Turcios v. U.S. Secretary, DHS

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
JOSE VIDAL TURCIOS, a/k/a Juan
Torrez,

Petitioner,

v.

CHAD WOLF, Acting United States
Secretary, Department of Homeland
Security,

Respondent.

No. 18-9549
(DHS Homeland Security)
_________________________________
ORDER
*

_________________________________
Before LUCERO, MURPHY, and EID, Circuit Judges.
_________________________________

Jose Vidal Turcios, also known as Juan Torrez, petitions for review of the
Immigration and Customs Enforcement’s (ICE) denial of his motion to reopen.
Because we lack jurisdiction, the petition is DISMISSED.

*
We automatically substitute Chad Wolf, the Acting Secretary of the
Department of Homeland Security, as the Respondent in this action pursuant to 10th
Cir. R. 43(c)(2).

FILED
United States Court of Appeals
Tenth Circuit

September 4, 2020

Christopher M. Wolpert
Clerk of Court
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I. Facts
Jose Turcios is a citizen and national of El Salvador who was accorded legal
permanent resident (LPR) status in 1995. In February 1997, Turcios pleaded guilty
to assault in the second degree in Colorado under the false name “Juan Torrez.” ROP
at 68. Turcios was sentenced to five years’ imprisonment and transferred to the
Immigration and Naturalization Service (INS)
1
for questioning as to his legal status.
Throughout his INS interview, Turcios maintained his false identity as “Juan Torrez,”
claiming to be a citizen of Mexico who entered the country illegally by foot near San
Ysidro, California in 1986. INS apparently performed a systems check in the Central
Index System for “Juan Torrez,” but the search yielded no results. Id. at 66.
Accordingly, INS determined Turcios’ Colorado conviction was an aggravated felony
that rendered him eligible for expedited removal under 8 U.S.C. § 1228. INS served
Turcios with a notice of intent to issue a final administrative removal order (NOI),
which alleged that Turcios:
(1) Was not a citizen or national of the United States;
(2) Is a citizen and native of Mexico;
(3) Had entered the United States illegally in San Ysidro, California in
1986;
(4) Had entered without inspection or admission by a United States
Immigration officer;
(5) Was not lawfully admitted for permanent residence in the United
States; and,

1
The INS was originally the agency vested with the immigration enforcement
power, but the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135,
abolished the INS, 6 U.S.C. § 291, and created ICE, id. § 271.
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(6) Had been convicted in February 1997 of felony assault in the second
degree.
Id. at 59, 61.
In June 1997, Turcios signed the NOI under his false identity, “Juan Torrez,”
indicating he had received the NOI and did not wish to contest its factual allegations.
Specifically, he acknowledged: “I admit the allegations and charge in this Notice of
Intent. I admit that I am deportable and acknowledge that I am not eligible for any
form of relief from removal. I waive my right to rebut and contest the above charges
and my right to file a petition for review of the Final Review Order. I wish to be
deported to [“Mexico” handwritten].” Id. at 65. Three days later, on June 4, 1997,
Turcios was issued a final administrative removal order (FARO) under 8 U.S.C.
§ 1228(b). See id. at 22. Turcios waived the 14-day period of execution of the
FARO and was removed to Mexico on August 1, 2000. See id. at 21, 26, 70.
The record does not reveal the exact date, but at some point between 2000 and
2005, Turcios illegally reentered the United States and resumed using his true
identity, Jose Turcios. See id. at 13. In 2008, Turcios reapplied for his LPR card, at
which time the United States Citizen and Immigration Service (USCIS) matched
Turcios’ fingerprints to those in their database for “Juan Torrez.” Id. at 25–26.
Further investigation revealed Turcios and “Torrez” were the same person.
As a result, USCIS concluded Turcios had “returned to the [United States]
after being removed for conviction of an aggravated felony and would be exposed to
prosecution for violation of 8 U.S.C. § 1326.” Id. at 26 (§ 1326 allows for
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imprisonment under Title 18 for illegal reentry after removal); see also id. at 43. A
border patrol agent interviewed Turcios and confronted him with the “Torrez”
findings. “Turcios then admitted that he had been deported under the name Torrez
and admitted to the crime of assault in the 2nd degree.” Id. at 41. After the
interview, Turcios was held in Department of Homeland Security (DHS) custody
pending removal, at which time he claimed to fear returning to El Salvador and was
interviewed by an asylum officer to determine eligibility for withholding of removal.
2

See 8 C.F.R. § 1208.31(a); ROP at 41–42. The asylum officer determined Turcios
established a credible fear of being returned to El Salvador, and, as a result, Turcios
is now in withholding-only proceedings before an immigration judge in Los Angeles,
California. See ROP at 44.
In November 2012, DHS served Turcios with a Notice of Intent to Reinstate
Prior Order, see 8 U.S.C. § 1231(a)(5) (reinstating prior final removal orders without
requiring new removal proceedings); 8 C.F.R. § 241.8; ROP at 43.

2
Under the statutory and regulatory scheme created by Congress after the
adoption of the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), aliens who have previously been removed and are subject to 8 U.S.C.
§ 1231(a)(5) are precluded from seeking asylum relief. See Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 35 (2006) (noting § 1231(a)(5) “generally forecloses
discretionary relief” excepting withholding of removal). However, the regulations
leave available a withholding-only proceeding before an Immigration Judge (IJ), if
the asylum officer determines the alien expresses a reasonable fear of being returned
to his or her home country. 8 C.F.R. § 1208.31(e); see also R-S-C v. Sessions, 869
F.3d 1176, 1178–79 (10th Cir. 2017) (explaining the background and structure of
withholding-only proceedings for aliens with previous removals).
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On September 20, 2017, Turcios filed a motion to reopen and rescind his prior
FARO. See ROP at 2–18. The filing was more than 20 years after the initial FARO,
17 years after his removal, and five years after the reinstatement order. In his
motion, Turcios argued: (1) as a matter of law, he should never have been subject to
the FARO because he was, at all times, an LPR ineligible for expedited removal; and
(2) his second-degree felony conviction is not an aggravated felony and could not
serve as grounds for removal.
3
See id. at 12.
ICE responded in a letter dated July 18, 2018, stating:
Our office is in receipt of your September 20, 2017, request for
Enforcement and Removal Operations to reopen and rescind the
administrative removal order regarding Mr. Jose Vidal Turcios. After a
thorough review of your request and all available information, our office
respectfully declines to reopen and rescind the administrative removal
order. Thank you for the opportunity to assist you in this matter.

Id. at 1.
This petition for review followed. On August 20, 2018, we issued an order to
show cause why the case should not be dismissed for lack of jurisdiction. Both parties
responded to the show-cause order, and we now consider whether we have jurisdiction.

3
Turcios has since abandoned this argument. Initially, he contended this
court’s decision in United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir.
2008) (concluding the Colorado statute under which he was convicted was not a
crime of violence) obviated the grounds for his removal. However, as Turcios now
concedes, that case was overturned by this court in United States v. Ontiveros, 875
F.3d 533, 538 (10th Cir. 2017) and United States v. McCranie, 889 F.3d 677, 679
(10th Cir. 2018) in the light of United States v. Castleman, 572 U.S. 157 (2014). See
Pet’r Br. at 16 n.4; Resp. Br. at 27–28.
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II. Legal Framework
Generally, removal orders are entered pursuant to 8 U.S.C. § 1229a, which
provides for removal proceedings before an IJ. See Gonzalez-Alarcon v. Macias, 884
F.3d 1266, 1270 (10th Cir. 2018). Expedited removal under 8 U.S.C. § 1228(b) is
reserved for the removal of non-permanent resident aliens who have committed a
crime specified by statute. 8 U.S.C. § 1228(a)(1) (“The Attorney General shall
provide for the availability of special removal proceedings . . . for aliens convicted of
any criminal offense covered in § 1227(a)(2)(A)(iii), (B), (C), or (D).”). If an alien
has been convicted of a crime satisfying § 1227(a)(2)(A)(iii), the agency “may . . .
issue an order of removal” using the expedited procedure if the alien “was not
lawfully admitted for permanent residence.” Id. § 1228(b)(1), (2)(A). Put simply,
“special” expedited removal proceedings may only be instituted against non-LPR
aliens. And, more importantly, the “expedited” part of the process means the
removal happens entirely within the agency; the alien is not entitled to removal
proceedings before an IJ. Turcios was determined removable under § 1228(b)
because he used a false identity and claimed to be a non-LPR alien who had entered
illegally and been convicted of an aggravated felony. See id. §§ 1227(a)(2)(A)(iii),
1228(b)(2)(A).
Congress also included a number of safeguard provisions in § 1228(b) to
ensure aliens subject to expedited removal have opportunities to challenge the
agency’s action. In the NOI issued to the alien to initiate the proceeding, the alien
must be given notice of the charges and the opportunity to inspect the agency’s
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evidence or rebut the charges. See id. § 1228(b)(4)(A), (C). And, the alien must
have 14 days from the issuance of the FARO under § 1228 to petition for judicial
review under 8 U.S.C. § 1252, if he or she so chooses. See id. § 1228(b)(3). This
14-day period to petition the appropriate Circuit Court of Appeals for judicial review
under § 1252 is the only statutory mechanism by which to challenge a FARO outside
of the § 1228(b)(4)(C) opportunity to rebut the charges in the NOI.
There are two regulatory provisions allowing for reopening of previous
decisions by the agency: 8 C.F.R. §§ 1003.2 and 103.5. The provisions have some
overlap; for example, each requires that motions to reopen or reconsider demonstrate
new facts supported by accompanying documentation or evidence. See 8 C.F.R.
§§ 1003.2(c)(1), 103.5(a)(2). The distinction lies in the entity having jurisdiction
over the motion. Under § 1003.2, a party may move in writing for the Board of
Immigration Appeals (BIA) to reopen or reconsider any previous “decision . . . made
by the [BIA].” Id. § 1003.2(a). The decision to grant such a motion is at the
discretion of the BIA. See id.; cf. Kucana v. Holder, 558 U.S. 233 (2010). By
contrast, § 103.5 creates a mechanism to reopen a decision made by the agency but
not by the BIA. See 8 C.F.R. § 103.5(a)(1).
Section 1003.2 is housed within the INA’s accompanying regulations in the
subsection related to the powers of the BIA. It is found in “Chapter 5–Executive
Office of Immigration Review, Department of Justice.” And Part 1003 in particular
pertains to the general provisions for the structure and procedure of the Executive
Office of Immigration Review, the sub-agency responsible for immigration judges,
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the BIA, and traditional removal proceedings. Conversely, § 103.5, housed within
Part 103 “Immigration Benefits; Biometric Requirements; Availability of Records,”
is found within the subpart of Part 103 labeled “Applying for Benefits, Surety Bonds,
and Fees.” Part 103 is a subsection of “Chapter 1–Department of Homeland
Security,” in the subchapter on immigration regulations.
In sum, § 1003.2 allows for reopening of BIA matters, but not of other agency
actions like ICE or USCIS decisions. Administrative removals pursuant to § 1228
happen entirely within ICE. Section 103.5 is the only provision that allows for
reopening of a proceeding conducted by someone other than the BIA. It is for this
reason that Turcios filed his motion pursuant to § 103.5: the BIA never played a role
in his initial § 1228 removal, because statutorily that removal was limited to the
INS/ICE’s determination, so a motion to reopen under § 1003.2 is inapposite.
We now hold the DHS letter is a reviewable final agency action. However, we
lack jurisdiction to review Turcios’ petition as we have no jurisdiction to review
underlying removal orders once they have been reinstated.
III. Finality
The government never explicitly argues to this court why ICE’s denial letter is
not a final judgment from which appellate jurisdiction may properly lie. Rather, the
government simply “assum[ed] without conceding” that it was final. Resp. Br. at 2,
18, 27. Because we have a duty to ascertain our own jurisdiction, we must determine
whether Turcios petitions from a final judgment. We conclude the ICE denial letter
is a final agency action from which an appeal may be taken.
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In Luna-Garcia v. Holder, 777 F.3d 1182 (10th Cir. 2015), this court
concluded reinstatement orders do not become final until all proceedings, including
withholding-only proceedings, are completed. See id. at 1186. There, Luna-Garcia
petitioned for review of the government’s reinstatement of her prior removal order
while her withholding-only proceedings remained pending before an IJ. See id.
at 1183. The government moved to dismiss the petition for lack of jurisdiction,
“arguing that the ongoing reasonable fear proceedings render[ed] the reinstated
removal order nonfinal.” Id. The panel agreed, and granted the government’s motion
to dismiss, in part because the governing regulations do not permit the government to
execute a reinstated removal order until the reasonable fear and withholding of
removal proceedings are complete. See id. at 1183 (citing 8 C.F.R. §§ 208.1(a),
208.5(a) (together providing that an alien shall not be removed before a decision is
rendered on his or her application for withholding of removal)).
However, Luna-Garcia is distinguishable from the instant case, given Turcios
does not petition directly from the reinstatement of his removal order, but rather from
the denial of his motion to reopen the underlying 1997 FARO. Nor does Turcios
challenge the reinstatement order in any way; his motion to reopen is limited to the
underlying removal order. The Supreme Court instructs that for agency action to be
“final,” it must “mark the ‘consummation’ of the agency’s decisionmaking process,”
and determine “rights or obligations” or engender “legal consequences.” Bennett v.
Spear, 520 U.S. 154, 178 (1997). ICE can take no further administrative action on
Turcios’ motion to reopen; the denial letter is an administratively final decision.
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Moreover, whatever decision the IJ may ultimately make regarding Turcios’
eligibility for discretionary withholding of removal from the reinstatement order, that
decision will have no bearing on ICE’s denial of Turcios’ motion to reopen the
underlying FARO. The awarding of discretionary relief from removal and this
appeal from ICE’s denial of Turcios’ motion to reopen his FARO are like parallel
lines: they never intersect or affect one another in any way but continue on their own
trajectory. The determination to award discretionary relief is unrelated to the
underlying FARO or reinstatement itself. As we explained in Luna-Garcia, “[i]f the
alien obtains relief in the reasonable fear proceedings, the reinstated removal order is
not vacated or withdrawn; only its execution is withheld.” 777 F.3d at 1183 (citing
Matter of I-S & C-S, 24 I. & N. Dec. 432, 433–34 (BIA 2008)). Similarly, if the IJ
were to award discretionary relief to Turcios, that would not change the nature of his
underlying FARO or somehow render him eligible to reopen and rescind it. We are
satisfied any pending proceedings before the IJ have no bearing on the validity of
ICE’s denial of Turcios’ motion to reopen his FARO.
Next, we look to the structure of the regulation. Section 103.5(a)(6) states
“[a]ppeal to the [Administrative Appeals Unit (AAU)] from Service decision made as
a result of a motion. A field office decision made as a result of a motion may be
applied to the AAU only if the original decision was appealable to the AAU.”
(emphasis added). A decision would have been directly appealable to the AAU under
§ 103.3.
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Section 103.3 contains the appropriate procedures for “[d]enials, appeals, and
precedent decisions” under that section of the regulatory scheme. It makes clear
“[c]ertain unfavorable decisions on applications, petitions, and other types of cases
may be appealed” either to the BIA or to the AAU. Section 103.3 described the
AAU as “the appellate body which considers cases under the appellate jurisdiction of
the Associate Commissioner.” 8 C.F.R. § 103.3(a)(1)(iv).
The BIA has appellate jurisdiction over:
(1) decisions from IJs in exclusion cases, deportation cases (except voluntary
departure), in rescission of adjustment of status, asylum proceedings,
temporary protected status cases where alien was statutorily ineligible, and
custody of aliens subject to FAROs; and,
(2) decisions involving administrative fines and penalties, petitions filed in
accordance with INA § 204, decisions of adjudicating officials in
disciplinary proceedings involving practitioners and recognized
organizations, and applications for the exercise of discretionary authority in
INA § 212(d)(3).

Id. § 1003.1(b)(1)-(14).
The AAU has appellate jurisdiction over:
4

(1) denial of employment-based visa petitions, see 8 C.F.R. § 204.5(n)(2);
(2) withdrawal of temporary protected status on non-ineligibility grounds, see
id. § 244.14(b)(3), (c);
(3) denial of adjustment to lawful resident status for certain nationals, see id.
§ 245a.4(b)(16);
(4) denial of application for temporary residence, see id. §§ 245a.2(p), 210.2;
(5) termination of temporary resident status, see id. § 210.4(d)(3)(i);
(6) special immigrant status for juvenile alien court-dependent, see id.
§ 204.11(e);

4
The regulations note the appellate jurisdiction for the AAU should be
available at § 103.1(f), but no such sub-section (f) was ever promulgated; the list here
is from a canvass of the regulations themselves. See, e.g., 8 C.F.R. § 103.3(a)(1)(ii)
(stating appellate authority of AAU is designated at § 103.1(f)(3)).
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(7) denial of application for adjustment to LPR status based on bona fide
marriage, see id. § 245.1(c)(8)(viii).
Turcios moved to reopen a FARO, not a benefit decision. His motion cannot
be characterized as anything approaching the categories described under the AAU’s
purview. The AAU would never have had jurisdiction over his original 1997 FARO.
Because an appeal to the AAU from a denial of a motion to reopen may be taken only
where the original decision of the agency was appealable to the AAU, we conclude
Turcios could not have appealed the ICE denial to the AAU.
The regulations also state that where the BIA has jurisdiction, it should hear
appeals from denials under § 103.5. See id. §§ 103.3, 103.5. Section 103.5(a) notes
that motions to reopen should be referred to the “official having jurisdiction” in all
cases “[e]xcept where the Board has jurisdiction.” Id. § 103.5(a)(1)(i). As an
attempt to reopen the 1997 FARO, that would seem to fall under the Board’s
jurisdiction over removals. However, the BIA never played any part in Turcios’
1997 removal in the first instance. FAROs issued where the alien conceded
removability as part of an expedited removal proceeding are never conducted under
the purvey of an IJ. See 8 U.S.C. § 1228(b). Because the alien concedes all the facts
and allegations in the NOI during an expedited removal, the removal procedure takes
place entirely within the agency.
Broadly, the BIA cannot take appeals from cases that were not originally
conducted before an IJ. See 8 C.F.R. § 1003.1(b). The INA does not contemplate
that aliens lie about their identity and eligibility for expedited removal under
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§ 1228(b). We have not found a case where a denial of a motion to reopen a FARO
under § 103.5 was appealable from the agency to the BIA.
There is an earlier line of cases suggesting that where the BIA denies a motion
to reopen, such a denial is a “final removal order” subject to review by the Courts of
Appeals. See Giova v. Rosenberg, 379 U.S. 18 (1964); see also Dastmalchi v. I.N.S.,
660 F.2d 880 (3d Cir. 1981); Luna-Benalcazar v. I.N.S., 414 F.2d 254 (6th Cir.
1969); Schieber v. I.N.S., 347 F.2d 353 (9th Cir. 1965). Here, the denial of the
motion to reopen was not by the BIA but by ICE, given the unique procedural posture
of expedited removal under § 1228(b). However, because there was no
administrative appeal to either the AAU or the BIA that could be taken from ICE’s
denial, nor is there any further action left for the agency to undertake with regards to
this particular motion to reopen (including the pending withholding-only
proceedings), we conclude ICE’s denial letter was a final agency action in this
posture.
IV. Reinstated Removal Orders Are Not Subject to Reopening
Turcios’ FARO was reinstated in November 2012, a full five years before he
filed his § 103.5 motion to reopen or rescind. See ROP at 2 (September 20, 2017).
Once the reinstatement order is filed, we have jurisdiction to review the reinstatement
order itself, but “[w]e do not, however, have jurisdiction to review the underlying
deportation order.” Garcia-Marrufo v. Ashcroft, 376 F.3d 1061, 1063 (10th Cir.
2004) (collecting cases holding same). And, although Turcios seeks to distinguish
this limitation on the grounds that he alleges a “constitutional claim or question of
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law” preserved for judicial review by 8 U.S.C. § 1252(a)(2)(D), we have similarly
rejected that premise in the past.
The parties misunderstand 8 U.S.C. § 1231(a)(5)’s bar. Turcios contends it is
inapplicable because ICE made no reference to it in their denial letter. See Pet’r. Br.
at 21–22. And the government more or less agrees with his characterization by
arguing for an exception to the Chenery doctrine in this instance. See Resp. Br.
at 33–37. Both are incorrect because § 1231(a)(5) is jurisdictional. See Garcia-
Marrufo, 376 F.3d at 1063–64 (collecting cases). “What an agency does or does not
say in response to a motion cannot affect our jurisdiction.” Tapia-Lemos v. Holder,
696 F.3d 687, 689 (7th Cir. 2012). The nature of the agency’s denial below is
inapposite; we have the special obligation to satisfy ourselves of our own
jurisdiction. See Mitchell v. Maurer, 293 U.S. 237, 244 (1934).
Congress stripped courts of jurisdiction to review or reopen a prior order of
removal that has been reinstated. See 8 U.S.C. § 1231(a)(5). Turcios titled his
motion: “Motion to Reopen and Rescind June 4, 1997 Administrative Removal
Order.” ROP at 11. That leaves little doubt in our minds he seeks to reopen the 23-
year old FARO, not the 8-year old reinstatement order. Simply put, Turcios filed his
motion to reopen the 1997 FARO nearly five years after it had been reinstated by the
agency. Even if the agency chose to evaluate his motion on its merits, we have no
statutory authority to entertain the propriety of his motion. See Tapia-Lemos, 696
F.3d at 689 (“What an agency does or does not say in response to a motion cannot
affect our jurisdiction.”). If Turcios had sought to challenge his 1997 FARO prior to
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its reinstatement, the analysis might be different. And, had Turcios framed his
challenge as being to the reinstatement order, not the 1997 FARO, we would have
jurisdiction to entertain a challenge to the reinstatement order. But in this procedural
posture, it is clear § 1231(a)(5) precludes us from reviewing a motion to reopen an
underlying order of removal that has been reinstated by the agency.
Further, the fact that Turcios couches his claim as “constitutional” and a
“question of law,” pursuant to 8 U.S.C. § 1252(a)(2)(D), does not save him. Pet’r.
Br. at 6, 14, 15, 20–21. In Gonzalez-Alarcon, we explained that § 1231(a)(5)
precludes review or reopening of reinstated orders, but the statute expressly allows
for § 1252(a)(2)(D) review of questions of law posed by the reinstatement order. See
884 F.3d at 1271. “However, an individual petition for review of a reinstatement
order cannot challenge the original order of removal, ‘including constitutional claims
or questions of law,’ because such a challenge will be time barred.” Id. (citing
Cordova-Soto v. Holder, 659 F.3d 1029, 1032 (10th Cir. 2011)). Here, Turcios
challenges the legality of the underlying removal order, not the legality of the
reinstatement order.

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VI. CONCLUSION
Therefore, we DISMISS Turcios’ petition for lack of jurisdiction.
5

Entered for the Court

Allison H. Eid
Circuit Judge

5
Both parties make a number of additional jurisdictional arguments, but
because we conclude § 1231(a)(5) bars review of Turcios’ claim, we need not address
them here.

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