08-3973-ag Fuller v. Bd. of Immigration Appeals

DENNIS JACOBS, Chief Judge, concurring:

I concur in the dismissal of this appeal, but I do so

on an alternative ground: our jurisdiction depends on the

existence of a final order of removal,

(a)(1), and the Board of Immigration Appeals (BIA) has

vacated the final order on which our jurisdiction depended.

The majority opinion arrives at the same result on the

ground that the appeal is moot (which it is), but I decline

to sign the opinion for two reasons. First, it casts

aspersion on the natural and conclusive ground of decision:

the BIA’s vacatur of the final order, without more. Then,

having sidestepped the obvious, bright-line ground of

decision, the majority prefers a mootness approach that

would sow complexity and uncertainty in future cases. Thus

the majority opinion reserves decision on “whether a

petition for review of a vacated order would present a live

case or controversy if the order granting reconsideration

and vacating the prior order left the reasoning of the prior

order substantially intact.” Maj. Op. at 2. Whether

reasoning is “substantially intact” is a question that is

dicey as well as unnecessary. I see no reason why this

panel or any subsequent panel should autopsy an order that has become defunct.

All this said, the majority opinion does no real

damage. No holding or precedential effect inheres in the

subjective notation that the majority is “not

persuaded . . . that statutory finality is the relevant

jurisdictional inquiry.” Maj. Op. at 4. It therefore

scarcely matters that it is also wrong.

One premise for the majority’s skepticism is that the

2008 Order was final “at the time Fuller filed the instant

petition for review,” Maj. Op. at 4; however, even if the

2008 Order was final at the time Fuller filed her petition,

“[d]efects in subject matter jurisdiction . . . may be

raised at any time during the proceedings.” Fox v. Bd. of

Trustees of State Univ. of N.Y.,

, 140 (2d Cir.

1994); see also Fed. R. Civ. P. 12(h)(3) (“If the court

determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”).

The second premise is that “the government has not

articulated in what way the vacatur affected the finality of

the 2008 Order.” Maj. Op. at 4. But the government has

articulated that vacatur of the 2008 Order rendered it no

longer a “final order of removal” and therefore not a proper

2 subject of jurisdiction under

(a)(1).

Nothing more is needed by way of explanation.

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