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

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

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

Opinion by Judge Bress 2 TAPIA CORA V. GARLAND

SUMMARY *

Immigration

The panel dismissed, for lack of jurisdiction, a petition for review of the Board of Immigration Appeals’ denial of petitioner Silvia Tapia Coria’s motions for remand and administrative closure. An immigration judge found petitioner removable and denied cancellation of removal based on her conviction of a controlled substance offense. On appeal before the Board of Immigration Appeals, petitioner requested remand on the new theory that she was eligible to become a derivative beneficiary of her husband’s pending U visa application. She also sought administrative closure of her proceedings. The Board affirmed the finding of removability and denied her motions for remand and administrative closure due to uncertainty concerning the timing and availability of a U visa. Because petitioner was indisputably removable based on a covered criminal offense, the panel considered whether its jurisdiction to review the Board’s denial of the motions to remand and for administrative closure was limited by the “criminal alien bar,” 8 U.S.C. § 1252(a)(2)(C). Petitioner did not advance any constitutional claim or question of law that would have provided an exception to the criminal jurisdictional bar under 8 U.S.C. § 1252(a)(2)(D). Under this circuit’s “on the merits” exception to the criminal jurisdictional bar, notwithstanding the criminal alien bar, * 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

this court would have jurisdiction when the IJ denies relief on the merits, rather than in reliance on the conviction. However, the panel held that the “on the merits” exception is clearly irreconcilable with the reasoning and theory of Nasrallah v. Barr, 140 S. Ct. 1683 (2020). Under Nasrallah, a “final order of removal” includes 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 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 finding that it is speculative whether and when petitioner Coria will obtain derivative U visa relief.

COUNSEL Christopher J. Stender (argued), Federal Immigration Counselors AZ PC, Phoenix, Arizona, for Petitioner. Yanal H. Yousef (argued) and Kristen H. Blosser, Trial Attorneys; Anthony P. Nicastro, Assistant Director; Brian Boynton, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. 4 TAPIA CORA V. GARLAND

OPINION BRESS, Circuit Judge:

Under the so-called “criminal alien bar,” 8 U.S.C. § 1252(a)(2)(C), “no court shall have jurisdiction to review any final order of removal aga