alien can still “be removed at any time to another country
where he or she is not likely to be tortured.” Id. (quoting 8
C.F.R. §§ 1208.17(b)(2), 1208.16(f)). Given the alien’s
continued ability to “be removed at any time,” a denial of
CAT relief does not merge into the final order of removal.
Id. (quotations omitted). That is so even though “[a] CAT
order may be reviewed together with the final order of
removal.” Id. at 1692.
TAPIA CORA V. GARLAND 13
With the benefit of Nasrallah’s guidance, we hold that
in challenging the denials of her motions for remand and
administrative closure, Tapia Coria asks us to review agency
decisions that merge with the final order of removal. Each
motion, if granted, would “affect the validity of the final
order of removal” or “disturb the final order of removal.” Id.
at 1691.
Tapia Coria sought a remand to the IJ and administrative
closure of her removal proceedings to allow her to pursue U
visa relief. And U visa relief, if awarded, would preclude
Tapia Coria’s removal. See, e.g., United States v. Cisneros-
Rodriguez, 813 F.3d 748, 761 (9th Cir. 2015) (“Had
Cisneros been granted a U-visa subsequent to the issuance
of the removal order, the removal order would have been
canceled.”); 8 C.F.R. § 214.14(c)(5)(i) (“For a petitioner
who is subject to an order of exclusion, deportation, or
removal issued by the Secretary, the order will be deemed
canceled by operation of law as of the date of USCIS’
approval of [the U visa application].”).
From this we conclude that resolution of Tapia Coria’s
motion for remand or motion for administrative closure
“merge[s] into the final order of removal” because the
motions, if granted, would “affect the validity of the final
order of removal.” Nasrallah, 140 S. Ct. at 1691. The entire
point of Tapia Coria’s motions before the BIA was to
forestall the final order of removal and prevent it from taking
effect while she pursued U visa relief. By statute, an order
of removal “become[s] final upon” a decision of the BIA
affirming that order or the expiration of the period for
seeking BIA review. 8 U.S.C. § 1101(a)(47)(B). And we
have held that “an order of removal cannot become final for
any purpose when it depends on the resolution of further
issues by the IJ on remand.” Abdisalan v. Holder, 774 F.3d
14 TAPIA CORA V. GARLAND
517, 523 (9th Cir. 2014) (en banc), as amended (Jan. 6,
2015).
In this case, the grant of administrative closure would
eliminate the immediate possibility of removal because the
agency would “temporarily remove [the] case from [the]
Immigration Judge’s active calendar” and “close removal
proceedings.” Matter of Avetisyan, 25 I. & N. Dec. 688, 692,
696 (B.I.A. 2012); see also Gonzalez-Caraveo v. Sessions,
882 F.3d 885, 889 (9th Cir. 2018); Diaz-Covarrubias, 551
F.3d at 1116. Importantly, “administrative closure does not
result in a final order.” Gonzalez-Caraveo, 882 F.3d at 889.
Tapia Coria’s related motion to remand would have a
similar result. This motion is akin to a motion to reopen and
is evaluated by the same standards, except that, unlike a
motion to reopen, it is made when the matter is still pending
before the BIA. See Alcarez-Rodriguez v. Garland, 89 F.4th
754, 759 (9th Cir. 2023); Rodriguez v. INS, 841 F.2d 865,
867 (9th Cir. 1987). Tapia Coria’s motion to remand to the
IJ would likewise not have the BIA affirm the removal order;
it would send the matter back to the IJ for more proceedings.
Here, that would effectively involve the IJ waiting for the U
visa process to run its course. Once again, the final order of
removal would be held pending additional developments.
This would “disturb the final order of removal,” Nasrallah,
140 S. Ct. at 1691, preventing an alien’s removal.
Our conclusion that Tapia Coria’s motion to remand
merges with her final order of removal finds further support
in longstanding Ninth Circuit precedent holding that “where
Congress explicitly withdraws our jurisdiction to review a
final order of deportation, our authority to review motions to
reconsider or to reopen deportation proceedings is thereby
likewise withdrawn.” Sarmadi v. INS, 121 F.3d 1319, 1322
TAPIA CORA V. GARLAND 15
(9th Cir. 1997); see also, e.g., Singh v. Barr, 982 F.3d 778,
782 (9th Cir. 2020); Ghahremani v. Gonzales, 498 F.3d 993,
998 n.5 (9th Cir. 2007); Briseno v. INS, 192 F.3d 1320, 1323
(9th Cir. 1999); Beltran-Leon v. INS, 134 F.3d 1379, 1380
(9th Cir. 1998).
Sarmadi involved a predecessor provision which stated
that “any final order of deportation against an alien who is
deportable by reason of having committed [a covered
offense] . . . shall not be subject to review by any court.”
Sarmadi, 121 F.3d at 1321 n.1 (quoting § 440 of the Anti-
Terrorism and Effective Death Penalty Act (AEDPA), as
amended by § 306(d) of IIRIRA). This provision was
repealed in September 1996, at the same time that
§ 1252(a)(2)(C) was enacted. See Omnibus Consolidated
Appropriations Act, 1997, Pub. L. 104–208, 110 Stat. 3009
(1996).
The petitioner in Sarmadi sought judicial review of the
BIA’s denial of his motion to reopen his removal
proceedings. 121 F.3d at 1321. But we held that Congress’s
“withdrawal of judicial review over final orders of
deportation also withdraws jurisdiction from motions to
reconsider or to reopen deportation proceedings for those
aliens deportable for having committed a crime enumerated
in the statute.” Id.; see also id. at 1322 (“Where an alien has
been ordered deported for crimes covered in § 440(a), we
lack jurisdiction to review the BIA’s denial of a motion to
reopen or to reconsider its decision.”).
In Tapia Coria’s case, we have applied this same basic
logic from Sarmadi in concluding that a motion to remand,
which is analogous to a motion to reopen, merges with the
final order of removal for purposes of § 1252(a)(2)(C). Any
16 TAPIA CORA V. GARLAND
different conclusion would be, in effect, contrary to Sarmadi
and its progeny.
2
We recognize that in Williams v. Garland, 59 F.4th 620
(4th Cir. 2023), a divided Fourth Circuit recently held that
the BIA’s denial of reconsideration or reopening of a prior
order of removal does not fall within § 1252(a)(2)(C)’s
jurisdictional bar, when the petitioner seeks “judicial review
of collateral facts far removed from the underlying ‘final
order of removal.’” Id. at 627. To reach this conclusion, the
Fourth Circuit reasoned that although Congress gave courts
of appeal jurisdiction to review the denials of motions to
reopen or reconsider a prior order of removal, “it said
nothing about extending § 1252(a)(2)(C) to our review of
reopening and reconsideration motions, even though it could
have easily” done so. Id. at 629. From this the Fourth
Circuit inferred that courts “retain jurisdiction to review all
aspects of the BIA’s decisions [on motions to reopen and
reconsider prior orders of removal] except where our review
clearly conflicts with § 1252(a)(2)(C)’s core statutory aims.”
Id. (internal quotation marks omitted). The latter “conflict”
would arise, the Fourth Circuit believed, only when the BIA
denies reopening based on “the substance of a removal
order.” Id. at 631 (emphasis in original). In those
circumstances, courts could not review the BIA’s factual
findings underlying a motion to reopen or reconsider; they
may do so only when the factual findings are “collateral” to
the underlying order finding a petitioner removable. Id. at
629.
We respectfully disagree with the Fourth Circuit’s
analysis in Williams, finding the Williams dissent more
persuasive. See id. at 644–50 (Rushing, J., dissenting). The
TAPIA CORA V. GARLAND 17
Fourth Circuit’s reasoning that § 1252(a)(2)(C) does not
explicitly extend to review of motions to reopen or
reconsider orders of removal fails to account for Nasrallah’s
direction that § 1252(a)(2)(C) covers not just final orders of
removal, but also orders that “merge into final orders of
removal”—that is, decisions that “affect the validity of the
final order of removal” or “disturb[] the final order of
removal,” or those “on which the validity of the final order
is contingent.” Nasrallah, 140 S. Ct. at 1691.
As the Williams dissent explained, motions to reopen or
reconsider removal orders meet this test because “the very
purpose of a motion to reopen or reconsider is to invalidate
a prior removal order.” 59 F.4th at 649 (Rushing, J.,
dissenting). Nor do we see how the Fourth Circuit’s holding
is consistent with our broader reasoning in Sarmadi that
“where Congress explicitly withdraws our jurisdiction to
review a final order of deportation, our authority to review
motions to reconsider or to reopen deportation proceedings
is thereby likewise withdrawn.” 121 F.3d at 1322; see also
Williams, 59 F.4th at 647 (Rushing, J., dissenting) (citing
Sarmadi and authorities from other circuits and explaining
that “[e]very other circuit to consider this question has
applied subparagraph (C) to petitions for review of Board
decisions denying reconsideration or reopening”); Durant v.
INS, 393 F.3d 113, 114 (2d Cir. 2004) (Sotomayor, J.) (“We
further hold that when an alien has been ordered removed
because of a conviction for one of the offenses specified in
§ 1252(a)(2)(C), the jurisdictional bar imposed by this
18 TAPIA CORA V. GARLAND
section also applies to an order denying a motion to reopen
removal proceedings.”), as amended (Feb. 1, 2005). 2
In sum, at least where the further proceedings, if
successful, would result in the undoing of the removal order,
which is the case here for the contemplated U visa relief, see
Cisneros-Rodriguez, 813 F.3d at 761; 8 C.F.R.
§ 214.14(c)(5)(i), Tapia Coria’s motions for administrative
closure and for remand would disturb the final order of
removal. The denial of those motions therefore merged into
the final order of removal and are considered part of the final
order of removal for purposes of judicial review. See
Nasrallah, 140 S. Ct. at 1691. And that means they are
subject to the criminal alien bar in 8 U.S.C.
§ 1252(a)(2)(C). 3
2
Williams is also factually distinguishable. In Williams, the relevant
factual finding in the BIA’s decision had nothing to do with the
petitioner’s underlying conviction, but instead concerned whether the
petitioner’s immigration attorney had offered her services pro bono,
which affected whether petitioner was diligent in seeking to reopen his
immigration proceedings. 59 F.4th at 627. If the petitioner in Williams
could get past this factual issue and the BIA granted the motion to
reopen, it was clear that he had a winning argument on the law, because
under intervening Supreme Court precedent he could no longer be
classified as an aggravated felon. Id. at 629. Indeed, “the government
d[id] not even dispute that Williams would succeed on it.” Id. No
analogous circumstances are present here.
3
Similarly, we have recognized that the denial of asylum and
withholding of removal fall within the final order of removal and are
subject to § 1252(a)(2)(C) “unless an exception applies.” Pechenkov,
705 F.3d at 448.
TAPIA CORA V. GARLAND 19
B
The next question is whether, under pre-Nasrallah
circuit precedent, we have jurisdiction over Tapia Coria’s
petition because it meets an exception to § 1252(a)(2)(C).
1
Under existing circuit precedent, “§ 1252(a)(2)(C)’s
jurisdictional bar is subject to two exceptions.” Pechenkov
v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). The first is
found in the next subsection of the statute. Section
1252(a)(2)(C) strips jurisdiction “except as provided in
subparagraph (D),” which grants us jurisdiction to review
“constitutional claims or question of law.” 8 U.S.C.
§ 1252(a)(2)(D).
But, as confirmed at oral argument, Tapia Coria
advances no colorable constitutional claim or question of
law. Tapia Coria’s argument here is that the BIA mistakenly
concluded that her prospects of securing a derivative U visa
were speculative. She argues, for example, that evidence in
the record and statistics available on a website indicate that
her U visa application would be processed in the near future,
that the “favorable equities in her case outweigh her one
blemish,” that she has strong family ties in the United States,
and that she otherwise met the factors in Matter of Avetisyan,
25 I. & N. Dec. at 696, all making it likely that USCIS would
grant the visa as a matter of discretion. This presents a
factual challenge to the BIA’s ruling. Section 1252(a)(2)(D)
thus does not restore our jurisdiction here.
But in the absence of intervening higher authority, this
would not be fatal to our review because Tapia Coria’s
petition would fall within the second exception to
§ 1252(a)(2)(C)—our circuit’s “on the merits” exception.
20 TAPIA CORA V. GARLAND
Under that exception, we have jurisdiction notwithstanding
the criminal alien bar when “an IJ denies relief on the merits,
for failure to demonstrate the requisite factual grounds for
relief, rather than in reliance on the conviction.” Pechenkov,
705 F.3d at 448 (emphasis in original). Thus, for example,
when an IJ denied statutory withholding of removal on the
ground that the petitioner was ineligible for that relief
because he had been convicted of a “particularly serious
crime,” 8 U.S.C. § 1231(b)(3)(B)(ii), we held that we lacked
jurisdiction under the criminal alien bar. Pechenkov, 705
F.3d at 449. But if the IJ had denied this relief for reasons
other than “the crime underlying [petitioner’s]
removability”—such as a lack of likely persecution on
account of a protected ground in the country of removal—
then we would have had jurisdiction to review the IJ’s factual
findings, which would be considered findings “on the
merits.” Id. at 448–49.
The precursor of our “on the merits” exception appears
to be Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. 2003).
In that case, the government charged the petitioner with
removability both for entering the United States without
permission and based on a criminal conviction for domestic
violence. Id. at 1248. The IJ sustained the former charge
but expressly rejected the theory that petitioner was
removable due to a covered criminal offense. Id. at 1249.
The BIA later found that the petitioner was not entitled to
voluntary departure because he had admitted the essential
elements of spousal abuse. Id. When the petitioner sought
review of the agency’s denial of asylum and withholding of
removal, the government argued that § 1252(a)(2)(C)
prevented our jurisdiction “of an otherwise reviewable
removal order where the record establishes that the
individual could have been but was not ordered removed for
TAPIA CORA V. GARLAND 21
having committed a covered criminal offense.” Id. at 1250
(emphasis in original).
We disagreed. Considering § 1252(a)(2)(C)—which
again states that “no court shall have jurisdiction to review
any final order of removal against an alien who is removable
by reason of having committed a [covered] criminal
offense”—we thought the statutory language unclear. Id.
“On the one hand, ‘removable by reason of having
committed a criminal offense’ could refer back to the
‘reason’ for the ‘final order of removal’ under review.” Id.
But on the other hand, “the ‘removable’ phrase could refer
to circumstances that exist but were not the basis for the
‘final order of removal.’” Id. The petitioner in Alvarez-
Santos was effectively outside either of these potential
definitions of § 1252(a)(2)(C) because he had never been
found removable by reason of a covered conviction (indeed,
as we have noted, the IJ found he was not removable due to
a criminal conviction). See Penchenkov, 705 F.3d at 450
(Graber, J., concurring) (making this same point about
Alvarez-Santos). Nevertheless, relying on a presumption of
judicial review, the principle of construing immigration
statutes in favor of aliens, and a reading of other statutory
provisions, Alvarez-Santos concluded that § 1252(a)(2)(C)
“precludes judicial review only when an alien is actually
determined to be removable and ordered removed on the
basis of a covered criminal act.” 332 F.3d at 1253 (emphasis
added).
Two years later, in Unuakhaulu v. Gonzales, 416 F.3d
931 (9th Cir. 2005), we treated Alvarez-Santos as having
created an exception to § 1252(a)(2)(C) when an alien is
“removable” based on a conviction yet “ordered removed”
for other reasons. 416 F.3d at 936–37 (emphasis in original).
We concluded that the phrase “removable by reason of
22 TAPIA CORA V. GARLAND
having committed a criminal offense” in § 1252(a)(2)(C)
does not simply mean that the alien “was removable on the
basis of the covered criminal act.” Id. at 936–37 (emphasis
in original). Instead, it requires that a person be “ordered
removed for having committed a covered criminal offense.”
Id. at 936 (quoting Alvarez-Santos, 332 F.3d at 1253)
(emphasis in original).
In Unuakhaulu, the IJ found the petitioner removable for
two reasons, one of which was a criminal conviction for
which § 1252(a)(2)(C) applies. Id. at 933, 936–37. But the
IJ found that this conviction did not disqualify the petitioner
from pursuing statutory withholding of removal because it
did not rise to the level of a “particularly serious crime.” Id.
at 933–34 (citing 8 U.S.C. § 1231(b)(3)(B)). The IJ instead
denied withholding of removal and CAT relief “on the
merits” based on the unlikelihood that petitioner would face
persecution in Nigeria. Id. at 934, 936–37. And “[a]lthough
the IJ could have ordered Unuakhaulu removed based on his
aggravated felony conviction, she did not explicitly do so.”
Id. at 937. Because the IJ in Unuakhaulu “neither specified
the basis upon which Unuakhaulu was removed nor stated
that Unuakhaulu was ordered removed based on the
charges,” and because the IJ denied withholding of removal
and CAT relief “on the merits,” we concluded that
§ 1252(a)(2)(C) did not apply. Id. We thus proceeded to
review the factual findings underlying the denial of
withholding of removal and CAT relief. See id. at 937–39.
Judges on this court have criticized our “on the merits”
exception. Our colleague Judge Graber has written that
“Unuakhaulu and its progeny misread § 1252(a)(2)(C)’s ‘by
reason of’ phrase as applying to the order of removal,
limiting the jurisdictional bar to cases in which the relevant
conviction is the final reason for that order.” Pechenkov, 705
TAPIA CORA V. GARLAND 23
F.3d at 451 (Graber, J., concurring) (emphasis in original).
In Judge Graber’s view, “the only relevant question is
whether an IJ has made a finding of removability because of
a relevant conviction.” Id. (emphasis in original). Judge
Graber noted that “[a]t least four of our sister circuits have
adopted this textually based view of § 1252(a)(2)(C)’s
jurisdiction-stripping provision,” whereas the “on-the-
merits” exception “appears limited to the Ninth Circuit.” Id.
at 450. Judge Graber thus “urge[d] the court to consider
revisiting, in an appropriate case, our mistaken reading of
§ 1252(a)(2)(C).” Id. at 452; see also Oseida v. Garland,
2021 WL 5742717, at *1 (9th Cir. Dec. 2, 2021) (Miller, J.,
concurring in part and dissenting in part) (describing the “on
the merits” exception as “inconsistent” with
§ 1252(a)(2)(C)); Alphonsus v. Holder, 705 F.3d 1031, 1050
(9th Cir. 2013) (Graber, J., concurring in part and dissenting
in part) (“Our court has read an additional exception into the
statute’s otherwise unequivocal text, under which we review
such orders if the BIA did not rest its decision on the fact of
the aggravated felony but instead denied relief from removal
on the merits. That interpretation of § 1252(a)(2)(C) ignores
the statute’s text and conflicts with the views of at least four
of our sister circuits.”), abrogation on other grounds
recognized by Guerrero v. Whitaker, 908 F.3d 541, 544 (9th
Cir. 2018).
Relying on Judge Graber’s criticisms, at least two other
circuits have explicitly rejected our “on the merits”
exception. See Ortiz-Franco v. Holder, 782 F.3d 81, 90 (2d
Cir. 2015), abrogated on other grounds by Nasrallah, 140 S.
Ct. 1683; Ventura-Reyes v. Lynch, 797 F.3d 348, 357–58
(6th Cir. 2015), abrogated on other grounds by Nasrallah,
24 TAPIA CORA V. GARLAND
140 S. Ct. 1683. We are not aware of any other circuit that
has adopted our “on the merits” exception. 4
As a three-judge panel, we are not free to depart from the
“on the merits exception” based on the criticisms that have
been levied against it or because it is an apparent outlier
exception among the circuits. Prior to Nasrallah—the
import of which we take up below—we have thus continued
to apply the “on the merits” exception to review factual
challenges to final orders of removal when the petitioner
would otherwise fall under the criminal alien bar, so long as
the IJ or BIA did not explicitly deny relief based on the
relevant conviction. See, e.g., Agonafer v. Sessions, 859
F.3d 1198, 1202–03 (9th Cir. 2017); Garcia v. Lynch, 798
4
As we noted above, the Fourth Circuit in Williams recently held that
even though the BIA’s denial of reconsideration or reopening of a prior
removal order does not implicate § 1252(a)(2)(C), courts in this situation
may still only review factual issues “collateral” to the underlying
removal order. 59 F.4th at 627. Although it is not clear under Williams
how “collateral” to the removal order these facts must be, see id.
(referencing “collateral facts far removed from” the underlying removal
order) (emphasis added), it may be that in practice, and at least in the
context of motions to reopen or reconsider, the Fourth Circuit would
review similar types of facts for which our “on the merits” exception
would permit review. But the Fourth Circuit’s approach is not the same
as our “on the merits” exception. In Williams, the Fourth Circuit treated
motions to reopen and reconsider as outside of § 1252(a)(2)(C), but then
created a limit on judicial review to prevent courts from entertaining the
“same” objection to the underlying removability finding “dressed as a
motion to reconsider.” Id. at 628 (emphasis in original). Our “on the
merits” exception is analytically distinct. We treat motions to reopen
and other similar orders as falling under § 1252(a)(2)(C) and part of the
final order of removal, but we allow an exception for “merits” rulings
based on a reading of the statutory text and principles of statutory
construction. See Unuakhaulu, 416 F.3d at 936–37. We do not view the
Fourth Circuit as having adopted our “on the merits” exception.
TAPIA CORA V. GARLAND 25
F.3d 876, 880–81 (9th Cir. 2015); Bromfield v. Mukasey, 543
F.3d 1071, 1075–76 (9th Cir. 2008).
This exception allows us to review denials of CAT relief
when the criminal alien bar would otherwise apply. As we
have reasoned, “when an IJ does not rely on an alien’s
conviction in denying CAT relief and instead denies relief
on the merits,” § 1252(a)(2)(C) does not divest us of
jurisdiction. Morales v. Gonzales, 478 F.3d 972, 980 (9th
Cir. 2007), abrogated on other grounds by Anaya-Ortiz v.
Holder, 594 F.3d 673, 677–78 (9th Cir. 2010); see also, e.g.,
Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir.
2008), overruled on other grounds by Maldonado v. Lynch,
786 F.3d 1155 (9th Cir. 2015) (explaining that “because the
determination of the likelihood of torture is a decision on the
merits, we have jurisdiction over petitions seeking review of
such decisions”).
Importantly, the Supreme Court in Nasrallah affirmed
the result of our CAT cases applying the “on the merits”
exception, but not our reasoning. In the face of
§ 1252(a)(2)(C), our case law allowing review of IJ factual
determinations when denying CAT relief presupposed that
the denial of CAT relief was part of the final order of
removal and within § 1252(a)(2)(C). But we treated these
factual findings as reviewable when the denials were “on the
merits” as opposed to on the basis of the criminal conviction
that would otherwise preclude jurisdiction. See, e.g.,
Morales, 478 F.3d at 980–81. The Supreme Court in
Nasrallah instead held that the denial of CAT relief was not
part of the final order of removal at all, so that
§ 1252(a)(2)(C) simply did not apply. Nasrallah, 140 S. Ct.
at 1691–92. Thus, after Nasrallah, we still have jurisdiction
to review factual findings underlying the denial of CAT
26 TAPIA CORA V. GARLAND
relief, but for the different reason that CAT orders are neither
part of the final order of removal nor merge into it.
We will have more to say below in Part II.C about the
interaction between Nasrallah and our “on the merits”
exception.
2
The government briefly argues that even if the “on the
merits” exception remains good law after Nasrallah, that
exception was still not met here. If true, that would obviate
our need to consider whether Nasrallah abrogates the “on
the merits” exception. But assuming for present purposes
that our “on the merits” exception remains valid, it would
apply here to restore our jurisdiction.
In denying Tapia Coria’s motion to remand and motion
for administrative closure, the BIA found that it was
speculative whether and when Tapia Coria would receive a
derivative U visa. In the course of this analysis, the BIA
referenced the fact that Tapia Coria’s “likelihood of success”
in obtaining a U visa was “diminished by the need for an
admissibility waiver.” Although the BIA did not at this point
explicitly mention Tapia Coria’s methamphetamine
conviction, that conviction was the reason Tapia Coria
needed a U visa admissibility waiver. From this evident
reference to Tapia Coria’s conviction, the government
argues that the BIA did not deny relief “on the merits,” and
instead based on the conviction that triggers
§ 1252(a)(2)(C).
That is not correct. We have stated that § 1252(a)(2)(C)
“bars review only of those orders that are actually
‘predicated on commission or admission of a crime.’”
Garcia, 798 F.3d at 880 (emphasis altered) (quoting
TAPIA CORA V. GARLAND 27
Unuakhaulu, 416 F.3d at 936). That is, § 1252(a)(2)(C)
applies only when relief is denied “on the basis of the
qualifying conviction.” Id. (emphasis added). We have thus
concluded that the “on the merits” exception does not apply
when the IJ “did not address the merits” of the petitioner’s
request for relief but instead found him “statutorily ineligible
for that relief” based on his conviction. Pechenkov, 705 F.3d
at 449 (emphasis added).
Here, the BIA denied Tapia Coria’s motion to remand
and motion for administrative closure “on the merits” of
those requests, and at best referenced her conviction as one
factor in that overall determination. Even then, the BIA’s
reference to her conviction did not pertain to the validity of
that conviction or the facts and legal elements underlying it.
Instead, the conviction was relevant to the different “merits”
question of whether Tapia Coria’s derivative U visa
application was likely to be granted. We have never
suggested that the criminal alien bar would apply in this
circumstance, when the BIA’s reason for denying relief
involved only a passing reference to the conviction. Instead,
we have stated that under the “on the merits” exception, we
“retain jurisdiction to review the BIA’s denial of [relief] to
the extent the BIA rested its decision on a ground other than
[the petitioner’s] conviction.” Flores v. Barr, 930 F.3d
1082, 1087 (9th Cir. 2019) (per curiam) (emphasis added).
Flores is instructive in this regard. There, the IJ denied
discretionary relief from removal under former § 212(c) of
the Immigration and Nationality Act after balancing the
petitioner’s positive factors against his negative ones,
including a conviction that otherwise triggered the criminal
alien bar. Id. at 1084–85. In reviewing the BIA’s denial of
the petitioner’s motion to reopen, we held that we had
jurisdiction under the “on the merits” exception insofar as
28 TAPIA CORA V. GARLAND
the BIA denied relief on grounds other than the criminal
conviction. Id. at 1087. Thus, even assuming that we are
barred from reviewing the portion of the BIA’s denial of
Tapia Coria’s motions to remand and for administrative
closure that references Tapia Coria’s conviction—which we
doubt—there would be no basis to bar our review entirely.
We thus conclude that if the “on the merits” exception
remains good law, Tapia Coria would fall within it. We
therefore must confront whether our circuit’s “on the merits”
exception is clearly irreconcilable with Nasrallah.
C
Nasrallah of course did not directly address the “on the
merits” exception. And the Supreme Court in Nasrallah
described the issue before it as “the narrow” one of whether
an alien subject to § 1252(a)(2)(C) may obtain review of
factual challenges to a CAT order. 140 S. Ct. at 1688. But
in assessing when a three-judge panel may (indeed, must)
recognize that intervening higher authority has abrogated
circuit precedent, “the issues decided by the higher court
need not be identical in order to be controlling.” Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
Instead, “where the reasoning or theory of our prior circuit
authority is clearly irreconcilable with the reasoning or
theory of intervening higher authority, a three-judge panel
should consider itself bound by the later and controlling
authority, and should reject the prior circuit opinion as
having been effectively overruled.” Id. at 893.
Consistent with this directive from Miller v. Gammie,
three-judge panels from this court have on various occasions
concluded that the reasoning or theory of intervening
Supreme Court precedent abrogates Ninth Circuit authority.
See, e.g., SEIU Loc. 121RN v. Los Robles Reg’l Med. Ctr.,
TAPIA CORA V. GARLAND 29
976 F.3d 849, 854–55 (9th Cir. 2020); Murray v. Mayo
Clinic, 934 F.3d 1101, 1105–06 (9th Cir. 2019); Dorman v.
Charles Schwab Corp., 934 F.3d 1107, 1111–12 (9th Cir.
2019); Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d
975, 980–81 (9th Cir. 2013); Cardenas-Delgado v. Holder,
720 F.3d 1111, 1119–21 (9th Cir. 2013).
In this case, we conclude that our “on the merits”
exception to 8 U.S.C. § 1252(a)(2)(C) is clearly
irreconcilable with the reasoning and theory of Nasrallah.
The “on the merits” exception allows judicial review of
certain factual challenges to orders that we have treated as
within the ambit of § 1252(a)(2)(C)’s “final order of
removal,” based on an interpretation of the phrase
“removable by reason of having committed a criminal
offense” in § 1252(a)(2)(C). See Unuakhaulu, 416 F.3d at
936–37; see also Pechenkov, 705 F.3d at 451 (Graber, J.,
concurring).
Nasrallah’s reasoning and theory direct a completely
different approach to § 1252(a)(2)(C). Nasrallah instructs
courts to determine whether an order is part of the “final
order of removal,” which includes orders that “merge into
the final order of removal.” Nasrallah, 140 S. Ct. at 1691.
If the agency’s denial of relief is not such an order—such as
an order denying CAT relief—an alien can obtain judicial
review of factual challenges. Id. at 1691–92. But if an order
does count as a “final order of removal” under
§ 1252(a)(2)(C), Nasrallah is crystal clear: “the court of
appeals may not review factual challenges to a final order of
removal.” Id. at 1690 (emphasis in original).
The Supreme Court reiterated this point throughout
Nasrallah. Under Nasrallah, if an alien has “committed any
crime specified in 8 U.S.C. § 1252(a)(2)(C), federal law
30 TAPIA CORA V. GARLAND
limits the scope of judicial review[:] Those noncitizens may
obtain judicial review of constitutional and legal challenges
to the final order of removal, but not of factual challenges to
the final order of removal.” Id. at 1687–88. And again:
“When a noncitizen is removable because he committed a
crime specified in § 1252(a)(2)(C), immigration law bars
judicial review of the noncitizen’s factual challenges to his
final order of removal.” Id. at 1689. As the Supreme Court
concluded, “[t]he relevant statutory text precludes judicial
review of factual challenges to final orders of removal.” Id.
at 1691; see also id. at 1694 (same). The Supreme Court’s
categorical interpretation of § 1252(a)(2)(C)—as
disallowing review of factual challenges to final orders of
removal—is clearly irreconcilable with our determination
that we may review certain factual challenges to denials of
relief that are considered part of the final order of removal.
Nasrallah’s actual holding was also dependent on its
view that “the court of appeals may not review factual
challenges to a final order of removal.” Id. at 1690
(emphasis in original). The petitioner in Nasrallah was
seeking review of a factual finding made in denying him
CAT relief. Id. at 1688–89. If review of such a factual
determination was already permitted under § 1252(a)(2)(C),
the Court would not have needed to decide whether a CAT
order was part of the final order of removal. It was only
because § 1252(a)(2)(C) “preclude[s] judicial review of the
noncitizen’s factual challenges to a final order of removal”
that the Supreme Court had to determine whether a CAT
order was, at the outset, part of the final order of removal or
“distinct” from it. Id. at 1694. Indeed, the denial of CAT
relief in Nasrallah was itself made “on the merits” and not
based on the conviction that would have provided the basis
for removability. See id. at 1688–89.
TAPIA CORA V. GARLAND 31
We address a potential counterargument arising from
Nasrallah that appears to have influenced the Fourth
Circuit’s decision in Williams. See Williams, 59 F.4th at
628–29. After laying out the appropriate approach to decide
whether an order denying relief forms part of the “final order
of removal,” Nasrallah addressed several responses from the
government, including one about congressional intent:
“Why would Congress bar review of factual challenges to a
removal order, but allow factual challenges to a CAT order?”
Nasrallah, 140 S. Ct. at 1693. Nasrallah’s first answer was
that “we must adhere to the statutory text, which
differentiates between the two kinds of orders for those
purposes.” Id.
But the Court went on to explain that “Congress had
good reason to distinguish the two.” Id. For final orders of
removal, “[t]he relevant facts will usually just be the
existence of the noncitizen’s prior criminal convictions,” so
that “[b]y barring review of factual challenges to final orders
of removal, Congress prevented further relitigation of the
underlying factual bases for those criminal convictions.” Id.
But CAT orders were different, Nasrallah explained,
because “the issues related to a CAT order will not typically
have been litigated prior to the alien’s removal proceedings.”
Id. Those factual issues included “the noncitizen’s past
experiences in the designated country of removal” and “the
political or other current conditions in that country.” Id. In
the Supreme Court’s view, “[b]ecause the factual
components of CAT orders will not previously have been
litigated in court and because those factual issues may be
critical to determining whether the noncitizen is likely to be
tortured if returned, it makes some sense that Congress
would provide an opportunity for judicial review . . . of the
factual components of a CAT order.” Id. Based on this
32 TAPIA CORA V. GARLAND
passage from Nasrallah, the Fourth Circuit in Williams
concluded that Congress did not intend § 1252(a)(2)(C) to
prevent courts from reviewing “collateral” issues distinct
from the factual bases of the underlying convictions.
Williams, 59 F.4th at 629.
This reading of Nasrallah is not correct, nor does this
passage in Nasrallah support our “on the merits” exception.
The Supreme Court was clear that the first reason factual
challenges to CAT orders were different from factual
challenges to final orders of removal was because the
“statutory text . . . differentiates between the two kinds of
orders.” Nasrallah, 140 S.Ct. at 1693. It is that textual
analysis in Nasrallah—defining what qualifies as final
orders of removal, and then making clear that judicial review
does not extend to factual challenges to such orders—that is
clearly irreconcilable with the reasoning and theory of our
“on the merits” exception.
The remainder of the Nasrallah passage in question does
not resuscitate the “on the merits” exception. There, the
Supreme Court was discussing the types of factual
challenges that are “usually” or “typically” associated with
challenges to CAT orders and final orders of removal. Id.
In making that descriptive observation, the Supreme Court
was not laying down any kind of rule that factual challenges
to “the merits” of a final order of removal remain reviewable
notwithstanding § 1252(a)(2)(C). Such an interpretation
would be directly contrary to the core holding and logic of
Nasrallah, which is that when it comes to final orders of
removal and orders that merge into them, “the court of
appeals may not review factual challenges” because “the
TAPIA CORA V. GARLAND 33
relevant statutory text precludes” it. Id. at 1690–91
(emphasis in original). 5
D
Because Nasrallah is clearly irreconcilable with our “on
the merits” exception to § 1252(a)(2)(C), we hold that this
exception should no longer apply. Following Nasrallah,
courts should now undertake the following straightforward
analysis when deciding whether the criminal alien bar
precludes judicial review.
Courts must first determine whether the denial of relief
raised in a petition for review is part of the final order of
removal or merges with it. See Nasrallah, 140 S. Ct. at 1691.
If so, and if the petitioner is removable based on a conviction
covered by § 1252(a)(2)(C), then we lack jurisdiction to
review factual challenges to the final order of removal and
may only review constitutional claims or questions of law
under § 1252(a)(2)(D). See id. at 1690–91; see also
Pechenkov, 705 F.3d at 451–52 (Graber, J., concurring). But
if the denial of relief is not considered part of the “final order
of removal,” as is true with a CAT order, we can review
5
We note that our decision today does not disturb the result in Alvarez-
Santos. Unuakhaulu and its progeny forged the “on the merits”
exception based on an extension of the reasoning in Alvarez-Santos. See
Pechenkov, 705 F.3d at 450 (Graber, J., concurring) (“In Unuakhaulu,
we took Alvarez-Santos a step further.”). But as we have discussed, the
key issue on which Alvarez-Santos relied was that the IJ did not find that
the petitioner was removable due to a conviction covered by
§ 1252(a)(2)(C). See 332 F.3d at 1249. Alvarez-Santos stands for the
proposition that for the criminal alien bar to apply, there must be an
agency “determination that the alien is removable” based on a covered
conviction. Id. at 1251. We have no occasion in this case to decide
whether Nasrallah or other intervening law changes this threshold
requirement in Alvarez-Santos, which therefore remains intact.
34 TAPIA CORA V. GARLAND
factual challenges notwithstanding a criminal conviction
that would otherwise implicate § 1252(a)(2)(C). Nasrallah,
140 S. Ct. at 1690–91.
We now recap how this framework applies in this case.
As we explained in Part II.A, the denial of Tapia Coria’s
motions to remand and for administrative closure merges
with her final order of removal. That is, a decision on those
two motions would “affect the validity of the final order of
removal” and would “disturb the final order of removal,” and
they are motions “on which the validity of the final order is
contingent.” Nasrallah, 140 S. Ct. at 1691. There is no
dispute that, as a legal matter, Tapia Coria’s conviction is a
covered offense under § 1252(a)(2)(C). We therefore lack
jurisdiction to review Tapia Coria’s challenge to the BIA’s
factual finding that it is speculative whether and when Tapia
Coria will obtain derivative U visa relief. We could have
reviewed any constitutional claims or questions of law had
Tapia Coria raised them. But she has not.
Accordingly, the petition for review is
DISMISSED.