Viloria v. Lynch

The U.S. Court of Appeals only has jurisdiction in removal proceedings over final orders of removal.

Sunny Viloria was adopted by a natural born U.S. citizen father and a naturalized citizen mother, and entered the U.S. on an IR4 orphan visa. Following a pleading of no contest, the government filed a Notice to Appear in Immigration Court and charged Viloria as removable as an alien convicted of a controlled substance crime. Viloria argued in a hearing before the Immigration Judge (“IJ”) that he was not removable because he had gained derivative citizenship through his adoptive parents. The IJ was persuaded by Viloria’s interpretation that he met the requirements under 8 U.S.C. § 1431(a), and found that Viloria had gained derivative citizenship under the requirements for a “child” under 8 U.S.C. § 1101(c)(1), even though he did not meet the requirements specifically applicable to adopted children in §1431(b). On appeal, the Board of Immigration Appeals (“BIA”) vacated and remanded the IJ’s decision, holding that the plain language of § 1431 served as an exception to the definition of child under § 1101(c)(1), therefore, Viloria was required to satisfy the requirements of § 1431(b). Following the decision of the BIA, Viloria appealed to the Ninth Circuit. The panel dismissed Viloria’s appeal for lack of jurisdiction. The panel held that the BIA’s reversal of the IJ’s decision did not constitute a final order of removal and that the panel lacked jurisdiction under 8 U.S.C. § 1252(b)(9) as a result. The panel rejected Viloria’s argument that nationality claims were reviewable and found the jurisdictional requirements of § 1252(b)(9) to be clear. DISMISSED.