Salvador Tapia Lemos v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1386
SALVADOR TAPIA LEMOS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of Orders of the
Department of Homeland Security
SUBMITTED MARCH 4, 2011—DECIDED APRIL 7, 2011
Before EASTERBROOK, Chief Judge, and COFFEY and
ROVNER, Circuit Judges.
EASTERBROOK, Chief Judge. Salvador Tapia Lemos, a
citizen of Mexico, was ordered removed to his native
country in 1997 following his convictions for obstruc-
tion of justice and failing to report an accident (that
is, being a hit-and-run driver). He reentered the United
States without inspection or the Attorney General’s
permission. He was caught in June 2010 and removed
again. He promptly returned, again in secret. When he

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2 No. 11-1386
was caught in October 2010, the Department of Homeland
Security reinstated the 1997 removal order, see 8
U.S.C. §1231(a)(5), and proposed to remove Tapia for a
third time. On December 9, 2010, through counsel,
Tapia asked the Department to stay his removal and
rescind the 1997 order, which, Tapia contended, was
improper. He contends that his convictions were not
for “aggravated felonies.” His counsel cited Matter of
Espinoza-Gonzalez, 22 I.&N. Dec. 889, 897 (BIA 1999), and
Matter of Joseph, 22 I.&N. Dec. 799, 801 (BIA 1999), both
of which post-date the 1997 removal order. Counsel
asked the Department to institute fresh removal pro-
ceedings so that Tapia could present legal arguments
that he had not advanced in 1997.
Believing that stealthy reentry is not a proper means to
contest the validity of a removal order—and that Tapia’s
principal obstacle is his lack of any claim of entitlement
to be in the United States, whether or not his felonies are
“aggravated”—the Department of Homeland Security
denied the motion for a stay of removal and decided
to leave the reinstated removal order in force. Tapia
then filed a petition for review in this court.
Reinstatement of an old removal order is reviewable
in a court of appeals under 8 U.S.C. §1252. Gomez-Chavez
v. Perryman, 308 F.3d 796, 801 (7th Cir. 2002). But our
jurisdiction depends not only on the existence of a
final removal order but also on a timely petition for
review, which must be filed within 30 days of the
removal order. 8 U.S.C. §1252(b)(1). This limit is juris-
dictional, not subject to extension on equitable grounds.

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No. 11-1386 3
Stone v. INS, 514 U.S. 386 (1995). The Attorney General
has asked us to dismiss Tapia’s petition: the order of
removal was reinstated on November 1, 2010, yet the
petition was not filed until February 16, 2011, more
than 100 days later.
Tapia has two replies. The first is that the time does not
start until the alien is served with the order—which,
Tapia maintains, did not occur until some time in
January 2011. There are multiple problems with this
contention. The language of the statute is one. Section
1252(b)(1) says that the 30 days runs from “the date of
the final order of removal.” We wrote in Nowak v. INS,
94 F.3d 390, 392 (7th Cir. 1996), that the statute means
what it says: the time runs from the date on the face of
the order, not on the date it is received. Tapia asks us to
overrule Nowak and to hold, as some other circuits have
done, that the time runs from the order’s receipt rather
than its entry. See Villegas de la Paz v. Holder, 614 F.3d
605, 607–08 (6th Cir. 2010) (collecting cases). We are
skeptical, and not only on linguistic grounds. Stone
analogized a petition for review of a removal order to
a notice of appeal from the decision of a district court.
Both time limits are jurisdictional. See Bowles v. Russell,
551 U.S. 205 (2007). And the time to appeal a district
court’s order begins when the order is entered on the
court’s docket, not when the litigant or counsel receives
a copy by mail. Fed. R. App. P. 4(a)(7). It is hard to see
why §1252(b)(1) should be treated differently.
But we need not give a definitive answer today, be-
cause Tapia received the order on November 1. His

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4 No. 11-1386
signature is on the order; so is his thumbprint. Perhaps
the Department did not “serve” the order in the sense
of mailing an additional copy, but that was not neces-
sary when the order was issued in the alien’s presence.
And whether or not his lawyer enjoyed formal service
by mail, counsel had actual knowledge no later than
December 9, 2010, the date on which counsel filed the
motion to stay removal and vacate the order’s reentry.
A lawyer who has actual knowledge of a removal order
is not well placed to contend that lack of service defers
any need to file a petition for removal. So even if we
assume that counsel acquired knowledge on December 9,
2010, and that time starts with knowledge (as opposed
to the order’s issuance), the petition for removal is still
untimely. It was filed 68 days after December 9, 2010.
Tapia has a second line of argument—that although
denying a motion for a stay, and declining to vacate the
1997 order and start over, is not itself a removal order, cf.
Fonseca-Sanchez v. Gonzales, 484 F.3d 439 (7th Cir. 2007),
it amounts to the denial of a motion to reopen removal
proceedings, and thus is amenable to judicial review. See
Kucana v. Holder, 130 S. Ct. 827 (2010). This order was
entered on January 18, 2011, and Tapia contends that
the petition filed on February 16 thus is timely.
It is hard to see how the order of January 18 could be
classified as one denying reopening. Tapia did not ask
the agency to reopen the decision made in 1997. The
word “reopen” does not appear in his request. Motions
to reopen must be filed within 90 days of the final ad-
ministrative decision, 8 U.S.C. §1229a(c)(7)(C)(i), a time

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No. 11-1386 5
that expired more than a decade ago. What counsel
asked for in December 2010 was (a) a stay of removal;
(b) the rescission of the 2010 decision to use the
1997 order as the basis for another removal; and (c)
the commencement of a new removal proceeding. In
other words, Tapia wanted the agency not to execute an
outstanding order of removal and instead to begin pro-
ceedings that could lead to another (or to none).
Yet administrative decisions “to commence proceedings,
adjudicate cases, or execute removal orders against
any alien under this chapter” are not reviewable.
8 U.S.C. §1252(g). See also Reno v. American-Arab Anti-
Discrimination Committee, 525 U.S. 471 (1999) (explaining
the effect of §1252(g)).
Because Tapia did not file a timely petition to review
the order of November 1, 2010, and the order of January 18,
2011, is not reviewable as either a removal order or the
denial of a motion to reopen the 1997 removal order,
we dismiss the petition for want of jurisdiction.
4-7-11

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