FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SILVIA TAPIA CORIA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-970

Agency No.

A092-680-641

ORDER AND 

AMENDED 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 20, 2023

Phoenix, Arizona

Filed March 19, 2024

Amended August 16, 2024

Before: Sandra S. Ikuta, Bridget S. Bade, and Daniel A. 

Bress, Circuit Judges.

Order;

Opinion by Judge Bress
2 TAPIA CORA V. GARLAND

SUMMARY*

Immigration 

The panel denied a petition for rehearing en banc and 

issued an amended opinion dismissing, for lack of 

jurisdiction, a petition for review of the Board of 

Immigration Appeals’ denial of petitioner’s motions for 

remand and administrative closure. 

In the original opinion, the panel held that this court’s 

“on the merits” exception to the criminal jurisdiction bar at 

8 U.S.C. § 1252(a)(2)(C) is clearly irreconcilable with the 

reasoning and theory of Nasrallah v. Barr, 140 S. Ct. 1683 

(2020), which defined a “final order of removal” to include 

all IJ or BIA rulings that “merge into final orders of 

removal,” meaning all matters on which the validity of the 

final order is contingent, and held that judicial review does 

not extend to factual challenges to the final removal 

order. Because petitioner’s motions to remand and for 

administrative closure merged with her final order of 

removal, and it was undisputed that she had a qualifying 

criminal conviction, the panel held that it lacked jurisdiction 

to review petitioner’s challenge to the Board’s factual 

findings in connection with the denial of relief. 

In the amended opinion, the panel added a footnote 

explaining that the panel’s decision did not disturb the result 

in Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. 2003), 

which stands for the proposition that for the criminal alien 

bar to apply, there must be an agency “determination that the 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
TAPIA CORA V. GARLAND 3 

alien is removable” based on a covered conviction. The 

panel had no occasion in this case to decide whether 

Nasrallah or other intervening law changes this threshold 

requirement in Alvarez-Santos, which therefore remains 

intact.

COUNSEL

Christopher J. Stender (argued), Federal Immigration 

Counselors AZ PC, Phoenix, Arizona; David J. Zimmer and 

Gerard J. Cedrone, Goodwin Procter LLP, Boston, 

Massachusetts; Rohiniyurie Tashima, Goodwin Procter 

LLP, Washington, D.C.; for Petitioner. 

Yanal H. Yousef (argued) and Kristen H. Blosser, Trial 

Attorneys; Anthony P. Nicastro, Assistant Director; Civil 

Division/ Office of Immigration Litigation; Brian Boynton, 

Principal Deputy Assistant Attorney General; United States 

Department of Justice, Washington, D.C.; for Respondent. 

ORDER

The opinion filed on March 19, 2024, and appearing at 

96 F.4th 1192, is amended as follows: 

• At Slip Op. page 19, line 18 [96 F.4th at 1202], 

change “genesis” to “precursor.”

• At Slip Op. page 23, footnote 4 [96 F.4th at 1204 

n.4], remove “Alvarez-Santos, 332 F.3d at 1250.” 

• At Slip Op. page 28, line 16 [96 F.4th at 1206], 

remove “Alvarez-Santos, 332 F.3d at 1250–53.” 
4 TAPIA CORA V. GARLAND

• At Slip Op. page 31, line 32 [96 F.4th at 1208], add 

the following footnote:

We note that our decision today does not 

disturb the result in Alvarez-Santos. 

Unuakhaulu and its progeny forged the “on 

the merits” exception based on an extension 

of the reasoning in Alvarez-Santos. See 

Pechenkov, 705 F.3d at 450 (Graber, J., 

concurring) (“In Unuakhaulu, we took 

Alvarez-Santos a step further.”). But as we 

have discussed, the key issue on which 

Alvarez-Santos relied was that the IJ did not 

find that the petitioner was removable due to 

a conviction covered by § 1252(a)(2)(C). See 

332 F.3d at 1249. Alvarez-Santos stands for 

the proposition that for the criminal alien bar 

to apply, there must be an agency 

“determination that the alien is removable” 

based on a covered conviction. Id. at 1251. 

We have no occasion in this case to decide 

whether Nasrallah or other intervening law 

changes this threshold requirement in 

Alvarez-Santos, which therefore remains 

intact.

With these amendments, the panel unanimously voted to 

deny the petition for rehearing en banc. The full court has 

been advised of the petition for rehearing en banc, and no 

judge has requested a vote on whether to rehear the matter 

en banc. Fed. R. App. P. 35. The petition for rehearing en 

banc, Dkt. No. 38, is DENIED. No further petitions for 

rehearing will be entertained.
TAPIA CORA V. GARLAND 5

OPINION

BRESS, Circuit Judge:

Under the so-called “criminal alien bar,” 8 U.S.C. 

§ 1252(a)(2)(C), “no court shall have jurisdiction to review 

any final order of removal against an alien who is removable 

by reason of having committed a [covered] criminal 

offense.” Statutorily exempted from this jurisdictional 

prohibition are constitutional claims or questions of law; 

those we do review. See id. § 1252(a)(2)(D). We have also

implied a further exception: notwithstanding a criminal 

conviction that would otherwise bar judicial review under

§ 1252(a)(2)(C), we may review a final order of removal 

provided that the Board of Immigration Appeals (BIA) or 

Immigration Judge (IJ) denied relief “on the merits,” rather 

than on the basis of the criminal offense that triggered 

§ 1252(a)(2)(C). Under these circumstances, we can review 

the agency’s factual findings. In our circuit, this is 

sometimes called the “on the merits” exception to 

§ 1252(a)(2)(C).

The petitioner in this case sustained a qualifying 

conviction under § 1252(a)(2)(C), and she does not advance 

any constitutional claim or question of law. Although she 

would meet the “on the merits” exception, thereby enabling 

our review of the agency’s factual determinations, the 

government argues that a recent Supreme Court decision, 

Nasrallah v. Barr, 140 S. Ct. 1683 (2020), abrogates the “on 

the merits” exception. Nasrallah defined the contours of

“final order of removal” in § 1252(a)(2)(C), explaining that 

it includes any denial of relief that “merges with” the final 

order of removal. Nasrallah further made clear that when 

§ 1252(a)(2)(C) applies, “the court of appeals may not 
6 TAPIA CORA V. GARLAND

review factual challenges to a final order of removal.” Id. at 

1690 (emphasis in original). We agree with the government 

that our “on the merits” exception is no longer valid because 

“the reasoning or theory of our prior circuit authority is 

clearly irreconcilable with the reasoning or theory of 

intervening higher authority” in Nasrallah. Miller v. 

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

In this opinion, we lay out the legal framework that 

Nasrallah ordains for determining when the criminal alien 

bar precludes judicial review of agency factual findings in a 

petition for review of a final order of removal. Applying that 

framework to this case, we hold that because the petitioner 

challenges the denial of relief that merges with the final 

order of removal, we lack jurisdiction under § 1252(a)(2)(C) 

to review petitioner’s factual challenges—the only type of 

challenge she raises. We accordingly dismiss the petition for 

review.

I

The petitioner in this case is Silvia Tapia Coria, a native 

and citizen of Mexico. She arrived in the United States on 

January 1, 1982, becoming a lawful permanent resident on 

December 31, 1990. In 1999, she was convicted of 

possession for sale of methamphetamine, a controlled 

substance, in violation of California Health and Safety Code 

§ 11378. She was sentenced to 180 days of imprisonment 

and three years of probation. Following her sentence, Tapia 

Coria continued to reside in the United States.

Sixteen years later, in September 2015, and upon return 

from a trip to Mexico, Tapia Coria sought admission into the 

United States as a returning lawful permanent resident at the 

Phoenix, Arizona port of entry. Because she was on a watch 

list due to her drug conviction, Tapia Coria was referred to 
TAPIA CORA V. GARLAND 7

secondary inspection and paroled into the United States on a 

deferred basis, pending further investigation.

In November 2015, the Department of Homeland 

Security (DHS) initiated removal proceedings against Tapia 

Coria. The Notice to Appear charged her as an inadmissible 

alien subject to removal because she was an alien convicted 

of a controlled substance offense, 8 U.S.C. 

§ 1182(a)(2)(A)(i)(II), and an alien whom “the consular 

officer or the Attorney General knows or has reason to 

believe is or has been an illicit trafficker in any controlled 

substance,” id. § 1182(a)(2)(C)(i).

Tapia Coria appeared before an immigration judge (IJ) 

in February 2016. She denied both charges of 

inadmissibility but admitted all other factual allegations in 

the Notice to Appear. On May 24, 2017, Tapia Coria filed 

an application for cancellation of removal, later moving to

terminate the removal proceedings. In March 2021, the IJ 

sustained both charges of removability and denied relief on 

all grounds. The IJ thus ordered Tapia Coria removed to 

Mexico. 

Tapia Coria appealed the IJ’s decision to the BIA. As 

relevant to her current petition for review, Tapia Coria

requested remand to the IJ on the new theory that she was 

eligible to become a derivative beneficiary of her husband’s 

pending U visa application. 8 U.S.C. §1101(a)(15)(U). U 

visas are made available to certain aliens who are victims of 

criminal activity in the United States and who come forward 

to report it; certain family members of the applicant are also 

eligible for derivative U visa status. See Medina Tovar v. 

Zuchowski, 982 F.3d 631, 633–34 (9th Cir. 2020) (en banc); 

8 U.S.C. § 1101(a)(15)(U).
8 TAPIA CORA V. GARLAND

Tapia Coria attached to her motion to remand documents 

showing that her husband had filed a U visa application in 

March 2018, and that she filed an application to be a 

derivative beneficiary in August 2021. Because of her 

inadmissibility charges, Tapia Coria was also required to 

apply for an inadmissibility waiver, which she submitted in 

connection with the U visa request. 8 U.S.C. § 1182(h). 

While her appeal was pending before the BIA, Tapia Coria

moved for administrative closure of her removal 

proceedings, repeating the same arguments about the U visa. 

The BIA dismissed Tapia Coria’s appeal and denied her

motions for remand and administrative closure. The BIA

held that Tapia Coria’s methamphetamine conviction

rendered her removable under 8 U.S.C. 

§ 1182(a)(2)(A)(i)(II). Responding to Tapia Coria’s 

argument that she was now seeking to be a derivative 

beneficiary of her husband’s U visa application, the BIA 

found it speculative whether Tapia Coria would receive this 

relief: “The uncertainty concerning when relief will become 

available based on the recent filing, and the likelihood of 

success diminished by the need for an inadmissibility 

waiver, weighs heavily against a further continuance and a 

further delay of [Tapia Coria’s] proceedings.” The BIA thus 

denied Tapia Coria’s motion to remand. It denied her 

motion for administrative closure for the same reasons: 

“Given the speculative nature as to when [Tapia Coria’s] U 

visa may be adjudicated, and the likelihood of success 

diminished by the need for an inadmissibility waiver, we are 
TAPIA CORA V. GARLAND 9

not persuaded the proceedings should be administratively 

closed.”1

Tapia Coria timely petitioned for review of the BIA’s 

denial of her motions for remand and administrative closure. 

But “[b]efore we reach the merits of [Tapia Coria’s] 

claim[s], we must determine whether we have jurisdiction to 

review the BIA’s denial” of her motions. Diaz-Covarrubias 

v. Mukasey, 551 F.3d 1114, 1116–17 (9th Cir. 2009).

II

Under 8 U.S.C. § 1252(a)(2)(C), “no court shall have 

jurisdiction to review any final order of removal against an 

alien who is removable by reason of having committed a

[covered] criminal offense.” This provision is sometimes 

referred to as the “criminal alien bar.” See, e.g., Kucana v. 

Holder, 558 U.S. 233, 246 (2010); Silva v. Garland, 993 

F.3d 705, 712 n.4 (9th Cir. 2021). 

In this case, it is undisputed that Tapia Coria’s California

conviction for methamphetamine possession for sale triggers 

§ 1252(a)(2)(C). Section 1252(a)(2)(C) applies to “a 

criminal offense covered in section 1182(a)(2),” and Tapia 

Coria’s methamphetamine conviction is an offense under

§ 1182(a)(2)(A)(i)(II). See also United States v. RodriguezGamboa, 972 F.3d 1148, 1152–54 (9th Cir. 2020) (holding 

that California’s definition of methamphetamine is a 

categorical match to the federal definition). If Tapia Coria

1 Before the BIA, Tapia Coria made other arguments in support of her 

motions for remand and administrative closure, and she also sought 

additional relief, such as cancellation of removal. Tapia Coria does not 

renew those arguments here. Tapia Coria challenges only the BIA’s 

denial of her motions to remand and for administrative closure based on 

her pending derivative U visa application. We thus confine our analysis 

to that issue.
10 TAPIA CORA V. GARLAND

asks us to review a final order of removal, we lack 

jurisdiction under § 1252(a)(2)(C) unless an exception 

applies.

We hold that under the criminal alien bar, we lack 

jurisdiction to consider Tapia Coria’s petition for review. 

Our analysis proceeds in several steps. In Part II.A, we first 

conclude, using the framework of Nasrallah v. Barr, 140 S. 

Ct. 1683 (2020), that Tapia Coria is seeking review of a 

“final order of removal,” thus implicating § 1252(a)(2)(C). 

In Part II.B, we examine Tapia Coria’s petition under 

existing circuit precedent and conclude that although Tapia 

Coria does not raise any constitutional claim or question of 

law under § 1252(a)(2)(D), we would have jurisdiction to 

review her factual challenges to the BIA’s denial of relief 

under our circuit’s “on the merits” exception to 

§ 1252(a)(2)(C). In Part II.C, however, we conclude that the 

“on the merits” exception is clearly irreconcilable with the 

reasoning and theory of Nasrallah. Thus, the “on the merits” 

exception can no longer govern. In Part II.D, we lay out the 

new, post-Nasrallah framework governing the criminal alien 

bar and recap how that framework applies to this case.

A

The first question we consider is whether Tapia Coria’s 

challenge to the BIA’s denial of her motions to remand and 

for administrative closure seeks review of a “final order of 

removal” within the meaning of § 1252(a)(2)(C). We hold 

that it does. We will have more to say about the Supreme 

Court’s recent decision in Nasrallah later, when we address 

our circuit’s “on the merits” exception. But Nasrallah is also 

central in confirming, at the outset, that Tapia Coria is 

challenging a “final order of removal,” thus implicating 

§ 1252(a)(2)(C).
TAPIA CORA V. GARLAND 11

1

Nasrallah considered whether the criminal alien bar 

applies to judicial review of the denial of relief under the 

Convention Against Torture (CAT). Nasrallah held that it 

did not because a ruling on CAT protection is not part of the 

“final order of removal” under § 1252(a)(2)(C). 140 S. Ct. 

at 1689–92. This means that courts of appeal can review 

factual findings underlying the denial of CAT relief. Id. at 

1688; see also, e.g., Park v. Garland, 72 F.4th 965, 973 (9th 

Cir. 2023). In so holding, the Supreme Court was required 

to explain what qualifies, in the first place, as a “final order 

of removal” within the meaning of § 1252(a)(2)(C).

The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) gives courts of appeal 

the power to review “final order[s] of removal.” Nasrallah, 

140 S. Ct. at 1689–90 (quoting 8 U.S.C. § 1252(a)(1)). In 

the “deportation context,” the phrase has an obvious 

meaning: “a ‘final order of removal’ is a final order 

‘concluding that the alien is deportable or ordering 

deportation.’” Id. at 1690 (quoting § 1101(a)(47)(A)). But 

the Supreme Court in Nasrallah recognized that an order 

need not be “the same as final orders of removal” to be 

reviewable by courts of appeal (absent a jurisdictionstripping provision). Id. at 1691 (emphasis in original). The 

Act “also states that judicial review ‘of all questions of law 

and fact arising from any action taken or proceeding brought 

to remove an alien from the United States under this 

subchapter shall be available only in judicial review of a 

final order under this section.’” Id. at 1690 (alteration 

omitted) (quoting 8 U.S.C. § 1252(b)(9)). The Act 

consolidates judicial review of “a noncitizen’s various 

challenges arising from the removal proceeding” in the 

courts of appeals, thereby streamlining the judicial review
12 TAPIA CORA V. GARLAND

process. Id. (quoting INS v. St. Cyr, 533 U.S. 289, 313 &

n.37 (2001)).

According to Nasrallah, the phrase “final order of 

removal” in 8 U.S.C. § 1252(a)(2)(C) encompasses more 

than just an order finding that an alien is removable. See id. 

at 1691. Instead, a “final order of removal” includes all

rulings of an IJ or the BIA that “merge into final orders of 

removal.” Id. Nasrallah gave as an example an IJ’s 

evidentiary rulings. Id. Nasrallah explained that a decision 

merges into the final order of removal when it “affect[s] the 

validity of the final order of removal” or “disturb[s] the final 

order of removal.” Id. In other words, “review of a final 

order of removal ‘includes all matters on which the validity 

of the final order is contingent.’” Id. (quoting INS v.

Chadha, 462 U.S. 919, 938 (1983)).

With “final order of removal” properly defined, 

Nasrallah held that this term did not encompass a CAT 

order. Such an order “does not disturb the final order of 

removal” because the alien remains removable at any time 

regardless of the ruling on the application for CAT 

protection. Id. The reason is that “[a]n order granting CAT 

relief means only that, notwithstanding the order of removal, 

the noncitizen may not be removed to the designated country 

of removal, at least until conditions change in that country.” 

Id. Even while an order granting CAT relief is in place, an 

alien can still “be removed at any time to another country 

where he or she is not likely to be tortured.” Id. (quoting 8 

C.F.R. §§ 1208.17(b)(2), 1208.16(f)). Given the alien’s 

continued ability to “be removed at any time,” a denial of 

CAT relief does not merge into the final order of removal. 

Id. (quotations omitted). That is so even though “[a] CAT 

order may be reviewed together with the final order of 

removal.” Id. at 1692.
TAPIA CORA V. GARLAND 13

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.” Id.

at 1691.

Tapia Coria sought a remand to the IJ and administrative 

closure of her removal proceedings to allow her to pursue U 

visa relief. And U visa relief, if awarded, would preclude 

Tapia Coria’s removal. See, e.g., United States v. CisnerosRodriguez, 813 F.3d 748, 761 (9th Cir. 2015) (“Had 

Cisneros been granted a U-visa subsequent to the issuance 

of the removal order, the removal order would have been 

canceled.”); 8 C.F.R. § 214.14(c)(5)(i) (“For a petitioner 

who is subject to an order of exclusion, deportation, or 

removal issued by the Secretary, the order will be deemed 

canceled by operation of law as of the date of USCIS’ 

approval of [the U visa application].”). 

From this we conclude that resolution of Tapia Coria’s

motion for remand or motion for administrative closure 

“merge[s] into the final order of removal” because the 

motions, if granted, would “affect the validity of the final 

order of removal.” Nasrallah, 140 S. Ct. at 1691. The entire 

point of Tapia Coria’s motions before the BIA was to 

forestall the final order of removal and prevent it from taking 

effect while she pursued U visa relief. By statute, an order 

of removal “become[s] final upon” a decision of the BIA 

affirming that order or the expiration of the period for 

seeking BIA review. 8 U.S.C. § 1101(a)(47)(B). And we 

have held that “an order of removal cannot become final for 

any purpose when it depends on the resolution of further 

issues by the IJ on remand.” Abdisalan v. Holder, 774 F.3d 
14 TAPIA CORA V. GARLAND

517, 523 (9th Cir. 2014) (en banc), as amended (Jan. 6, 

2015).

In this case, the grant of administrative closure would 

eliminate the immediate possibility of removal because the 

agency would “temporarily remove [the] case from [the] 

Immigration Judge’s active calendar” and “close removal 

proceedings.” Matter of Avetisyan, 25 I. & N. Dec. 688, 692, 

696 (B.I.A. 2012); see also Gonzalez-Caraveo v. Sessions, 

882 F.3d 885, 889 (9th Cir. 2018); Diaz-Covarrubias, 551 

F.3d at 1116. Importantly, “administrative closure does not 

result in a final order.” Gonzalez-Caraveo, 882 F.3d at 889. 

Tapia Coria’s related motion to remand would have a 

similar result. This motion is akin to a motion to reopen and 

is evaluated by the same standards, except that, unlike a 

motion to reopen, it is made when the matter is still pending 

before the BIA. See Alcarez-Rodriguez v. Garland, 89 F.4th 

754, 759 (9th Cir. 2023); Rodriguez v. INS, 841 F.2d 865, 

867 (9th Cir. 1987). Tapia Coria’s motion to remand to the 

IJ would likewise not have the BIA affirm the removal order; 

it would send the matter back to the IJ for more proceedings. 

Here, that would effectively involve the IJ waiting for the U 

visa process to run its course. Once again, the final order of 

removal would be held pending additional developments.

This would “disturb the final order of removal,” Nasrallah, 

140 S. Ct. at 1691, preventing an alien’s removal.

Our conclusion that Tapia Coria’s motion to remand 

merges with her final order of removal finds further support 

in longstanding Ninth Circuit precedent holding that “where 

Congress explicitly withdraws our jurisdiction to review a 

final order of deportation, our authority to review motions to 

reconsider or to reopen deportation proceedings is thereby 

likewise withdrawn.” Sarmadi v. INS, 121 F.3d 1319, 1322 
TAPIA CORA V. GARLAND 15

(9th Cir. 1997); see also, e.g., Singh v. Barr, 982 F.3d 778, 

782 (9th Cir. 2020); Ghahremani v. Gonzales, 498 F.3d 993, 

998 n.5 (9th Cir. 2007); Briseno v. INS, 192 F.3d 1320, 1323 

(9th Cir. 1999); Beltran-Leon v. INS, 134 F.3d 1379, 1380 

(9th Cir. 1998).

Sarmadi involved a predecessor provision which stated

that “any final order of deportation against an alien who is 

deportable by reason of having committed [a covered 

offense] . . . shall not be subject to review by any court.” 

Sarmadi, 121 F.3d at 1321 n.1 (quoting § 440 of the AntiTerrorism and Effective Death Penalty Act (AEDPA), as 

amended by § 306(d) of IIRIRA). This provision was 

repealed in September 1996, at the same time that 

§ 1252(a)(2)(C) was enacted. See Omnibus Consolidated 

Appropriations Act, 1997, Pub. L. 104–208, 110 Stat. 3009

(1996). 

The petitioner in Sarmadi sought judicial review of the 

BIA’s denial of his motion to reopen his removal

proceedings. 121 F.3d at 1321. But we held that Congress’s 

“withdrawal of judicial review over final orders of 

deportation also withdraws jurisdiction from motions to 

reconsider or to reopen deportation proceedings for those 

aliens deportable for having committed a crime enumerated 

in the statute.” Id.; see also id. at 1322 (“Where an alien has 

been ordered deported for crimes covered in § 440(a), we 

lack jurisdiction to review the BIA’s denial of a motion to 

reopen or to reconsider its decision.”).

In Tapia Coria’s case, we have applied this same basic 

logic from Sarmadi in concluding that a motion to remand, 

which is analogous to a motion to reopen, merges with the 

final order of removal for purposes of § 1252(a)(2)(C). Any 
16 TAPIA CORA V. GARLAND

different conclusion would be, in effect, contrary to Sarmadi 

and its progeny.

2

We recognize that in Williams v. Garland, 59 F.4th 620 

(4th Cir. 2023), a divided Fourth Circuit recently held that 

the BIA’s denial of reconsideration or reopening of a prior 

order of removal does not fall within § 1252(a)(2)(C)’s 

jurisdictional bar, when the petitioner seeks “judicial review 

of collateral facts far removed from the underlying ‘final 

order of removal.’” Id. at 627. To reach this conclusion, the 

Fourth Circuit reasoned that although Congress gave courts 

of appeal jurisdiction to review the denials of motions to 

reopen or reconsider a prior order of removal, “it said 

nothing about extending § 1252(a)(2)(C) to our review of 

reopening and reconsideration motions, even though it could 

have easily” done so. Id. at 629. From this the Fourth 

Circuit inferred that courts “retain jurisdiction to review all 

aspects of the BIA’s decisions [on motions to reopen and 

reconsider prior orders of removal] except where our review 

clearly conflicts with § 1252(a)(2)(C)’s core statutory aims.” 

Id. (internal quotation marks omitted). The latter “conflict” 

would arise, the Fourth Circuit believed, only when the BIA 

denies reopening based on “the substance of a removal 

order.” Id. at 631 (emphasis in original). In those 

circumstances, courts could not review the BIA’s factual 

findings underlying a motion to reopen or reconsider; they 

may do so only when the factual findings are “collateral” to 

the underlying order finding a petitioner removable. Id. at 

629.

We respectfully disagree with the Fourth Circuit’s 

analysis in Williams, finding the Williams dissent more 

persuasive. See id. at 644–50 (Rushing, J., dissenting). The 
TAPIA CORA V. GARLAND 17

Fourth Circuit’s reasoning that § 1252(a)(2)(C) does not 

explicitly extend to review of motions to reopen or 

reconsider orders of removal fails to account for Nasrallah’s 

direction that § 1252(a)(2)(C) covers not just final orders of 

removal, but also orders that “merge into final orders of 

removal”—that is, decisions that “affect the validity of the 

final order of removal” or “disturb[] the final order of 

removal,” or those “on which the validity of the final order 

is contingent.” Nasrallah, 140 S. Ct. at 1691. 

As the Williams dissent explained, motions to reopen or 

reconsider removal orders meet this test because “the very 

purpose of a motion to reopen or reconsider is to invalidate 

a prior removal order.” 59 F.4th at 649 (Rushing, J., 

dissenting). Nor do we see how the Fourth Circuit’s holding 

is consistent with our broader reasoning in Sarmadi that 

“where Congress explicitly withdraws our jurisdiction to 

review a final order of deportation, our authority to review 

motions to reconsider or to reopen deportation proceedings 

is thereby likewise withdrawn.” 121 F.3d at 1322; see also 

Williams, 59 F.4th at 647 (Rushing, J., dissenting) (citing 

Sarmadi and authorities from other circuits and explaining

that “[e]very other circuit to consider this question has 

applied subparagraph (C) to petitions for review of Board 

decisions denying reconsideration or reopening”); Durant v. 

INS, 393 F.3d 113, 114 (2d Cir. 2004) (Sotomayor, J.) (“We 

further hold that when an alien has been ordered removed 

because of a conviction for one of the offenses specified in 

§ 1252(a)(2)(C), the jurisdictional bar imposed by this 
18 TAPIA CORA V. GARLAND

section also applies to an order denying a motion to reopen 

removal proceedings.”), as amended (Feb. 1, 2005).

2

In sum, at least where the further proceedings, if 

successful, would result in the undoing of the removal order, 

which is the case here for the contemplated U visa relief, see 

Cisneros-Rodriguez, 813 F.3d at 761; 8 C.F.R. 

§ 214.14(c)(5)(i), Tapia Coria’s motions for administrative 

closure and for remand would disturb the final order of 

removal. The denial of those motions therefore merged into 

the final order of removal and are considered part of the final 

order of removal for purposes of judicial review. See 

Nasrallah, 140 S. Ct. at 1691. And that means they are 

subject to the criminal alien bar in 8 U.S.C. 

§ 1252(a)(2)(C).3

2 Williams is also factually distinguishable. In Williams, the relevant 

factual finding in the BIA’s decision had nothing to do with the 

petitioner’s underlying conviction, but instead concerned whether the 

petitioner’s immigration attorney had offered her services pro bono, 

which affected whether petitioner was diligent in seeking to reopen his 

immigration proceedings. 59 F.4th at 627. If the petitioner in Williams

could get past this factual issue and the BIA granted the motion to 

reopen, it was clear that he had a winning argument on the law, because 

under intervening Supreme Court precedent he could no longer be 

classified as an aggravated felon. Id. at 629. Indeed, “the government 

d[id] not even dispute that Williams would succeed on it.” Id. No 

analogous circumstances are present here.

3 Similarly, we have recognized that the denial of asylum and 

withholding of removal fall within the final order of removal and are

subject to § 1252(a)(2)(C) “unless an exception applies.” Pechenkov, 

705 F.3d at 448.
TAPIA CORA V. GARLAND 19

B

The next question is whether, under pre-Nasrallah 

circuit precedent, we have jurisdiction over Tapia Coria’s 

petition because it meets an exception to § 1252(a)(2)(C). 

1

Under existing circuit precedent, “§ 1252(a)(2)(C)’s 

jurisdictional bar is subject to two exceptions.” Pechenkov 

v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). The first is 

found in the next subsection of the statute. Section 

1252(a)(2)(C) strips jurisdiction “except as provided in 

subparagraph (D),” which grants us jurisdiction to review 

“constitutional claims or question of law.” 8 U.S.C. 

§ 1252(a)(2)(D). 

But, as confirmed at oral argument, Tapia Coria 

advances no colorable constitutional claim or question of 

law. Tapia Coria’s argument here is that the BIA mistakenly

concluded that her prospects of securing a derivative U visa 

were speculative. She argues, for example, that evidence in 

the record and statistics available on a website indicate that 

her U visa application would be processed in the near future,

that the “favorable equities in her case outweigh her one 

blemish,” that she has strong family ties in the United States,

and that she otherwise met the factors in Matter of Avetisyan, 

25 I. & N. Dec. at 696, all making it likely that USCIS would 

grant the visa as a matter of discretion. This presents a 

factual challenge to the BIA’s ruling. Section 1252(a)(2)(D) 

thus does not restore our jurisdiction here.

But in the absence of intervening higher authority, this 

would not be fatal to our review because Tapia Coria’s 

petition would fall within the second exception to 

§ 1252(a)(2)(C)—our circuit’s “on the merits” exception. 
20 TAPIA CORA V. GARLAND

Under that exception, we have jurisdiction notwithstanding 

the criminal alien bar when “an IJ denies relief on the merits, 

for failure to demonstrate the requisite factual grounds for 

relief, rather than in reliance on the conviction.” Pechenkov, 

705 F.3d at 448 (emphasis in original). Thus, for example, 

when an IJ denied statutory withholding of removal on the 

ground that the petitioner was ineligible for that relief

because he had been convicted of a “particularly serious 

crime,” 8 U.S.C. § 1231(b)(3)(B)(ii), we held that we lacked 

jurisdiction under the criminal alien bar. Pechenkov, 705 

F.3d at 449. But if the IJ had denied this relief for reasons 

other than “the crime underlying [petitioner’s] 

removability”—such as a lack of likely persecution on 

account of a protected ground in the country of removal—

then we would have had jurisdiction to review the IJ’s factual 

findings, which would be considered findings “on the 

merits.” Id. at 448–49.

The precursor of our “on the merits” exception appears 

to be Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. 2003). 

In that case, the government charged the petitioner with 

removability both for entering the United States without 

permission and based on a criminal conviction for domestic 

violence. Id. at 1248. The IJ sustained the former charge 

but expressly rejected the theory that petitioner was 

removable due to a covered criminal offense. Id. at 1249. 

The BIA later found that the petitioner was not entitled to 

voluntary departure because he had admitted the essential 

elements of spousal abuse. Id. When the petitioner sought 

review of the agency’s denial of asylum and withholding of 

removal, the government argued that § 1252(a)(2)(C) 

prevented our jurisdiction “of an otherwise reviewable 

removal order where the record establishes that the 

individual could have been but was not ordered removed for 
TAPIA CORA V. GARLAND 21

having committed a covered criminal offense.” Id. at 1250

(emphasis in original).

We disagreed. Considering § 1252(a)(2)(C)—which 

again states that “no court shall have jurisdiction to review 

any final order of removal against an alien who is removable 

by reason of having committed a [covered] criminal 

offense”—we thought the statutory language unclear. Id. 

“On the one hand, ‘removable by reason of having 

committed a criminal offense’ could refer back to the 

‘reason’ for the ‘final order of removal’ under review.” Id. 

But on the other hand, “the ‘removable’ phrase could refer 

to circumstances that exist but were not the basis for the 

‘final order of removal.’” Id. The petitioner in AlvarezSantos was effectively outside either of these potential 

definitions of § 1252(a)(2)(C) because he had never been 

found removable by reason of a covered conviction (indeed, 

as we have noted, the IJ found he was not removable due to 

a criminal conviction). See Penchenkov, 705 F.3d at 450 

(Graber, J., concurring) (making this same point about 

Alvarez-Santos). Nevertheless, relying on a presumption of 

judicial review, the principle of construing immigration 

statutes in favor of aliens, and a reading of other statutory 

provisions, Alvarez-Santos concluded that § 1252(a)(2)(C) 

“precludes judicial review only when an alien is actually 

determined to be removable and ordered removed on the 

basis of a covered criminal act.” 332 F.3d at 1253 (emphasis 

added).

Two years later, in Unuakhaulu v. Gonzales, 416 F.3d 

931 (9th Cir. 2005), we treated Alvarez-Santos as having 

created an exception to § 1252(a)(2)(C) when an alien is 

“removable” based on a conviction yet “ordered removed” 

for other reasons. 416 F.3d at 936–37 (emphasis in original). 

We concluded that the phrase “removable by reason of 
22 TAPIA CORA V. GARLAND

having committed a criminal offense” in § 1252(a)(2)(C) 

does not simply mean that the alien “was removable on the 

basis of the covered criminal act.” Id. at 936–37 (emphasis 

in original). Instead, it requires that a person be “ordered 

removed for having committed a covered criminal offense.”

Id. at 936 (quoting Alvarez-Santos, 332 F.3d at 1253) 

(emphasis in original). 

In Unuakhaulu, the IJ found the petitioner removable for 

two reasons, one of which was a criminal conviction for

which § 1252(a)(2)(C) applies. Id. at 933, 936–37. But the 

IJ found that this conviction did not disqualify the petitioner

from pursuing statutory withholding of removal because it 

did not rise to the level of a “particularly serious crime.” Id.

at 933–34 (citing 8 U.S.C. § 1231(b)(3)(B)). The IJ instead 

denied withholding of removal and CAT relief “on the 

merits” based on the unlikelihood that petitioner would face 

persecution in Nigeria. Id. at 934, 936–37. And “[a]lthough 

the IJ could have ordered Unuakhaulu removed based on his 

aggravated felony conviction, she did not explicitly do so.” 

Id. at 937. Because the IJ in Unuakhaulu “neither specified 

the basis upon which Unuakhaulu was removed nor stated 

that Unuakhaulu was ordered removed based on the 

charges,” and because the IJ denied withholding of removal 

and CAT relief “on the merits,” we concluded that 

§ 1252(a)(2)(C) did not apply. Id. We thus proceeded to 

review the factual findings underlying the denial of 

withholding of removal and CAT relief. See id. at 937–39.

Judges on this court have criticized our “on the merits” 

exception. Our colleague Judge Graber has written that 

“Unuakhaulu and its progeny misread § 1252(a)(2)(C)’s ‘by 

reason of’ phrase as applying to the order of removal, 

limiting the jurisdictional bar to cases in which the relevant 

conviction is the final reason for that order.” Pechenkov, 705 
TAPIA CORA V. GARLAND 23

F.3d at 451 (Graber, J., concurring) (emphasis in original). 

In Judge Graber’s view, “the only relevant question is 

whether an IJ has made a finding of removability because of 

a relevant conviction.” Id. (emphasis in original). Judge 

Graber noted that “[a]t least four of our sister circuits have 

adopted this textually based view of § 1252(a)(2)(C)’s 

jurisdiction-stripping provision,” whereas the “on-themerits” exception “appears limited to the Ninth Circuit.” Id.

at 450. Judge Graber thus “urge[d] the court to consider 

revisiting, in an appropriate case, our mistaken reading of 

§ 1252(a)(2)(C).” Id. at 452; see also Oseida v. Garland, 

2021 WL 5742717, at *1 (9th Cir. Dec. 2, 2021) (Miller, J., 

concurring in part and dissenting in part) (describing the “on 

the merits” exception as “inconsistent” with 

§ 1252(a)(2)(C)); Alphonsus v. Holder, 705 F.3d 1031, 1050 

(9th Cir. 2013) (Graber, J., concurring in part and dissenting 

in part) (“Our court has read an additional exception into the 

statute’s otherwise unequivocal text, under which we review 

such orders if the BIA did not rest its decision on the fact of 

the aggravated felony but instead denied relief from removal 

on the merits. That interpretation of § 1252(a)(2)(C) ignores 

the statute’s text and conflicts with the views of at least four 

of our sister circuits.”), abrogation on other grounds 

recognized by Guerrero v. Whitaker, 908 F.3d 541, 544 (9th 

Cir. 2018). 

Relying on Judge Graber’s criticisms, at least two other 

circuits have explicitly rejected our “on the merits” 

exception. See Ortiz-Franco v. Holder, 782 F.3d 81, 90 (2d 

Cir. 2015), abrogated on other grounds by Nasrallah, 140 S.

Ct. 1683; Ventura-Reyes v. Lynch, 797 F.3d 348, 357–58 

(6th Cir. 2015), abrogated on other grounds by Nasrallah, 
24 TAPIA CORA V. GARLAND

140 S. Ct. 1683. We are not aware of any other circuit that 

has adopted our “on the merits” exception.4

As a three-judge panel, we are not free to depart from the 

“on the merits exception” based on the criticisms that have 

been levied against it or because it is an apparent outlier 

exception among the circuits. Prior to Nasrallah—the 

import of which we take up below—we have thus continued

to apply the “on the merits” exception to review factual 

challenges to final orders of removal when the petitioner 

would otherwise fall under the criminal alien bar, so long as 

the IJ or BIA did not explicitly deny relief based on the 

relevant conviction. See, e.g., Agonafer v. Sessions, 859 

F.3d 1198, 1202–03 (9th Cir. 2017); Garcia v. Lynch, 798 

4 As we noted above, the Fourth Circuit in Williams recently held that 

even though the BIA’s denial of reconsideration or reopening of a prior 

removal order does not implicate § 1252(a)(2)(C), courts in this situation 

may still only review factual issues “collateral” to the underlying 

removal order. 59 F.4th at 627. Although it is not clear under Williams 

how “collateral” to the removal order these facts must be, see id.

(referencing “collateral facts far removed from” the underlying removal 

order) (emphasis added), it may be that in practice, and at least in the 

context of motions to reopen or reconsider, the Fourth Circuit would 

review similar types of facts for which our “on the merits” exception 

would permit review. But the Fourth Circuit’s approach is not the same 

as our “on the merits” exception. In Williams, the Fourth Circuit treated 

motions to reopen and reconsider as outside of § 1252(a)(2)(C), but then 

created a limit on judicial review to prevent courts from entertaining the 

“same” objection to the underlying removability finding “dressed as a 

motion to reconsider.” Id. at 628 (emphasis in original). Our “on the 

merits” exception is analytically distinct. We treat motions to reopen 

and other similar orders as falling under § 1252(a)(2)(C) and part of the 

final order of removal, but we allow an exception for “merits” rulings 

based on a reading of the statutory text and principles of statutory 

construction. See Unuakhaulu, 416 F.3d at 936–37. We do not view the 

Fourth Circuit as having adopted our “on the merits” exception.
TAPIA CORA V. GARLAND 25

F.3d 876, 880–81 (9th Cir. 2015); Bromfield v. Mukasey, 543 

F.3d 1071, 1075–76 (9th Cir. 2008). 

This exception allows us to review denials of CAT relief

when the criminal alien bar would otherwise apply. As we 

have reasoned, “when an IJ does not rely on an alien’s 

conviction in denying CAT relief and instead denies relief 

on the merits,” § 1252(a)(2)(C) does not divest us of 

jurisdiction. Morales v. Gonzales, 478 F.3d 972, 980 (9th 

Cir. 2007), abrogated on other grounds by Anaya-Ortiz v. 

Holder, 594 F.3d 673, 677–78 (9th Cir. 2010); see also, e.g., 

Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 

2008), overruled on other grounds by Maldonado v. Lynch, 

786 F.3d 1155 (9th Cir. 2015) (explaining that “because the 

determination of the likelihood of torture is a decision on the 

merits, we have jurisdiction over petitions seeking review of 

such decisions”). 

Importantly, the Supreme Court in Nasrallah affirmed 

the result of our CAT cases applying the “on the merits” 

exception, but not our reasoning. In the face of 

§ 1252(a)(2)(C), our case law allowing review of IJ factual 

determinations when denying CAT relief presupposed that 

the denial of CAT relief was part of the final order of 

removal and within § 1252(a)(2)(C). But we treated these 

factual findings as reviewable when the denials were “on the 

merits” as opposed to on the basis of the criminal conviction 

that would otherwise preclude jurisdiction. See, e.g., 

Morales, 478 F.3d at 980–81. The Supreme Court in 

Nasrallah instead held that the denial of CAT relief was not 

part of the final order of removal at all, so that 

§ 1252(a)(2)(C) simply did not apply. Nasrallah, 140 S. Ct. 

at 1691–92. Thus, after Nasrallah, we still have jurisdiction 

to review factual findings underlying the denial of CAT 
26 TAPIA CORA V. GARLAND

relief, but for the different reason that CAT orders are neither 

part of the final order of removal nor merge into it.

We will have more to say below in Part II.C about the 

interaction between Nasrallah and our “on the merits” 

exception.

2

The government briefly argues that even if the “on the 

merits” exception remains good law after Nasrallah, that 

exception was still not met here. If true, that would obviate 

our need to consider whether Nasrallah abrogates the “on 

the merits” exception. But assuming for present purposes

that our “on the merits” exception remains valid, it would 

apply here to restore our jurisdiction.

In denying Tapia Coria’s motion to remand and motion 

for administrative closure, the BIA found that it was 

speculative whether and when Tapia Coria would receive a 

derivative U visa. In the course of this analysis, the BIA 

referenced the fact that Tapia Coria’s “likelihood of success” 

in obtaining a U visa was “diminished by the need for an 

admissibility waiver.” Although the BIA did not at this point 

explicitly mention Tapia Coria’s methamphetamine 

conviction, that conviction was the reason Tapia Coria

needed a U visa admissibility waiver. From this evident 

reference to Tapia Coria’s conviction, the government 

argues that the BIA did not deny relief “on the merits,” and 

instead based on the conviction that triggers 

§ 1252(a)(2)(C).

That is not correct. We have stated that § 1252(a)(2)(C) 

“bars review only of those orders that are actually 

‘predicated on commission or admission of a crime.’” 

Garcia, 798 F.3d at 880 (emphasis altered) (quoting 
TAPIA CORA V. GARLAND 27

Unuakhaulu, 416 F.3d at 936). That is, § 1252(a)(2)(C) 

applies only when relief is denied “on the basis of the 

qualifying conviction.” Id. (emphasis added). We have thus 

concluded that the “on the merits” exception does not apply

when the IJ “did not address the merits” of the petitioner’s 

request for relief but instead found him “statutorily ineligible

for that relief” based on his conviction. Pechenkov, 705 F.3d 

at 449 (emphasis added). 

Here, the BIA denied Tapia Coria’s motion to remand 

and motion for administrative closure “on the merits” of 

those requests, and at best referenced her conviction as one 

factor in that overall determination. Even then, the BIA’s 

reference to her conviction did not pertain to the validity of 

that conviction or the facts and legal elements underlying it. 

Instead, the conviction was relevant to the different “merits”

question of whether Tapia Coria’s derivative U visa 

application was likely to be granted. We have never 

suggested that the criminal alien bar would apply in this

circumstance, when the BIA’s reason for denying relief 

involved only a passing reference to the conviction. Instead, 

we have stated that under the “on the merits” exception, we 

“retain jurisdiction to review the BIA’s denial of [relief] to 

the extent the BIA rested its decision on a ground other than 

[the petitioner’s] conviction.” Flores v. Barr, 930 F.3d 

1082, 1087 (9th Cir. 2019) (per curiam) (emphasis added). 

Flores is instructive in this regard. There, the IJ denied 

discretionary relief from removal under former § 212(c) of 

the Immigration and Nationality Act after balancing the 

petitioner’s positive factors against his negative ones, 

including a conviction that otherwise triggered the criminal 

alien bar. Id. at 1084–85. In reviewing the BIA’s denial of 

the petitioner’s motion to reopen, we held that we had 

jurisdiction under the “on the merits” exception insofar as 
28 TAPIA CORA V. GARLAND

the BIA denied relief on grounds other than the criminal 

conviction. Id. at 1087. Thus, even assuming that we are 

barred from reviewing the portion of the BIA’s denial of 

Tapia Coria’s motions to remand and for administrative 

closure that references Tapia Coria’s conviction—which we 

doubt—there would be no basis to bar our review entirely. 

We thus conclude that if the “on the merits” exception 

remains good law, Tapia Coria would fall within it. We 

therefore must confront whether our circuit’s “on the merits” 

exception is clearly irreconcilable with Nasrallah. 

C 

Nasrallah of course did not directly address the “on the 

merits” exception. And the Supreme Court in Nasrallah 

described the issue before it as “the narrow” one of whether 

an alien subject to § 1252(a)(2)(C) may obtain review of 

factual challenges to a CAT order. 140 S. Ct. at 1688. But 

in assessing when a three-judge panel may (indeed, must)

recognize that intervening higher authority has abrogated 

circuit precedent, “the issues decided by the higher court 

need not be identical in order to be controlling.” Miller v. 

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). 

Instead, “where the reasoning or theory of our prior circuit 

authority is clearly irreconcilable with the reasoning or 

theory of intervening higher authority, a three-judge panel 

should consider itself bound by the later and controlling 

authority, and should reject the prior circuit opinion as 

having been effectively overruled.” Id. at 893. 

Consistent with this directive from Miller v. Gammie, 

three-judge panels from this court have on various occasions 

concluded that the reasoning or theory of intervening 

Supreme Court precedent abrogates Ninth Circuit authority. 

See, e.g., SEIU Loc. 121RN v. Los Robles Reg’l Med. Ctr., 
TAPIA CORA V. GARLAND 29

976 F.3d 849, 854–55 (9th Cir. 2020); Murray v. Mayo 

Clinic, 934 F.3d 1101, 1105–06 (9th Cir. 2019); Dorman v. 

Charles Schwab Corp., 934 F.3d 1107, 1111–12 (9th Cir. 

2019); Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 

975, 980–81 (9th Cir. 2013); Cardenas-Delgado v. Holder, 

720 F.3d 1111, 1119–21 (9th Cir. 2013). 

In this case, we conclude that our “on the merits” 

exception to 8 U.S.C. § 1252(a)(2)(C) is clearly 

irreconcilable with the reasoning and theory of Nasrallah. 

The “on the merits” exception allows judicial review of 

certain factual challenges to orders that we have treated as 

within the ambit of § 1252(a)(2)(C)’s “final order of 

removal,” based on an interpretation of the phrase 

“removable by reason of having committed a criminal 

offense” in § 1252(a)(2)(C). See Unuakhaulu, 416 F.3d at 

936–37; see also Pechenkov, 705 F.3d at 451 (Graber, J., 

concurring). 

Nasrallah’s reasoning and theory direct a completely 

different approach to § 1252(a)(2)(C). Nasrallah instructs 

courts to determine whether an order is part of the “final 

order of removal,” which includes orders that “merge into 

the final order of removal.” Nasrallah, 140 S. Ct. at 1691. 

If the agency’s denial of relief is not such an order—such as 

an order denying CAT relief—an alien can obtain judicial 

review of factual challenges. Id. at 1691–92. But if an order 

does count as a “final order of removal” under

§ 1252(a)(2)(C), Nasrallah is crystal clear: “the court of 

appeals may not review factual challenges to a final order of 

removal.” Id. at 1690 (emphasis in original). 

The Supreme Court reiterated this point throughout 

Nasrallah. Under Nasrallah, if an alien has “committed any 

crime specified in 8 U.S.C. § 1252(a)(2)(C), federal law 
30 TAPIA CORA V. GARLAND

limits the scope of judicial review[:] Those noncitizens may 

obtain judicial review of constitutional and legal challenges 

to the final order of removal, but not of factual challenges to 

the final order of removal.” Id. at 1687–88. And again: 

“When a noncitizen is removable because he committed a 

crime specified in § 1252(a)(2)(C), immigration law bars 

judicial review of the noncitizen’s factual challenges to his 

final order of removal.” Id. at 1689. As the Supreme Court 

concluded, “[t]he relevant statutory text precludes judicial

review of factual challenges to final orders of removal.” Id.

at 1691; see also id. at 1694 (same). The Supreme Court’s 

categorical interpretation of § 1252(a)(2)(C)—as 

disallowing review of factual challenges to final orders of 

removal—is clearly irreconcilable with our determination 

that we may review certain factual challenges to denials of 

relief that are considered part of the final order of removal.

Nasrallah’s actual holding was also dependent on its 

view that “the court of appeals may not review factual 

challenges to a final order of removal.” Id. at 1690

(emphasis in original). The petitioner in Nasrallah was 

seeking review of a factual finding made in denying him 

CAT relief. Id. at 1688–89. If review of such a factual 

determination was already permitted under § 1252(a)(2)(C), 

the Court would not have needed to decide whether a CAT 

order was part of the final order of removal. It was only 

because § 1252(a)(2)(C) “preclude[s] judicial review of the 

noncitizen’s factual challenges to a final order of removal” 

that the Supreme Court had to determine whether a CAT 

order was, at the outset, part of the final order of removal or 

“distinct” from it. Id. at 1694. Indeed, the denial of CAT 

relief in Nasrallah was itself made “on the merits” and not 

based on the conviction that would have provided the basis 

for removability. See id. at 1688–89.
TAPIA CORA V. GARLAND 31

We address a potential counterargument arising from 

Nasrallah that appears to have influenced the Fourth 

Circuit’s decision in Williams. See Williams, 59 F.4th at 

628–29. After laying out the appropriate approach to decide

whether an order denying relief forms part of the “final order 

of removal,” Nasrallah addressed several responses from the 

government, including one about congressional intent: 

“Why would Congress bar review of factual challenges to a 

removal order, but allow factual challenges to a CAT order?” 

Nasrallah, 140 S. Ct. at 1693. Nasrallah’s first answer was 

that “we must adhere to the statutory text, which 

differentiates between the two kinds of orders for those 

purposes.” Id. 

But the Court went on to explain that “Congress had 

good reason to distinguish the two.” Id. For final orders of 

removal, “[t]he relevant facts will usually just be the 

existence of the noncitizen’s prior criminal convictions,” so 

that “[b]y barring review of factual challenges to final orders 

of removal, Congress prevented further relitigation of the 

underlying factual bases for those criminal convictions.” Id. 

But CAT orders were different, Nasrallah explained, 

because “the issues related to a CAT order will not typically 

have been litigated prior to the alien’s removal proceedings.” 

Id. Those factual issues included “the noncitizen’s past 

experiences in the designated country of removal” and “the 

political or other current conditions in that country.” Id. In 

the Supreme Court’s view, “[b]ecause the factual 

components of CAT orders will not previously have been 

litigated in court and because those factual issues may be 

critical to determining whether the noncitizen is likely to be 

tortured if returned, it makes some sense that Congress 

would provide an opportunity for judicial review . . . of the 

factual components of a CAT order.” Id. Based on this 
32 TAPIA CORA V. GARLAND

passage from Nasrallah, the Fourth Circuit in Williams

concluded that Congress did not intend § 1252(a)(2)(C) to 

prevent courts from reviewing “collateral” issues distinct 

from the factual bases of the underlying convictions. 

Williams, 59 F.4th at 629.

This reading of Nasrallah is not correct, nor does this 

passage in Nasrallah support our “on the merits” exception. 

The Supreme Court was clear that the first reason factual 

challenges to CAT orders were different from factual 

challenges to final orders of removal was because the 

“statutory text . . . differentiates between the two kinds of 

orders.” Nasrallah, 140 S.Ct. at 1693. It is that textual

analysis in Nasrallah—defining what qualifies as final 

orders of removal, and then making clear that judicial review

does not extend to factual challenges to such orders—that is 

clearly irreconcilable with the reasoning and theory of our

“on the merits” exception. 

The remainder of the Nasrallah passage in question does 

not resuscitate the “on the merits” exception. There, the 

Supreme Court was discussing the types of factual 

challenges that are “usually” or “typically” associated with 

challenges to CAT orders and final orders of removal. Id. 

In making that descriptive observation, the Supreme Court 

was not laying down any kind of rule that factual challenges 

to “the merits” of a final order of removal remain reviewable 

notwithstanding § 1252(a)(2)(C). Such an interpretation 

would be directly contrary to the core holding and logic of 

Nasrallah, which is that when it comes to final orders of 

removal and orders that merge into them, “the court of 

appeals may not review factual challenges” because “the 
TAPIA CORA V. GARLAND 33

relevant statutory text precludes” it. Id. at 1690–91

(emphasis in original).

5

D

Because Nasrallah is clearly irreconcilable with our “on 

the merits” exception to § 1252(a)(2)(C), we hold that this 

exception should no longer apply. Following Nasrallah, 

courts should now undertake the following straightforward

analysis when deciding whether the criminal alien bar 

precludes judicial review. 

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. See Nasrallah, 140 S. Ct. at 1691. 

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). See id. at 1690–91; see also 

Pechenkov, 705 F.3d at 451–52 (Graber, J., concurring). 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 

5 We note that our decision today does not disturb the result in AlvarezSantos. Unuakhaulu and its progeny forged the “on the merits” 

exception based on an extension of the reasoning in Alvarez-Santos. See 

Pechenkov, 705 F.3d at 450 (Graber, J., concurring) (“In Unuakhaulu, 

we took Alvarez-Santos a step further.”). But as we have discussed, the 

key issue on which Alvarez-Santos relied was that the IJ did not find that 

the petitioner was removable due to a conviction covered by 

§ 1252(a)(2)(C). See 332 F.3d at 1249. Alvarez-Santos stands for the 

proposition that for the criminal alien bar to apply, there must be an 

agency “determination that the alien is removable” based on a covered 

conviction. Id. at 1251. We have no occasion in this case to decide 

whether Nasrallah or other intervening law changes this threshold 

requirement in Alvarez-Santos, which therefore remains intact.
34 TAPIA CORA V. GARLAND

factual challenges notwithstanding a criminal conviction 

that would otherwise implicate § 1252(a)(2)(C). Nasrallah, 

140 S. Ct. at 1690–91.

We now recap how this framework applies in this case. 

As we explained in Part II.A, the denial of Tapia Coria’s

motions to remand and for administrative closure merges

with her final order of removal. That is, a decision on those 

two motions would “affect the validity of the final order of 

removal” and would “disturb the final order of removal,” and

they are motions “on which the validity of the final order is 

contingent.” Nasrallah, 140 S. Ct. at 1691. There is no 

dispute that, as a legal matter, Tapia Coria’s conviction is a 

covered offense under § 1252(a)(2)(C). We therefore lack 

jurisdiction to review Tapia Coria’s challenge to the BIA’s 

factual finding that it is speculative whether and when Tapia 

Coria will obtain derivative U visa relief. We could have 

reviewed any constitutional claims or questions of law had 

Tapia Coria raised them. But she has not. 

Accordingly, the petition for review is

DISMISSED.