Silvia Tapia Coria, a lawful permanent resident of the United States, was placed in removal proceedings after being found inadmissible upon re-entry due to a 1999 conviction for possession for sale of methamphetamine. An immigration judge ordered her removed to Mexico. While her appeal was pending before the Board of Immigration Appeals (BIA), Coria filed motions for remand and administrative closure, arguing she was eligible to become a derivative beneficiary of her husband's pending U visa application. The BIA denied these motions, finding it speculative whether she would obtain the U visa relief, particularly given the need for an inadmissibility waiver. Coria then petitioned the Ninth Circuit for review of the BIA's denial, challenging the agency's factual finding regarding the uncertainty of the visa availability.
The panel began by acknowledging the 'criminal alien bar' under 8 U.S.C. § 1252(a)(2)(C), which generally strips courts of jurisdiction to review final orders of removal against aliens removable due to covered criminal offenses. Exceptions exist for constitutional claims or questions of law under § 1252(a)(2)(D), and the Ninth Circuit had previously recognized an 'on the merits' exception that allowed review of factual challenges when the agency denied relief based on grounds other than the criminal conviction. However, the court determined that this 'on the merits' exception is now invalid. Relying on the Supreme Court's decision in Nasrallah v. Barr, the court explained that the statutory text precludes judicial review of factual challenges to final orders of removal. The court reasoned that the 'on the merits' exception, which permitted review of factual findings in certain contexts, is clearly irreconcilable with the reasoning and theory of Nasrallah. Under Nasrallah, a 'final order of removal' includes all rulings that merge into the final order, such as denials of motions for remand or administrative closure. Because Coria's motions, if granted, would affect the validity of the final order of removal, their denial merged into that order. Consequently, the court lacks jurisdiction to review Coria's factual challenge to the BIA's finding that her U visa prospects were speculative.
The decision effectively eliminates the Ninth Circuit's 'on the merits' exception for reviewing factual challenges in cases involving the criminal alien bar. Petitioners with covered criminal convictions can no longer seek judicial review of factual determinations regarding the denial of relief that merges with the final order of removal, such as motions for remand or administrative closure. The petition is dismissed, leaving the BIA's factual finding regarding the uncertainty of U visa availability undisturbed. The court did not issue remand instructions as the case was dismissed for lack of jurisdiction.
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