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

(b)(4). The NOI alleged

that Xu was a noncitizen "not lawfully admitted for permanent

residence," see

(b)(2)(A), and that she had been

"convicted of an aggravated felony as defined in . . .

(a)(43)(K)." The NOI went on to state that, for those

reasons, Xu was removable pursuant to

(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

(a)(2)(A)(iii), because she had been convicted of

an "aggravated felony" as defined in

(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

(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

(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

(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

(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

(a)(43)(K) and so neither qualifies

as an "aggravated felony" within the meaning of

(a)(2)(A)(iii).

A FARO is a "final order of removal" within the meaning

of

(a)(1). See Sanabria Morales v. Barr,

(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

(a)(1);

§ 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.,

(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

(b)(4), with

§ 1229a(a)(1), and Xu does not

develop an argument that the government is wrong to contend, as it

does here, that

(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

(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

(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.

(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,

(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 -