F I LED

United States Court of Appeals

Tenth Circuit

May 1, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BALTAZAR ABEL SOSAVALENZUELA,

Petitioner-Appellant,

v. No. 05-9582

ALBERTO R. GONZALES,

ATTORNEY GENERAL,

Respondent-Appellee.

PETITION FOR REVIEW FROM AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

(D.C. NO. A 90-709-068)

Laura L. Lichter, Lichter & Associates, P.C., Denver, Colorado, for PetitionerAppellant.

Jennifer L. Lightbody, Attorney (Stephen J. Flynn, Senior Litigation Counsel,

with her on the briefs) Office of Immigration Litigation, Civil Division, United

States Department of Justice, Washington, DC, for Respondent-Appellee.

Before O’BRIEN, EBEL, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Baltazar Abel Sosa-Valenzuela, a lawful permanent resident, obtained a

waiver from removal after the Department of Homeland Security (DHS) sought to

have him deported to his native Mexico. The Board of Immigration Appeals (BIA)
-2-

concluded that the waiver should not have been granted and ordered

Sosa-Valenzuela deported. This appeal raises two issues that have yet to be

resolved in our Circuit: (1) what constitutes a “final order of removal” for purposes

of appellate jurisdiction under 8 U.S.C. § 1252(a)(1) and § 1101(a)(47)(A); and (2)

whether the BIA has the independent authority to issue a final order of removal in

the absence of a removal order or a finding of deportability by an immigration

judge. 

We conclude (1) an immigration judge must first either issue an order of

removal or make a finding of deportability to confer us with appellate jurisdiction;

and (2) the BIA does not have the independent statutory authority to issue an order

of removal in the first instance. 

Since the record in this case discloses no finding of deportability by the

immigration judge, we are left without a reviewable final order of removal. 

Consequently, we lack jurisdiction under 8 U.S.C. § 1252, and, accordingly

DISMISS the appeal and REMAND to the BIA for further proceedings.

I. Background

Baltazar Sosa-Valenzuela illegally entered the United States from Mexico in

1981 at the age of three. He became a lawful permanent resident in June of 1992 as

part of an amnesty program implemented by Congress in its 1986 immigration

reform legislation. 

In 1994, at age 16, Sosa-Valenzuela pleaded guilty in Colorado of attempt to

commit murder in the second degree and unlawful possession of a firearm by a
The proceedings were initially brought by the Immigration and 1

Naturalization Service, but that agency ceased to exist as of March 1, 2003 when

it was replaced by three separate agencies within the Department of Homeland

Security. Homeland Security Act of 2002, Pub. L. No. 107-296, § 471; 6 U.S.C.

§ 291. For simplicity, we refer to the Department of Homeland Security

throughout this opinion. 

 The former § 212(c) read: 2

Aliens lawfully admitted for permanent residence who temporarily

proceeded abroad voluntarily and not under an order of deportation, and

who are returning to a lawful unrelinquished domicile of seven

consecutive years, may be admitted in the discretion of the Attorney

General without regard to the provisions of subsection (a) of this

section (other than paragraphs (3) and (9)(C)). Nothing contained in this

subsection shall limit the authority of the Attorney General to exercise

the discretion vested in him under section 1181(b) of this title. The first

sentence of this subsection shall not apply to an alien who has been

convicted of one or more aggravated felonies and has served for such

felony or felonies a term of imprisonment of at least 5 years.

8 U.S.C. § 1182(c) (1994 Supp. II 1996).

-3-

juvenile. In 1997, as a result of a successful post-conviction petition based on the

ineffectiveness of counsel in the earlier plea dealings, the court amended

Sosa-Valenzuela’s guilty plea to first degree assault and a crime of violence with a

deadly weapon. The amended plea, although entered on December 15, 1997, was

dated nunc pro tunc, December 19, 1994. Based on Sosa-Valenzuela’s felony

assault plea, DHS brought deportation proceedings in February of 1997. 

1

In response to the deportation proceedings, Sosa-Valenzuela petitioned for a

waiver from removal under the provisions of § 212(c) of the Immigration and

Nationality Act (INA). Before it was repealed in 1996, § 212(c) authorized the

Attorney General to grant waivers from removal to aliens who met certain criteria.2

Sosa-Valenzuela argued that by virtue of the state court’s nunc pro tunc order, he
The following is the totality of the IJ’s October 12 minute order, with the 3

IJ marking the box in front of the second order option with an X as shown below:

Decision of the Immigration Judge

The Parties appeared before me on a previous occasion on an

application for relief. Formal findings were made that the respondent

had met all requirements, but the decision and orders were deferred for

a fingerprint clearance. The parties were advised that if no word was

received from either side by the deadline set, an order granting relief

would be entered. That deadline has passed and there has been no

objection to granting the application.

______ ORDER: It is ordered that respondent be granted cancellation

of removal under section 240A(a) of the Immigration and Nationality

Act.

__X__ ORDER: It is ordered that respondent be granted a waiver of

inadmissibility under section 212(c) of the Immigration and Nationality

Act. 

R. at 77. 

 The regulation published by the Executive Office for Immigration 4

Review (of which the BIA is a part) established the procedures for lawful

permanent residents with certain criminal convictions to apply for § 212(c) relief

under the old rule. 69 Fed. Reg. 57826 (Sept. 28, 2004). Relevant to this case,

(continued...)

-4-

was eligible for a waiver because he met the residency requirements of § 212 and

his felony plea occurred before § 212(c) was repealed in 1996. 

After an evidentiary hearing, the immigration judge (IJ) granted

Sosa-Valenzuela’s waiver in a minute order dated October 12, 2004. The order

only stated that “[Sosa-Valenzuela] be granted a waiver of inadmissibility under

section 212(c) of the Immigration and Nationality Act,” R. at 77; it made no

explicit finding of deportability. DHS subsequently asked the IJ to reconsider his 3

order, contending that Sosa-Valenzuela was no longer eligible for the § 212(c)

waiver because of new regulations adopted on September 28, 2004 and that the

nunc pro tunc order was invalid.4
(...continued) 4

the regulation only allowed those who had pleaded guilty or nolo contendre

before April 1, 1997 to apply for relief under the former § 212(c). In its motion

to reconsider, the government argued Sosa-Valenzuela’s amended plea occurred

after this date, so Sosa-Valenzuela was not eligible for relief. Sosa-Valenzuela

claims the regulation should not apply since it took effect on October 28, 2004,

two weeks after the IJ’s initial decision to grant the waiver. He argued

alternatively that the nunc pro tunc order meant the deadline did not preclude his

application, even if the regulation applied to his case.

-5-

The IJ denied the motion to reconsider. He found the nunc pro tunc order

was valid and not designed to defeat the repeal of § 212(c), so the new regulations

did not apply. DHS appealed to the BIA, which concluded Sosa-Valenzuela was

not eligible for waiver because of an intervening interpretation of § 212. In its

decision reversing the IJ, the BIA ordered Sosa-Valenzuela deported immediately

to Mexico.

 Sosa-Valenzuela appealed, and we stayed his removal pending appeal. 

II. Discussion

While this case presents a number of issues on appeal, we must first

determine whether we have jurisdiction to consider Sosa-Valenzuela’s claims. We

conclude that we do not.

A. Jurisdictional Framework for Reviewing Removal Proceedings

Our jurisdiction to review removal proceedings requires a “final order of

removal.” Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006); 8 U.S.C.

§ 1252(a).
 In 1996, when the Illegal Immigration Reform and Immigrant 5

Responsibility Act (IIRIRA) amended the relevant statutes, the term “order of

removal” replaced “order of deportation” throughout most, but not all, of the

United States Code. See Soberanes v. Comfort, 388 F.3d 1305, 1308 n.1 (10th

Cir. 2004), Tang v. Ashcroft, 354 F.3d 1192, 1194 n.3 (10th Cir. 2003). The two

terms are coterminous when interpreting the statute.

 Section 1101(a)(47) reads in its entirety: 6

(A) The term “order of deportation” means the order of the special

inquiry officer, or other such administrative officer to whom the

Attorney General has delegated the responsibility for determining

whether an alien is deportable, concluding that the alien is deportable

or ordering deportation.

(B) The order described under subparagraph (A) shall become final

upon the earlier of--

(i) a determination by the Board of Immigration Appeals affirming such

order; or

(ii) the expiration of the period in which the alien is permitted to seek

review of such order by the Board of Immigration Appeals.

-6-

The Code does not expressly define an order of removal, but defines an

“order of deportation” as “the order . . . concluding that the alien is deportable or 5

ordering deportation.” 8 U.S.C. § 1101(a)(47)(A). An order of deportation

becomes “final” when (1) the BIA affirms the order on appeal, or (2) the period for

seeking BIA review has expired. 8 U.S.C. § 1101(a)(47)(B).6

Both parties contend that we have jurisdiction over this appeal. Although

DHS agrees we have no jurisdiction to review the appeal absent a final order of

removal, it argues one exists. DHS points to two sources for a final order under

8 U.S.C. § 1252(a)(1): (1) the IJ’s two orders granting and affirming the § 212(c)

waiver; and (2) the BIA order of removal of Sosa-Valenzuela after it ruled on

appeal. Sosa-Valenzuela argues, in contrast, that jurisdiction can be found even
 The now repealed § 212(c) also allowed the IJ—in cases where an alien 7

was returning to this country—to allow reentry without regard to the grounds of

admissibility, 8 U.S.C. § 1182(a), thus suggesting that a formal order of

deportation was an unnecessary step in the process. The regulations to apply for

§ 212(c) relief require only the submission of a Form I-191, Application for

Advance Permission to Return to Unrelinquished Domicile. 8 C.F.R.

§ 1212.3(a). The form requires no concession of deportability, because the form

and § 212(c) relief were initially meant to apply to aliens with permanent

residence status seeking to return to the United States. 

-7-

without a final order of removal under § 1252(a)(2)(D), which allows judicial

review of “constitutional claims or questions of law.” 

We turn to each argument.

B. Final Order of Removal

DHS contends that the IJ’s grant of a § 212(c) waiver, or alternatively, the

BIA’s removal order, constitute a final order of removal. We conclude they do not.

1. The IJ’s § 212(c) Orders.

DHS’s first argument is that the IJ’s § 212(c) waiver granted on October 12,

2004 (and its November 30, 2004 decision reaffirming the waiver) suffice as an

order of removal since they necessarily “conclud[e] that the alien is deportable”

under § 1101(a)(47)(A). Resp. Br. at 25. The gist of its argument is that the IJ

would not grant a waiver of deportation unless he first concluded the alien was

removable. 

The problem with this contention is that nowhere, in either granting the

waiver or reaffirming it, does the IJ make an express finding that Sosa-Valenzuela

was deportable or order him deported. Instead, the IJ’s orders merely approve a

waiver of inadmissibility under § 212(c) of the INA. While it is likely the IJ made 7
 In its order, the BIA concluded: “The motion to reconsider is granted, 8

the Immigration Judge’s October 12, 2004, order granting a section 212(c) waiver

is vacated, and the respondent is ordered removed from the United States to

Mexico.” R. at 3.

-8-

or intended to make such a finding, the record we have discloses none. The BIA

has not identified anywhere in the proceedings (nor do we have the transcript from

the § 212 proceedings) where a finding of deportability was made, and neither order

provides an express basis for our jurisdiction.

In sum, the IJ’s § 212(c) waiver determination on this record is not—by

itself—a substitute for a finding of deportability under § 1101(a)(47). Without a

showing that the IJ in fact reached the question of deportability, we cannot assume

such a finding and we lack jurisdiction.

2. The BIA’s Order on Appeal.

Even without an express finding of deportability from the IJ, DHS also

contends the BIA’s removal order itself confers jurisdiction. We disagree. 8

Statutory Scheme. As a threshold matter, the statutory scheme does not grant

the BIA the independent authority to conduct removal proceedings. Removal

proceedings are authorized by statute and in the first instance are conducted only by

immigration judges. 

Removal proceedings are governed by § 1229a. The plain language of the

statute points to the primary role of the IJ in determining removability. First, it

provides that “[an IJ] shall conduct proceedings for deciding the inadmissibility or

deportability of an alien.” 8 U.S.C. § 1229a(a)(1) (emphasis added). It then adds

“[u]nless otherwise specified in this chapter, a proceeding under this section shall
-9-

be the sole and exclusive procedure for determining whether an alien may be

admitted to the United States or, if the alien has been admitted, removed from the

United States.” Id. § 1229a(a)(3) (emphasis added). Finally, and even more

explicitly, § 1229a(c)(1)(A) provides that “the [IJ] shall decide whether an alien is

removable from the United States.” The statute thus explicitly vests the power to

conduct removal proceedings with the IJ in the first instance. The limited nature of

the BIA’s powers on the first question of removability naturally follows from its

position as an “appellate body” with the attending limitations on its “ability to

engage in fact-finding,” which under the statutory scheme has been left to the

immigration judges. See Torres de la Cruz v. Maurer, ___ F.3d ___, No. 06-9515,

2007 WL 970166 (10th Cir. April 3, 2007). 

The only statutory mention of the BIA in the removal process is found in

8 U.S.C. § 1101(a)(47), which provides an order of removal becomes “final” only

“upon the earlier” of (1) “a determination by the Board of Immigration Appeals

affirming such order”; or (2) “the expiration of the period in which the alien is

permitted to seek review of such order by the Board of Immigration Appeals.” 

8 U.S.C. § 1101(a)(47). The removal process thus contemplates a sequential

proceeding where the determination of deportability is made by immigration judges

and then reviewed by the BIA. See Noriega-Lopez v. Ashcroft, 335 F.3d 874,

883–84 (9th Cir. 2003) (finding that the statutes and regulations do not allow the

BIA to issue a final order of removal in the absence of such an order by the IJ). 
-10-

In short, if Congress intended for the BIA to determine deportability in the

first instance, it would have said so, and extended the authority to conduct removal

proceedings to the BIA. The statute does not so provide.

Case Law and Regulations. Nor do the case law and regulations suggest a

different interpretation of the plain meaning of the statutes. DHS contends the

statutes should be read to extend plenary authority to the BIA based on (1) a series

of immigration cases that predate the current statutory scheme; and (2) the BIA’s

delegated authority to act on behalf of the Attorney General in removal

proceedings. Again, we disagree.

Turning first to the federal case law, nothing suggests § 1229a confers

jurisdiction on the BIA to order deportation absent IJ findings of removability. 

DHS points to several Supreme Court and circuit cases it claims support the

conclusion the BIA may issue an order of removal in the first instance absent an

underlying IJ order. But in each of those cases a finding of deportability had

already been expressly made by the IJ. For example, in INS v. Aguirre-Aguirre,

526 U.S. 415 (1999), while the Supreme Court upheld a BIA decision ordering an

alien deported after the BIA vacated an IJ decision, the alien had already conceded

deportability before the IJ hearing. Id. at 422. 

The same is true of the circuit cases DHS relies on. In Solano-Chicas v.

Gonzales, 440 F.3d 1050 (8th Cir. 2006), for example, the Eighth Circuit held that

where an IJ has already issued an order concluding that an alien is deportable in the

course of waiver proceedings, the BIA’s subsequent cancellation of the waiver
 The final circuit court case cited by DHS does not apply here. In Palmer 9

v. INS, 4 F.3d 482 (7th Cir. 1993), no suggestion was made that the BIA ordered

deportation after denying the alien’s waiver request. The BIA overturned the IJ’s

grant of § 212(c) relief, but there is no indication that it then ordered removal. 

Morever, the alien had conceded deportability. Id. at 484.

DHS also points to two BIA decisions where BIA ordered deportation

without an underlying finding of deportability. Matter of Wojtkow, 18 I&N. Dec.

111 (BIA 1981); Matter of L-, 6 I&N. Dec. 666 (BIA 1955). While both

decisions are consistent with an assertion of broad BIA authority to order

deportation, neither addresses the statutory framework established by Congress

now in place, which places the “sole and exclusive procedure” for conducting

removal proceedings with an IJ. We thus find them unpersuasive.

-11-

leaves the IJ’s original order of removal in place. Id. at 1054; see also DelgadoReynua v. Gonzales, 450 F.3d 596, 601 (5th Cir. 2006) (“[W]here the BIA reverses

an IJ’s grant of discretionary relief and gives effect to the IJ’s original order of

removability, the BIA has merely eliminated ‘impediments to removal’ and effected

the original removal order.”); Lazo v. Gonzales, 462 F.3d 53, 54–55 (2d Cir. 2006);

Del Pilar v. U.S. Att’y Gen., 326 F.3d 1154, 1156 (11th Cir. 2003). And, even

more recently, in Guevara v. Gonzales, 472 F.3d 972 (7th Cir. 2007), the Seventh

Circuit upheld the BIA’s order of removal, but only in a case where the IJ already

found the alien removable based upon several felony convictions.9

These circuit cases stand for a proposition with which we agree. If the IJ

makes a finding of removability, that finding satisfies § 1101(a)(47)’s definition of

an order of deportation. In those circumstances, the BIA can order removal if it
 We thus disagree with the Ninth Circuit’s holding in Molina-Camacho v. 10

Ashcroft, 393 F.3d 937 (9th Cir. 2004) (finding that even with a conclusion of

removability by an IJ, the BIA must still remand for a formal order of

deportation). That decision fails to apply the plain language of § 1101(a)(47),

which defines an order of deportation to include an IJ’s finding of deportability. 

We have located no other case that agrees with Molina-Camacho.

-12-

reverses the IJ’s determination of waiver. But—at least on this record—that did 10

not happen in this case.

Finally, DHS’s tertiary argument that agency regulations support the BIA’s

plenary power is equally unpersuasive. DHS argues that the Attorney General has

delegated authority to the BIA to make initial findings of deportability. 8 C.F.R.

§ 1003.1 (2004). The regulation generally empowers the BIA in two ways: (1) it

“shall function as an appellate body charged with the review of those administrative

adjudications under the Act that the Attorney General may by regulation assign to

it,” § 1003.1(d); and (2) “a panel or Board member to whom a case is assigned may

take any action consistent with their authorities under the Act and the regulations as

is appropriate and necessary for the disposition of the case,” § 1003.1(d)(ii). 

The regulation is of little help. Nowhere does it expressly or impliedly grant

the BIA any authority to act in the shoes of the IJ in conducting removal

proceedings in the first instance. More importantly, the statutory removal

proceedings laid out in 8 U.S.C. § 1229a and the finality provisions laid out in 8

U.S.C. § 1101(a)(47)(A) plainly place with the IJ the initial responsibility of

ordering deportation or making a finding of deportation. 

 In sum, an order of removal by the IJ is required before the BIA may order

removal. This may include an express order of removal or, more generally, a
-13-

finding of deportability. Neither occurred in this case. Consequently, no final

order of removal yet exists, and we lack appellate jurisdiction under § 1252(a).

C. Jurisdiction to Review Constitutional Claims or Questions of Law

Sosa-Valenzuela contends that even without an order of removal we still

have jurisdiction because the REAL ID Act provided us jurisdiction to review

“constitutional claims or questions of law” and cites to 8 U.S.C. § 1252(a)(2)(D). 

The subsection reads:

Nothing in . . . any other provision of this Act (other than this section)

which limits or eliminates judicial review, shall be construed as

precluding review of constitutional claims or questions of law raised upon

a petition for review filed with an appropriate court of appeals in

accordance with this section.

8 U.S.C. § 1252(a)(2)(D). The statute only allows review of such questions when

“this section” does not preclude such review, namely the final order of removal

requirements laid out in § 1252(a)(1). 

We address this precise question in Hamilton v. Gonzales, ___F.3d___ No.

05-9560, 2007 WL_____ (10th Cir. May 1, 2007). There, we held that

§ 1252(a)(2)(D) is not an independent grant of appellate jurisdiction, but still

requires a final order of removal. Id. Thus, Sosa-Valenzuela’s contention suffers

from the same infirmity we discussed above—the absence of a final order of

removal. 

For these reasons, subsection 1252(a)(2)(D) does not provide jurisdiction

independent of a final order of removal.
-14-

III. Conclusion

Finding no final order of removal, we are without jurisdiction to review this

case. We remand to the BIA to remand to the IJ for a finding on deportability and

disposition of any other outstanding issues in the case.