Javier Ramon Lopez-Molina v. John Ashcroft, Attorney General

368 F.3d 1206 Javier Ramon LOPEZ-MOLINA, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-74095. United States Court of Appeals, Ninth Circuit. Argued February 11, 2004. Submitted February 25, 2004. Filed June 2, 2004. Bertram Polis, Tucson, AZ, for the petitioner. Genevieve Holm, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before: TASHIMA and CLIFTON, Circuit Judges, and LEIGHTON, District Judge. * Opinion by Judge Clifton; Dissent by Judge Tashima CLIFTON, Circuit Judge: 1 Javier Ramon Lopez-Molina, a native and citizen of Mexico, petitions for review of a summary affirmance by the Board of Immigration Appeals (BIA) of an order of removal entered by the immigration judge (IJ). Before addressing the merits of his petition, we must determine whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) divests this court of jurisdiction to review Lopez-Molina's removal order. More specifically, we must decide whether 8 U.S.C. § 1252 (a)(2)(C) — which bars our review of a removal order when the…

Opinion by Judge Clifton; Dissent by Judge Tashima

Javier Ramon Lopez-Molina, a native and citizen of Mexico, petitions for review of a summary affirmance by the Board of Immigration Appeals (BIA) of an order of removal entered by the immigration judge (IJ). Before addressing the merits of his petition, we must determine whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) divests this court of jurisdiction to review Lopez-Molina’s removal order. More specifically, we must decide whether 8 U.S.C. § 1252 (a)(2)(C) — which bars our review of a removal order when the alien “is removable by reason of having committed a criminal offense covered in section 1182(a)(2)”— applies when the alien is removable pursuant to 8 U.S.C. § 1182 (a)(2)(C) because an immigration official has “reason to believe” the alien was involved in illicit drug trafficking. Because our decision in Alarcon-Serrano v. INS, 220 F.3d 1116 (9th Cir. 2000) held that we lacked jurisdiction under nearly identical circumstances, we dismiss Lopez-Molina’s petition for review.

I. BACKGROUND

In 1990, Arizona law enforcement officers, acting on a tip regarding the transport of a load of…

dissenting:

The threshold issue we must decide is whether 8 U.S.C. § 1252 (a)(2)(C), 1 the jurisdiction-stripping provision of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which deprives appellate courts of jurisdiction to review orders of removal where the alien is removable by reason of having “committed a criminal offense,” applies when the alien is found removable on the ground that an immigration official has “reason to believe” that the alien is an illicit drug trafficker. See 8 U.S.C. § 1182 (a)(2)(C). 2 Because I disagree that the jurisdiction-stripping provision applies in this case, I respectfully dissent.

As a first principle, the Supreme Court has instructed that jurisdiction-stripping legislation is to be strictly construed. INS v. St. Cyr, 533 U.S. 289, 298 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001) (noting the “strong presumption in favor of judicial review of administrative action”). As the majority recognizes, we have jurisdiction to determine whether the jurisdiction-stripping provision of § 1252(a)(2)(C) applies. Nor iega-Lopez v. Ashcroft, 335 F.3d 874, 879 (9th Cir.2003). In most cases the inquiry is relatively simple. All but two…