United States Court of Appeals For the First Circuit
No. 19-1044
LIQUN XU (a.k.a. DAN XU),
Petitioner, Appellant,
v.
MERRICK B. GARLAND, Attorney General; ALEJANDRO MAYORKAS, Secretary of Homeland Security; THOMAS BROPHY, Assistant Field Director,
Respondents, Appellees.
PETITION FOR REVIEW OF AN ORDER OF THE DEPARTMENT OF HOMELAND SECURITY
Before
Lynch and Barron, Circuit Judges, Burroughs,* District Judge.
Kimberly A. Williams, with whom Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau PC were on brief, for petitioner. Gilles Bissonnette and SangYeob Kim were on brief for amicus curiae American Civil Liberties Union of New Hampshire, in support of petitioner. Sarah K. Pergolizzi, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Brian Boynton, Acting Assistant Attorney General, and Kohsei Ugumori, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.
* Of the District of Massachusetts, sitting by designation. February 18, 2022 BARRON, Circuit Judge. Liqun Xu, a Chinese national,
petitions for review of a Final Administrative Removal Order
("FARO") that the U.S. Department of Homeland Security ("DHS")
issued against her in March 2018. We dismiss the petition for
lack of jurisdiction.1
I.
Xu was admitted to the United States on June 25, 2014,
on a nonimmigrant visitor visa. Some years later, in January of
2018, she was convicted of two Massachusetts state law offenses:
"[k]eeping [a] house of ill fame," Mass. Gen. Laws ch. 272 § 24,
and money laundering, Mass. Gen. Laws ch. 267A § 2(1).
On March 20 of that same year, a DHS Immigration and
Customs Enforcement Officer served Xu with a Notice of Intent to
Issue a FARO ("NOI"). See 8 U.S.C. § 1228(b)(4). The NOI alleged
that Xu was a noncitizen "not lawfully admitted for permanent
residence," see 8 U.S.C. § 1228(b)(2)(A), and that she had been
"convicted of an aggravated felony as defined in . . . 8 U.S.C.
§ 1101(a)(43)(K)." The NOI went on to state that, for those
reasons, Xu was removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii), which makes noncitizens with such
convictions removable, and § 1228(b), which permits removal on
1 We acknowledge with appreciation the assistance of amicus curiae the American Civil Liberties Union of New Hampshire.
- 3 - that basis to be expedited. See id. §§ 1227(a)(2)(A)(iii),
1228(b)(1).
The DHS issued the FARO against Xu that same day, signed
it six days later, and served it on Xu two days after that, on
March 28, 2018. The FARO stated that Xu was removable pursuant to
8 U.S.C. § 1227(a)(2)(A)(iii), because she had been convicted of
an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(K),
which lists offenses relating to "prostitution" and "trafficking
in persons."
At some point after she had been served with the NOI, Xu
expressed a "fear of persecution or torture" if she were removed
to China. Xu was then referred to an asylum officer, who
interviewed her on September 6, 2018, and concluded that same day
that although Xu's testimony was credible, she had not established
"a reasonable fear of prosecution or torture."
Xu requested a review of that determination, however,
and the asylum officer referred her "reasonable fear" claim to an
immigration judge. A few weeks later, on October 5, 2018, an
immigration judge vacated the decision of the asylum officer
rejecting that claim after finding that Xu had "established a
reasonable probability that she would be tortured" if she were
removed to China. Xu was placed in "withholding-only proceedings"
on October 5, 2018, in which she requested withholding of removal
- 4 - based on her "reasonable fear" claim. See 8 C.F.R.
§ 1208.31(g)(2).
On January 11, 2019, while the withholding-only
proceedings were pending before the immigration judge, Xu filed in
our Court a petition for review of the FARO that the DHS had issued
against her about a year earlier. The petition challenged the
lawfulness of the FARO and asserted that 8 U.S.C. §§ 1252(a) and
1252(b) provided this court with jurisdiction over her challenge
to the FARO.
Four days after Xu filed her petition for review of her
FARO in our Court, the immigration judge in her withholding-only
proceedings granted Xu deferral of removal under the United
Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment ("CAT"). That ruling barred the
government from removing her to China, see 8 C.F.R. § 1208.17(a),
pursuant to the FARO, but it did not overturn the FARO itself.
Both Xu and the government waived appeal of the immigration judge's
order granting her deferral of removal.
Then, on June 8, 2020, after Xu had submitted her opening
brief to this Court in connection with her petition for review of
her FARO, the DHS purported to "cancel" the FARO. Two days later,
the government filed a motion to dismiss Xu's petition for review
on jurisdictional grounds because it contended that, in
consequence of the DHS's cancellation of her FARO, she was "no
- 5 - longer subject to a final order of removal." See 8 U.S.C.
§ 1252(a)(1) (providing for "[j]udicial review of a final order of
removal").
Approximately six months later, in December 2020, while
Xu's petition for review of the FARO was still pending in this
Court, the DHS issued Xu a Notice to Appear for separate removal
proceedings before an immigration judge pursuant to 8 U.S.C.
§ 1229a, based solely on her extended presence in the United States
after her visa had expired and not on any of her past convictions.
The government then notified this Court of that action as part of
its briefing in support of its motion to dismiss her petition for
review, and Xu in return filed a sur-reply brief. This Court
denied the motion to dismiss Xu's petition for review without
prejudice, pending further consideration by the panel assigned to
hear Xu's petition for review.2
II.
Xu contends in support of her petition for review that
her FARO is unlawful because the DHS violated her federal
constitutional right to procedural due process. More
2According to a representation made by the government in a separate letter filed after this court denied the motion to dismiss, on account of a typographical error in the Notice to Appear that was issued in December 2020, the DHS served Xu with a second Notice to Appear for proceedings under 8 U.S.C.
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United States Court of Appeals For the First Circuit
No. 19-1044
LIQUN XU (a.k.a. DAN XU),
Petitioner, Appellant,
v.
MERRICK B. GARLAND, Attorney General; ALEJANDRO MAYORKAS, Secretary of Homeland Security; THOMAS BROPHY, Assistant Field Director,
Respondents, Appellees.
PETITION FOR REVIEW OF AN ORDER OF THE DEPARTMENT OF HOMELAND SECURITY
Before
Lynch and Barron, Circuit Judges, Burroughs,* District Judge.
Kimberly A. Williams, with whom Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau PC were on brief, for petitioner. Gilles Bissonnette and SangYeob Kim were on brief for amicus curiae American Civil Liberties Union of New Hampshire, in support of petitioner. Sarah K. Pergolizzi, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Brian Boynton, Acting Assistant Attorney General, and Kohsei Ugumori, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.
* Of the District of Massachusetts, sitting by designation. February 18, 2022 BARRON, Circuit Judge. Liqun Xu, a Chinese national,
petitions for review of a Final Administrative Removal Order
("FARO") that the U.S. Department of Homeland Security ("DHS")
issued against her in March 2018. We dismiss the petition for
lack of jurisdiction.1
I.
Xu was admitted to the United States on June 25, 2014,
on a nonimmigrant visitor visa. Some years later, in January of
2018, she was convicted of two Massachusetts state law offenses:
"[k]eeping [a] house of ill fame," Mass. Gen. Laws ch. 272 § 24,
and money laundering, Mass. Gen. Laws ch. 267A § 2(1).
On March 20 of that same year, a DHS Immigration and
Customs Enforcement Officer served Xu with a Notice of Intent to
Issue a FARO ("NOI"). See 8 U.S.C. § 1228(b)(4). The NOI alleged
that Xu was a noncitizen "not lawfully admitted for permanent
residence," see 8 U.S.C. § 1228(b)(2)(A), and that she had been
"convicted of an aggravated felony as defined in . . . 8 U.S.C.
§ 1101(a)(43)(K)." The NOI went on to state that, for those
reasons, Xu was removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii), which makes noncitizens with such
convictions removable, and § 1228(b), which permits removal on
1 We acknowledge with appreciation the assistance of amicus curiae the American Civil Liberties Union of New Hampshire.
- 3 - that basis to be expedited. See id. §§ 1227(a)(2)(A)(iii),
1228(b)(1).
The DHS issued the FARO against Xu that same day, signed
it six days later, and served it on Xu two days after that, on
March 28, 2018. The FARO stated that Xu was removable pursuant to
8 U.S.C. § 1227(a)(2)(A)(iii), because she had been convicted of
an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(K),
which lists offenses relating to "prostitution" and "trafficking
in persons."
At some point after she had been served with the NOI, Xu
expressed a "fear of persecution or torture" if she were removed
to China. Xu was then referred to an asylum officer, who
interviewed her on September 6, 2018, and concluded that same day
that although Xu's testimony was credible, she had not established
"a reasonable fear of prosecution or torture."
Xu requested a review of that determination, however,
and the asylum officer referred her "reasonable fear" claim to an
immigration judge. A few weeks later, on October 5, 2018, an
immigration judge vacated the decision of the asylum officer
rejecting that claim after finding that Xu had "established a
reasonable probability that she would be tortured" if she were
removed to China. Xu was placed in "withholding-only proceedings"
on October 5, 2018, in which she requested withholding of removal
- 4 - based on her "reasonable fear" claim. See 8 C.F.R.
§ 1208.31(g)(2).
On January 11, 2019, while the withholding-only
proceedings were pending before the immigration judge, Xu filed in
our Court a petition for review of the FARO that the DHS had issued
against her about a year earlier. The petition challenged the
lawfulness of the FARO and asserted that 8 U.S.C. §§ 1252(a) and
1252(b) provided this court with jurisdiction over her challenge
to the FARO.
Four days after Xu filed her petition for review of her
FARO in our Court, the immigration judge in her withholding-only
proceedings granted Xu deferral of removal under the United
Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment ("CAT"). That ruling barred the
government from removing her to China, see 8 C.F.R. § 1208.17(a),
pursuant to the FARO, but it did not overturn the FARO itself.
Both Xu and the government waived appeal of the immigration judge's
order granting her deferral of removal.
Then, on June 8, 2020, after Xu had submitted her opening
brief to this Court in connection with her petition for review of
her FARO, the DHS purported to "cancel" the FARO. Two days later,
the government filed a motion to dismiss Xu's petition for review
on jurisdictional grounds because it contended that, in
consequence of the DHS's cancellation of her FARO, she was "no
- 5 - longer subject to a final order of removal." See 8 U.S.C.
§ 1252(a)(1) (providing for "[j]udicial review of a final order of
removal").
Approximately six months later, in December 2020, while
Xu's petition for review of the FARO was still pending in this
Court, the DHS issued Xu a Notice to Appear for separate removal
proceedings before an immigration judge pursuant to 8 U.S.C.
§ 1229a, based solely on her extended presence in the United States
after her visa had expired and not on any of her past convictions.
The government then notified this Court of that action as part of
its briefing in support of its motion to dismiss her petition for
review, and Xu in return filed a sur-reply brief. This Court
denied the motion to dismiss Xu's petition for review without
prejudice, pending further consideration by the panel assigned to
hear Xu's petition for review.2
II.
Xu contends in support of her petition for review that
her FARO is unlawful because the DHS violated her federal
constitutional right to procedural due process. More
2According to a representation made by the government in a separate letter filed after this court denied the motion to dismiss, on account of a typographical error in the Notice to Appear that was issued in December 2020, the DHS served Xu with a second Notice to Appear for proceedings under 8 U.S.C. § 1229a on January 5, 2021. It represented further that those removal proceedings remained ongoing as of October 2021.
- 6 - specifically, Xu contends that the DHS did so by failing to provide
her with information about free legal services, misleading her as
to how to challenge the FARO, and denying without her consent her
right to challenge it. Xu also contends that her FARO is unlawful
because neither of her Massachusetts convictions is for an offense
referred to in 8 U.S.C. § 1101(a)(43)(K) and so neither qualifies
as an "aggravated felony" within the meaning of 8 U.S.C.
§ 1227(a)(2)(A)(iii).
A FARO is a "final order of removal" within the meaning
of 8 U.S.C. § 1252(a)(1). See Sanabria Morales v. Barr, 967 F.3d
15, 19 (1st Cir. 2020). But, as Xu agrees, we lack jurisdiction
to hear a petition for review of her FARO if the DHS validly
cancelled it. See 8 U.S.C. § 1252(a)(1); id. § 1252(b)(9)
("Judicial review of all questions of law and fact . . . shall be
available only in judicial review of a final order under this
section."). Thus, we must decide, as a threshold matter of our
jurisdiction, whether the DHS's purported "cancellation" of Xu's
FARO was valid or whether she is right that it was not.
In finding the cancellation of the FARO valid here, we
start from the premise that, as a general matter, with respect to
the removal of a noncitizen, "[a]t each stage the Executive has
discretion to abandon the endeavor . . . ." Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 483 (1999). Moreover, a FARO
is unlike other kinds of final orders of removal against
- 7 - noncitizens in that it is issued solely by the DHS, compare 8
U.S.C. § 1228(b)(4), with id. § 1229a(a)(1), and Xu does not
develop an argument that the government is wrong to contend, as it
does here, that 8 C.F.R. § 103.5(a)(5)(i) authorizes the DHS to
cancel a FARO in circumstances that are "favorable" to the
noncitizen against whom it has been issued. See 8 C.F.R.
§ 103.5(a)(5)(i) ("When a Service officer, on his or her own
motion, reopens a Service proceeding or reconsiders a Service
decision in order to make a new decision favorable to the affected
party, the Service officer shall combine the motion and the
favorable decision in one action.").
Xu does contend that the cancellation of her FARO in her
case was "unfavorable," given that the DHS purported to cancel it
after she had filed her petition for review of it in our Court.
She goes on to contend that, as a result, the only portion of 8
C.F.R. § 103.5(a)(5) that could apply in her specific case is
§ 103.5(a)(5)(ii) and that the DHS failed to comply with its
requirements. See id. § 103.5(a)(5)(ii)(requiring an officer to
"give the affected party" thirty days "to submit a brief" when
"the new decision may be unfavorable to the affected party").
But, while the government has initiated removal
proceedings against Xu pursuant to 8 U.S.C. § 1229a in the wake of
its purported cancellation of her FARO, the cancellation -- if
valid -- will result in there being no final removal order against
- 8 - her at the present time. In addition, the government has
represented to us that it is "unlikely" to charge Xu with being
removable as an "aggravated felon" in the post-cancellation
removal proceedings before an immigration judge that have been
initiated pursuant to § 1229a. And, finally, the government has
further represented that "the DHS has agreed not to contest the
merits of her grant of CAT protection absent changed circumstances
in China." We therefore are not persuaded by Xu's arguments for
holding that the DHS did not validly cancel her FARO, such that no
"final order of removal" is before us. 8 U.S.C. §§ 1252(a)(1),
1252(b)(9).3
III.
For the foregoing reasons, Xu's petition is dismissed.4
3We note that this is not a case in which the government cancelled the FARO only after the government had relied on it to remove the noncitizen against whom it had been issued. Cf. Castendet-Lewis v. Sessions, 855 F.3d 253, 259 (4th Cir. 2017) (exercising jurisdiction over a petition for review of a FARO and declining to find that FARO cancelled where the government had already removed the noncitizen pursuant to it). 4In Xu's briefing in opposition to the government's motion to dismiss, she requests "attorneys' fees and reimbursement of fees and production costs". But, Xu has not yet made any such motion, and the government advanced no response to that request. We thus do not address that request here.
- 9 -