Mejia Galindo v. Sessions: 7th Circuit Holds BIA Lacks Authority to Enter Removal Order in the First Instance


Introduction: Mejia Galindo v. Sessions

On July 31, 2018, the United States Court of Appeals for the Seventh Circuit issued a published decision in Mejia Galindo v. Sessions, —- F.3d —— (7th Cir. 2018) [PDF version]. In an opinion authored by Judge Diane Sykes, the three-judge panel vacated a removal order issued by the Board of Immigration Appeals (BIA) because it was improperly issued by the BIA in the first instance, and remanded the case for further proceedings consistent with its opinion.

In this article, we will review the opinion by Judge Sykes and explain its significance in the context of immigration appeals to the BIA. It is worth noting that decisions of the Seventh Circuit are binding on cases arising in Illinois, Indiana, and Wisconsin, but also that the Seventh Circuit joined several other circuits in reaching its conclusion.

Factual and Procedural History

The petitioner, Carlos Alberto Mejia Galindo, entered the United States legally in 2001 and became a lawful permanent resident in 2007. After becoming a lawful permanent resident, Mejia Galindo had three convictions for possession of drug paraphernalia in violation of section 218A.500(2) of the Kentucky Statutes.

The Department of Homeland Security (DHS) initiated removal proceedings against Mejia Galindo based on his three convictions for possession of drug paraphernalia. It charged him as removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA) [see section].

In removal proceedings before an immigration judge, Mejia Galindo contested his removability. His argument was based on the fact that the Kentucky statute of conviction criminalized the possession of paraphernalia associated with, in addition to other controlled substances, three drugs that are not included in the federal drug schedules. Under Mellouli v. Lynch, 135 S.Ct. 1980 [PDF version] [see article], Mejia Galindo's conviction would only be a removable offense if it necessarily established that he had violated federal law. The Immigration Judge applied the categorical approach and determined that Mejia Galindo's conviction was not necessarily a violation of federal law in his case because of the state statute's inclusion of the three drugs not on the federal drug schedules. The Immigration Judge then determined that the modified categorical approach did not apply because the statute of conviction was not divisible with respect to the three drugs not on the federal drug schedule [see article]. For these reasons, the Immigration Judge terminated the removal proceedings.

The Government appealed from the Immigration Judge's decision to the BIA. The Board held that there was no “realistic probability” that Mejia Galindo's conviction involved one of the three controlled substances criminalized in Kentucky that are not covered by the federal drug schedules, applying the Supreme Court of the United States decision in Moncrieffe v. Holder, 569 U.S. 184 (2013) [PDF version]. However, instead of remanding the record to the Immigration Judge for the issuance of a removal order, the Board issued the removal order itself.

Mejia Galindo appealed from the Board's decision to the Seventh Circuit.

Issues Before the Seventh Circuit

Mejia Galindo made two arguments on appeal to the Seventh Circuit.

First, Mejia Galindo contested his underlying removability, again arguing that the Kentucky statute of conviction was categorically overbroad with respect to the federal drug schedules and therefore did not constitute a removable offense.

Second, Mejia Galindo argued that, even were the Seventh Circuit to not rule favorably on his first argument, the Board lacked the authority to enter a removal order in the first instance.

Seventh Circuit Analysis and Conclusions

Under section 242(a)(1) of the INA, federal appellate courts only have jurisdiction to review a decision of the Board if it constitutes a “final order of removal.” A final order of removal occurs when (1) an immigration judge concludes that the alien is deportable or removable, and (2) the Board affirms the order or the alien does not seek review of the order. The Seventh Circuit discussed this process in its published decision in Guevara v. Gonzales, 472 F.3d 972, 976 (7th Cir. 2007) [PDF version].

In the instant case, the immigration judge never entered an order of removal, having found that Mejia Galindo was not removable. Nevertheless, “[t]he Board reversed and purported to enter a removal order.” Because jurisdiction over the BIA's order would only vest in the Seventh Circuit if a “final order of removal” was entered, the Seventh Circuit had to first determine whether any such order had been entered. For the foregoing reasons, the Seventh Circuit concluded that no removal order had been entered by the Board because the Board did not have the authority to enter an order of removal in the first instance.

The Seventh Circuit began by explaining that section 101(a)(47) of the INA “contemplates a sequential removal process with the immigration judge serving as fact-finder and the Board serving as an appellate body.” In Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1145 (10th Cir. 2007) [PDF version], the United States Court of Appeals for the Tenth Circuit noted in discussion that the Board, as an appellate body, has “limitations on its ability to engage in fact-finding.” The Seventh Circuit found that this interpretation of section 101(a)(47) is in accord with section 240(a)(1), which states that “[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or removability of an alien.” Section 240(c)(1)(A) adds that “the immigration judge shall decide whether an alien is removable from the United States.” Furthermore, the Seventh Circuit explained that section 240(a)(3) of the INA provides that removal proceedings conducted under section 240 “shall be the sole and exclusive procedure for determining whether an alien may be … removed from the United States.”

The Seventh Circuit then discussed its prior decision in Guevara, 472 F.3d at 973. In that case, the immigration judge had determined that the alien was removable, but it granted the alien a discretionary waiver of removal. The Board reversed the immigration judge's granting of the waiver and entered a final order of removal based on the immigration judge's finding that the alien was removable. The Seventh Circuit held that the Board's decision was permissible because the immigration judge's “threshold determination constituted an order of deportation (i.e., removal) that could be given effect by the [Board].” Id. at 976. Judge Sykes wrote that, although the Seventh Circuit had not explicitly addressed the issue, it had implicitly held “that the Board is powerless to enter a removal order in the first instance.”

The government argued that the Board “could 'arguably' qualify as an administrative officer with delegated authority to conduct removal proceeding under section 101(a)(47)(A).” However, the Seventh Circuit noted that the Attorney General has never delegated such authority to the Board. Nor has such athority been implicitly conferred. Judge Sykes noted that the Attorney General regulations at 8 C.F.R. 1003.1(d)(1) state that the Board “shall function as an appellate body.” 8 C.F.R. 1003.1(b)(3) vests in the Board jurisdiction to hear appeals from “[d]ecisions of Immigration Judges in removal proceedings.”

Alternatively, the government argued that the Board issues “final orders of its own accord in other circumstances in which [section 101(a)(47)(B)] would seem to apply.” Specifically, it cited to Supreme Court precedent in Mata v. Lynch, 135 S.Ct. 2150, 2154 (2015) [PDF version], and Kucana v. Holder, 558 U.S. 233, 242 (2010) [PDF version], wherein the Court treated the Board's denial of motions to reopen or reconsider as final orders of removal for purpose of judicial review. However, the Seventh Circuit held that its jurisdiction to review denials of motions to reopen or reconsider “has no bearing on our present analysis” because, under section 242(b)(6), courts “are required to consolidate the review of a motion to reopen or reconsider with [their] review of the underlying order.” Citing to Mata, the Seventh Circuit explained that its “jurisdiction depends on whether the underlying order constitutes a final order of removal.” In cases where it does not, the Seventh Circuit held that it would lack jurisdiction to review.

Although Mejia Galindo took the position that the Board did not have authority to enter a final order of removal, he nevertheless argued that the Seventh Circuit had jurisdiction over the matter because the Board did in fact enter a final order of removal, “albeit unlawfully.” He relied on a decision of the United States Court of Appeals for the Ninth Circuit in Anderson v. Holder, 673 F.3d 1089, 1096 (9th Cir. 2012) [PDF version], to support his position. However, Judge Sykes explained that “Anderson dealt with the plight of a wrongly deported U.S. citizen, and the Anderson court had relied in part on an independent jurisdictional provision [at section 242(b)(5) of the INA] that required it to evaluate a claim to U.S. citizenship.” Because that jurisdictional provision did not apply in the instant case, the Seventh Circuit rejected Mejia Galindo's reliance on Anderson.

Mejia Galindo made an additional argument that under 5 U.S.C. 704, the Board's ultra vires (beyond its authority) order constituted a “final agency action.” However, the Seventh Circuit found this argument to be unavailing as well because the INA under section 242(a)(1) expressly limits its jurisdiction to reviewing “final orders of removal.”

Finally, Mejia Galindo argued that section 242(a)(2)(C) gave the Seventh Circuit jurisdiction to review whether his three Kentucky convictions qualified as controlled substances offenses under the INA. However, the Seventh Circuit explained that, contrary to Mejia Galindo's claim, section 242(a)(2)(C) actually removes jurisdiction from the Seventh Circuit in the instant case, reading that “[n]o court shall have jurisdiction to review any final order of removal against an alien who is removable” under section 237(a)(2)(B)(i).

For these reasons, the Seventh Circuit concluded that it lacked jurisdiction to review whether Mejia-Galindo's drug-paraphernalia convictions were removable controlled-substances offenses under the INA. However, the Seventh Circuit held that it did have jurisdiction to consider its own jurisdiction, and this meant it had the authority to vacate the Board's legally erroneous order and remand the case to the BIA as a remedy “to address the legal error that gave rise to the jurisdictional impediment we have identified.” The Seventh Circuit cited to the decision of the United States Court of Appeals for the Second Circuit on the same issue in Rhodes-Bradford v. Keisler, 507 F.3d 77 (2d Cir. 2007) [PDF version], wherein the Second Circuit took the position that courts having no remedy to address ultra vires behavior by the Board “would raise serious due process concerns.”

Thus, the Seventh Circuit vacated the Board's order because it was ultra vires and remanded for proceedings consistent with its opinion.

Seventh Circuit Joins Four Other Circuits in its Conclusion

The Seventh Circuit cited to four other circuit court decisions that had likewise held that the Board does not have authority to enter an order of removal in the first instance. The decisions are listed below:

Rhodes-Bradford v. Keisler, 507 F.3d 77 (2d Cir. 2007) [PDF version];
James v. Gonzales, 464 F.3d 505, 514 (5th Cir. 2006) [PDF version];
Noriega-Lopez v. Ashcroft, 335 F.3d 874, 883-84 (9th Cir. 2003) [PDF version]; and
Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1147 (10th Cir. 2007) [PDF version].

To learn which jurisdictions these courts cover, please see our full article on the subject [see article]. It is worth noting that the Second Circuit has jurisdiction over cases arising in New York.


The Seventh Circuit joined several other circuits in holding that the BIA does not have the authority to enter a final order of removal in the first instance. However, when taken with its prior decision, the Seventh Circuit appeared to adopt the position that the Board has jurisdiction to enter a final order of removal in a case where the immigration judge has adjudicated the respondent removable but granted some form of discretionary relief. n general, an individual in removal proceedings should consult with an experienced immigration attorney throughout the entire process. In the event that there is a procedural defect in the proceedings, an attorney may be able to use that defect to make a strong case for his or her client in federal court.