The Ninth Circuit has determined that it is precluded by the “criminal alien bar” from reviewing the denial of procedural motions (in this case, a motion to remand and a motion to administratively close proceedings).
“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.’” The court recognized that it was creating a circuit split with the Fourth Circuit’s decision in Williams.
“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. 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). 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 factual challenges notwithstanding a criminal conviction that would otherwise implicate § 1252(a)(2)(C).’”
The full text of Tapia Cora v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/19/22-970.pdf