Cordes v. Mukasey (9th Cir. 2/25/08)

Rymer, Noonan (Ferguson dissenting)

The 9th Circuit vacated its decision in Cordes v. Gonzales, 421 F.3d 889

(9th Cir. 2005), on the grounds that the Board's 2003 remand to the IJ for entry of a removal order (under the now-vacated decision in Molina-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir. 2004) had the effect of depriving the CtApp of jurisdiction to review the initial BIA order.

Read opinion here:

Facts: Under Molina-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir. 2004), the BIA had no authority to enter a removal order - therefore, the BIA sua sponte vacated the removal order it entered in 2005, and remanded to the IJ for entry of a removal order.  That occurred before the CtApp decision in this case, later in 2005.  This order vacates that decision.

Background note: The original 9th circuit's decision in Cordes v. Gonzales, 421 F.3d 889, (9th Cir. 2005) was that there was no rational basis for agency rule making people eligible for 212(c) where crimes were serious enough to make them removable pre-1996, but no eligibility for people not removable at time of conviction.  Judge Ferguson authored that decision, with Judge Rymer in partial dissent.  It appears that Judge Noonan was the deciding vote.

1.  Distinguished Lolong, because here, the case was remanded to the IJ for further proceedings.

This case is different from Lolong v. Gonzales, 484 F.3d 1173, 1177 (9th Cir. 2007), because, here, the BIA remanded to the IJ for “further proceedings”... The remand for further proceedings is what caused us to lose jurisdiction. Otherwise, this court and the IJ would both have been considering the same thing at the same time: Cordes’s removal. Although we didn’t know it, this happened before the panel published its opinion. Accordingly, we now vacate our August 24, 2005 opinion and deny the pending petition for rehearing en banc as moot.

Ferguson, dissenting

1.  Lolong governs here.

Lolong made clear that the order of deportation entered by the Immigration Judge (“IJ”) who initially heard Cordes’s case remains in effect, providing us with a final agency decision to review. Id. at 1178.

[It isn't clear that even Judge Ferguson understands that it was the removability finding, which was never disturbed, which makes this argument possible.]

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Heather cordes - this case is neverending   | 207.200.116.139 | 2008-09-20 17:52:34 We have been fighting for my mother to stay in this country for 8 years now. When will she be able to go on and live a normal life without having to report to immigration every week or worry about every move she makes because it could be her last in the U.S. The government is wasting tax dollars on this case when morally they are in the wrong here. My mother has 4 citizen children and has been here since 1970 as a Legal Permanent Resident. Need I say more? She pays taxes just like everyone else. I hardly think an immigrant from Scotland poses a threat to this country. Most importantly, this case has aged my mother due to the stress involved and that cannot be compensated for, nor would they even think about the humanity involved here. Reply | Quote

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