In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1386

SALVADOR TAPIA LEMOS,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of Orders of the

Department of Homeland Security

SUBMITTED MARCH 4, 2011—DECIDED APRIL 7, 2011

Before EASTERBROOK, Chief Judge, and COFFEY and

ROVNER, Circuit Judges.

EASTERBROOK, Chief Judge. Salvador Tapia Lemos, a

citizen of Mexico, was ordered removed to his native

country in 1997 following his convictions for obstruction of justice and failing to report an accident (that

is, being a hit-and-run driver). He reentered the United

States without inspection or the Attorney General’s

permission. He was caught in June 2010 and removed

again. He promptly returned, again in secret. When he
2 No. 11-1386

was caught in October 2010, the Department of Homeland

Security reinstated the 1997 removal order, see 8

U.S.C. §1231(a)(5), and proposed to remove Tapia for a

third time. On December 9, 2010, through counsel,

Tapia asked the Department to stay his removal and

rescind the 1997 order, which, Tapia contended, was

improper. He contends that his convictions were not

for “aggravated felonies.” His counsel cited Matter of

Espinoza-Gonzalez, 22 I.&N. Dec. 889, 897 (BIA 1999), and

Matter of Joseph, 22 I.&N. Dec. 799, 801 (BIA 1999), both

of which post-date the 1997 removal order. Counsel

asked the Department to institute fresh removal proceedings so that Tapia could present legal arguments

that he had not advanced in 1997.

Believing that stealthy reentry is not a proper means to

contest the validity of a removal order—and that Tapia’s

principal obstacle is his lack of any claim of entitlement

to be in the United States, whether or not his felonies are

“aggravated”—the Department of Homeland Security

denied the motion for a stay of removal and decided

to leave the reinstated removal order in force. Tapia

then filed a petition for review in this court.

Reinstatement of an old removal order is reviewable

in a court of appeals under 8 U.S.C. §1252. Gomez-Chavez

v. Perryman, 308 F.3d 796, 801 (7th Cir. 2002). But our

jurisdiction depends not only on the existence of a

final removal order but also on a timely petition for

review, which must be filed within 30 days of the

removal order. 8 U.S.C. §1252(b)(1). This limit is jurisdictional, not subject to extension on equitable grounds.
No. 11-1386 3

Stone v. INS, 514 U.S. 386 (1995). The Attorney General

has asked us to dismiss Tapia’s petition: the order of

removal was reinstated on November 1, 2010, yet the

petition was not filed until February 16, 2011, more

than 100 days later.

Tapia has two replies. The first is that the time does not

start until the alien is served with the order—which,

Tapia maintains, did not occur until some time in

January 2011. There are multiple problems with this

contention. The language of the statute is one. Section

1252(b)(1) says that the 30 days runs from “the date of

the final order of removal.” We wrote in Nowak v. INS,

94 F.3d 390, 392 (7th Cir. 1996), that the statute means

what it says: the time runs from the date on the face of

the order, not on the date it is received. Tapia asks us to

overrule Nowak and to hold, as some other circuits have

done, that the time runs from the order’s receipt rather

than its entry. See Villegas de la Paz v. Holder, 614 F.3d

605, 607–08 (6th Cir. 2010) (collecting cases). We are

skeptical, and not only on linguistic grounds. Stone

analogized a petition for review of a removal order to

a notice of appeal from the decision of a district court.

Both time limits are jurisdictional. See Bowles v. Russell,

551 U.S. 205 (2007). And the time to appeal a district

court’s order begins when the order is entered on the

court’s docket, not when the litigant or counsel receives

a copy by mail. Fed. R. App. P. 4(a)(7). It is hard to see

why §1252(b)(1) should be treated differently.

But we need not give a definitive answer today, because Tapia received the order on November 1. His
4 No. 11-1386

signature is on the order; so is his thumbprint. Perhaps

the Department did not “serve” the order in the sense

of mailing an additional copy, but that was not necessary when the order was issued in the alien’s presence.

And whether or not his lawyer enjoyed formal service

by mail, counsel had actual knowledge no later than

December 9, 2010, the date on which counsel filed the

motion to stay removal and vacate the order’s reentry.

A lawyer who has actual knowledge of a removal order

is not well placed to contend that lack of service defers

any need to file a petition for removal. So even if we

assume that counsel acquired knowledge on December 9,

2010, and that time starts with knowledge (as opposed

to the order’s issuance), the petition for removal is still

untimely. It was filed 68 days after December 9, 2010.

Tapia has a second line of argument—that although

denying a motion for a stay, and declining to vacate the

1997 order and start over, is not itself a removal order, cf.

Fonseca-Sanchez v. Gonzales, 484 F.3d 439 (7th Cir. 2007),

it amounts to the denial of a motion to reopen removal

proceedings, and thus is amenable to judicial review. See

Kucana v. Holder, 130 S. Ct. 827 (2010). This order was

entered on January 18, 2011, and Tapia contends that

the petition filed on February 16 thus is timely.

It is hard to see how the order of January 18 could be

classified as one denying reopening. Tapia did not ask

the agency to reopen the decision made in 1997. The

word “reopen” does not appear in his request. Motions

to reopen must be filed within 90 days of the final administrative decision, 8 U.S.C. §1229a(c)(7)(C)(i), a time
No. 11-1386 5

that expired more than a decade ago. What counsel

asked for in December 2010 was (a) a stay of removal;

(b) the rescission of the 2010 decision to use the

1997 order as the basis for another removal; and (c)

the commencement of a new removal proceeding. In

other words, Tapia wanted the agency not to execute an

outstanding order of removal and instead to begin proceedings that could lead to another (or to none).

Yet administrative decisions “to commence proceedings,

adjudicate cases, or execute removal orders against

any alien under this chapter” are not reviewable.

8 U.S.C. §1252(g). See also Reno v. American-Arab AntiDiscrimination Committee, 525 U.S. 471 (1999) (explaining

the effect of §1252(g)).

Because Tapia did not file a timely petition to review

the order of November 1, 2010, and the order of January 18,

2011, is not reviewable as either a removal order or the

denial of a motion to reopen the 1997 removal order,

we dismiss the petition for want of jurisdiction.

4-7-11