Ninth Circuit Abrogates "on the Merits" Exception to Criminal Alien Bar

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

The amended decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/16/22-970.pdf

SCOTUS Construes Jurisdiction to Review Removal Orders

The Supreme Court has determined that questions of law include the application of a legal standard to undisputed or established facts. This arises in the context of the “criminal alien bar,” which limits jurisdiction of review in federal appellate courts to constitutional claims and questions of law when the petitioner has been convicted of certain removable criminal offenses. The Fifth Circuit had determined that whether a petitioner had acted with sufficient due diligent to warrant equitable tolling of the 90-day deadline for a motion to reopen was a question of fact that could not reviewed if the criminal alien bar had been triggered. Both requests for equitable tolling were premised on new Fifth Circuit case law, and there was no dispute as to how long after that case law came out the petitioners waited to file their motions to reopen.

The court remanded the cases for the Fifth Circuit to exercise jurisdiction over the appeals and determine if equitable tolling was appropriate.

The full text of Guerrero-Lasprilla v. Barr can be found here:

https://www.supremecourt.gov/opinions/19pdf/18-776_8759.pdf