November 28, 2017
Petition for Review of an Order of the Board of Immigration
Appeals. No. A098-644-509
Bauer, Rovner, and Sykes, Circuit Judges.
Alberto Mejia Galindo, a native of Honduras and a lawful
permanent resident, faces removal from the United States as a
result of three Kentucky convictions for possession of drug
paraphernalia. The immigration judge determined that
Mejia Galindo is not removable under 8 U.S.C. §
1227(a)(2)(B)(i) as an alien convicted of a
controlled-substance offense. The Board of Immigration
Appeals reversed and purported to enter a removal order.
Mejia Galindo petitions for review.
jurisdiction to review the Board's determination that the
drug-paraphernalia convictions qualify as
controlled-substance offenses. The Immigration and
Nationality Act ("INA") empowers us to review only
a "final order of removal." 8 U.S.C. § 1252. A
final removal order is created in two steps. First, the
immigration judge must conclude that the alien is removable.
Id. § 1101(a)(47)(A). Second, the immigration
judge's removal order becomes "final" upon
"a determination by the Board of Immigration Appeals
affirming such order." Id. §
1101(a)(47)(B). Here, the immigration judge never made the
requisite finding of removability, so there is no final order
of removal to review.
we lack jurisdiction to review the Board's classification
of the drug-paraphernalia offenses, our jurisdiction to
consider our own jurisdiction includes the authority to
vacate the Board's decision and remand as a remedy for
the legal error we have identified in our jurisdictional
decision. See Rhodes-Bradford v. Keisler, 507 F.3d
77, 81-82 (2d Cir. 2007). Because the Board lacked the
authority to issue a removal order in the first instance, we
vacate and remand its ultra vires order.
Galindo legally entered the United States in 2001 and became
a lawful permanent resident in 2007. Soon thereafter he
amassed three convictions for possession of drug
paraphernalia in violation of section 218A.500(2) of the
Kentucky Statutes. In response the Department of Homeland
Security initiated removal proceedings, charging Mejia
Galindo with removability under § 1227(a)(2)(B)(i) as an
alien convicted of a controlled-substance offense.
Galindo moved to terminate the removal proceedings. To
determine whether his paraphernalia convictions qualify as
removable offenses, the immigration judge applied the
familiar "categorical" and "modified
categorical" approaches. Under the categorical approach,
an alien's state conviction renders him removable if it
"necessarily estab-lishe[s]" a violation of federal
law. Mellouli v. Lynch, 135 S.Ct. 1980, 1987 (2015).
The modified categorical approach applies if a divisible
statute "proscribes multiple types of conduct, some of
which would constitute a [removable offense] and some of
which would not." Lopez v. Lynch, 810 F.3d 484,
489 (7th Cir. 2016) (quoting Familia Rosario v.
Holder, 655 F.3d 739, 743 (7th Cir. 2011)). If
that's the case, a court may "consult a limited
class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis
of the defendant's prior conviction." Descamps
v. United States, 570 U.S. 254, 257 (2013).
immigration judge first determined that Mejia Galindo is not
removable under the categorical approach. He reasoned that
the Kentucky statute criminalizes paraphernalia for three
drugs that are not proscribed by federal law-tramadol,
carisoprodol, and nalbuphine. As a consequence, Mejia
Galindo's drug-paraphernalia convictions do not
necessarily establish a violation of the federal
controlled-substance statute. Next, the immigration judge
concluded that the modified categorical approach does not
apply because the paraphernalia statute is not divisible.
Based on these findings, the immigration judge terminated the
Board reversed, finding that Mejia Galindo's convictions
necessarily establish a controlled-substance violation.
Despite the facial mismatch between the state and federal
statutes, the Board determined that there is no
"realistic probability" that Mejia Galindo's
conviction involved tra-madol, carisoprodol, or nalbuphine.
See Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)
(holding that a state statute is overbroad if there is
"a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls
outside the generic definition of a crime") (internal
quotation marks omitted). Instead of remanding for the
immigration judge to enter a removal order, the Board
purported to enter a removal order on its own.
Galindo petitioned for review, contending that he is not
removable and, in any event, the Board lacks the authority to
enter a removal order in the first instance.