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Galindo v. Sessions

United States Court of Appeals, Seventh Circuit

July 31, 2018

Carlos Alberto Mejia Galindo, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued November 28, 2017

          Petition for Review of an Order of the Board of Immigration Appeals. No. A098-644-509

          Before Bauer, Rovner, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Carlos 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.[1] 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.

         We lack 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.

         Although 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.

         I. Background

         Mejia 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.

         Mejia 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).

         The 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 removal proceedings.

         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.

         Mejia 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.

         II. ...


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