UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SILVIA TAPIA CORIA, No. 22-970 Agency No. Petitioner, A092-680-641 v. ORDER AND MERRICK B. GARLAND, Attorney AMENDED General, OPINION

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted October 20, 2023 Phoenix, Arizona

Filed March 19, 2024 Amended August 16, 2024

Before: Sandra S. Ikuta, Bridget S. Bade, and Daniel A. Bress, Circuit Judges.

Order; Opinion by Judge Bress 2 TAPIA CORA V. GARLAND

SUMMARY *

Immigration

The panel denied a petition for rehearing en banc and issued an amended opinion dismissing, for lack of jurisdiction, a petition for review of the Board of Immigration Appeals’ denial of petitioner’s motions for remand and administrative closure. In the original opinion, the panel held that this court’s “on the merits” exception to the criminal jurisdiction bar at 8 U.S.C. § 1252(a)(2)(C) is clearly irreconcilable with the reasoning and theory of Nasrallah v. Barr, 140 S. Ct. 1683 (2020), which defined a “final order of removal” to include all IJ or BIA rulings that “merge into final orders of removal,” meaning all matters on which the validity of the final order is contingent, and held that judicial review does not extend to factual challenges to the final removal order. Because petitioner’s motions to remand and for administrative closure merged with her final order of removal, and it was undisputed that she had a qualifying criminal conviction, the panel held that it lacked jurisdiction to review petitioner’s challenge to the Board’s factual findings in connection with the denial of relief. In the amended opinion, the panel added a footnote explaining that the panel’s decision did not disturb the result in Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. 2003), which stands for the proposition that for the criminal alien bar to apply, there must be an agency “determination that the ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TAPIA CORA V. GARLAND 3

alien is removable” based on a covered conviction. The panel had no occasion in this case to decide whether Nasrallah or other intervening law changes this threshold requirement in Alvarez-Santos, which therefore remains intact.

COUNSEL Christopher J. Stender (argued), Federal Immigration Counselors AZ PC, Phoenix, Arizona; David J. Zimmer and Gerard J. Cedrone, Goodwin Procter LLP, Boston, Massachusetts; Rohiniyurie Tashima, Goodwin Procter LLP, Washington, D.C.; for Petitioner. Yanal H. Yousef (argued) and Kristen H. Blosser, Trial Attorneys; Anthony P. Nicastro, Assistant Director; Civil Division/ Office of Immigration Litigation; Brian Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Respondent.

ORDER

The opinion filed on March 19, 2024, and appearing at 96 F.4th 1192, is amended as follows:

• At Slip Op. page 19, line 18 [96 F.4th at 1202], change “genesis” to “precursor.” • At Slip Op. page 23, footnote 4 [96 F.4th at 1204 n.4], remove “Alvarez-Santos, 332 F.3d at 1250.” • At Slip Op. page 28, line 16 [96 F.4th at 1206], remove “Alvarez-Santos, 332 F.3d at 1250–53.” 4 TAPIA CORA V. GARLAND

• At Slip Op. page 31, line 32 [96 F.4th at 1208], add the following footnote:

We note that our decision today does not disturb the result in Alvarez