                                                                   NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 13-2311
                                         ___________

                                JOSE RODRIGUEZ-CELAYA,
                                 a/k/a Jose Rodriquez-Zelaya,
                                                    Petitioner

                                               v.

                    ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent
                       ____________________________________

                          On Petition for Review of an Order of the
                               Board of Immigration Appeals
                                (Agency No. A029-993-394)
                           Review of a Final Administrative Order
                         ____________________________________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      January 28, 2015

                 Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges

                               (Opinion filed: February 3, 2015)
                                        ___________

                                          OPINION*
                                         ___________

PER CURIAM

         Because we write primarily for the parties, we omit a recounting of the procedural

history, which, if fully told, spans decades. To summarize the most relevant facts, the


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
Department of Homeland Security (“DHS”) entered a final administrative order of

removal against the petitioner, Jose Alexander Rodriguez-Celaya, ruling that he was

removable under (1) 8 U.S.C. § 1101(a)(43)(G) for a May 19, 1994 conviction for

unauthorized use of a motor vehicle in violation of § 31.07 of the Texas Penal Code, and

(2) 8 U.S.C. § 1101(a)(43)(O) for illegal reentry in violation of 8 U.S.C. § 1326.

Rodriguez-Celaya filed a petition for review.

       The Government has filed two motions to dismiss. In the first, submitted at the

outset of the case, the Government argued that Rodriguez-Celaya was an aggravated

felon who did not raise any colorable legal or constitutional issues. Despite the

Government’s argument to the contrary, Rodriguez-Celaya raises questions of law over

which this Court has jurisdiction, such as his claim that he was not convicted of an

aggravated felony. See Pierre v. Att’y Gen. of the U.S., 528 F.3d 180, 184 (3d Cir. 2008)

(en banc) (citing 8 U.S.C. § 1252(a)(2)(C)-(D)); see also Silva-Rengifo v. Att’y Gen. of

the U.S., 473 F.3d 58, 63 (3d Cir. 2007) (citing Kamara v. Att’y Gen. of the U.S., 420

F.3d 202, 210-11 (3d Cir. 2005), for the proposition that the “jurisdictional grant

regarding appeals by aggravated felons extends not just to legal determinations but also

to application of law to facts”). Accordingly, we must deny the first motion to dismiss

the petition for review.

       After we appointed amicus counsel and they ably briefed the issues in response to

our briefing instructions, the Government filed its second motion to dismiss the petition.


constitute binding precedent.
                                             2
It asserted that Rodriguez-Celaya’s removal order had been “cancelled,” such that there

was no longer a final order of removal for us to review. Attached to the motion was a

copy of the removal order with a line through it, “CANCELLED” printed on it above the

line, and the name “C. Herre” and number “6426” printed below the line. Ex. D to the

Second Motion to Dismiss. We requested further information about the “cancellation,”

as well as a response to our earlier briefing instructions, which the Government has now

submitted (and to which amicus counsel has responded).1

         Upon review, we also deny the second motion to dismiss the petition. The

Government contends that an immigration officer, Charles Herre, acting on delegated

authority and the conclusion that Rodriguez-Celaya could not be removed on an

expedited basis, was following the regulation for termination of expedited proceedings

followed by a conversion to proceedings under 8 U.S.C. § 1229a. See 8 C.F.R.

§ 238.1(d)(2)(iii). However, the regulation that the Government cites as the basis for

Herre’s action relates to a deciding Service officer’s authority to terminate and convert

proceedings after an alien submits a timely response to a notice of intent but before a

final order of removal is issued. See 8 C.F.R. § 238.1(d) (describing the determination

whether a final order of removal should issue (1) when no response is submitted or

deportability is conceded or (2) when a response is submitted). By its terms, the

regulation did not give Herre authority to vacate or materially alter the order after its



1
    The Government also filed a motion to file a supplemental appendix, which we grant.

                                              3
issuance. Cf. Thomas v. Att’y Gen. of the U.S., 625 F.3d 134, 140-41 (3d Cir. 2010)

(undertaking the inquiry into whether a later agency decision “vacated or materially

altered” an earlier decision to determine whether there was still a live controversy).

Accordingly, we conclude that the order is extant.

       We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252. See

Khouzam v. Att’y Gen. of the U.S., 549 F.3d 235, 247 (3d Cir. 2008). Upon review and

in light of the concessions by the Government that neither basis of removability is

enforceable in this case, we grant the petition for review and vacate the order of

removal.2

       Both parties agree that Rodriguez-Celaya’s Texas conviction for unauthorized use

of a vehicle cannot be considered an aggravated felony because it does not include an

element of a generic theft offense, “the criminal intent to deprive the owner of rights and

benefits of ownership,” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007).3 See



2
  We do not reach any challenge to earlier orders of removal, as the petition for review
would be untimely as to them. See Stone v. INS, 514 U.S. 386, 405-06 (1995); Nocon v.
INS, 789 F.2d 1028, 1032-33 (3d Cir. 1986). Because of how we resolve this case in
light of the Government’s concessions, we do not reach Rodriguez-Celaya’s other
arguments about why the order is unenforceable. We note, however, that his challenge to
the Government’s use of any 1994 conviction on the basis that it is an impermissible
retroactive application of § 321 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, is foreclosed by Biskupski v. Attorney General of the United
States, 503 F.3d 274, 281-84 (3d Cir. 2007).
3
 We agree with amicus counsel that, in analyzing the issue, the categorical approach
applies without modification in light of the Supreme Court’s guidance in Descamps v.
United States, 133 S. Ct. 2276, 2293 (2013).

                                             4
Brady v. State, No. 14-98-00424-CR, 2001 WL 459719, at *3 (Tex. App. May 3, 2001)

(unpublished); see also Neely v. State, 571 S.W.2d 926, 927-28 (Tex. Crim. App. 1978);

State v. Houth, 845 S.W.2d 853, 869 (Tex. Crim. App. 1992).

       Regarding the other basis for Rodriguez-Celaya’s order of removal, there is no

dispute that he was convicted of illegal reentry in violation of 8 U.S.C. § 1326. United

States v. Rodriguez-Celaya, W.D. Tex. Crim. No. 10-cr-00186 (order entered Jun. 7,

2010). However, such a conviction constitutes an aggravated felony only if the earlier

removal was based on a conviction for an aggravated felony. See 8 U.S.C.

§ 1101(a)(43)(O). As the Government concedes, that conclusion cannot be drawn from

the record.4

       We have considered whether the case was mooted by the Government’s efforts to

cancel the order, its concessions about its unenforceability, and its assertions that DHS

has no intention to bring adverse consequences as a result of an earlier expedited removal

order that concluded that Rodriguez-Celaya had committed an aggravated felony based

on the 1994 conviction. However, on balance, and given the history of the administrative

proceedings in this case, we are not satisfied that the Government has shown that

Rodriguez-Celaya will not be affected by the existing order of removal. Cf. Friends of



4
  The parties dispute which approach, the modified categorical approach or the
circumstance-specific approach, see Nijhawan v. Holder, 557 U.S. 29, 38-43 (2009),
should apply. However, the issue need not be resolved because the scarce evidence in the
record does not satisfy either approach to show that the conviction qualified as an
aggravated felony.

                                             5
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)

(explaining that to determine whether a case is mooted by a party’s voluntary conduct,

“subsequent events [must make] it absolutely clear that the allegedly wrongful behavior

could not be reasonably expected to recur”); cf. also Mayorga v. Att’y Gen. of the U.S.,

757 F.3d 126, 130-31 (3d Cir. 2014) (issuing a ruling that would not have an immediate

impact on removability but that would address “collateral consequences” that could lead

to a “concrete and continuing injury”). New removal proceedings have been initiated by

the Government, and we do not have direct assurances from DHS counsel in that

proceeding about what will or will not be argued.5

      For these reasons, we deny the two motions to dismiss and grant the petition for

review. We vacate the final order of removal. We also grant the motion to file the

supplemental appendix.




5
 We decline amicus counsel’s request for us to rule whether res judicata precludes the
Government from proceeding on the new charges. The issue is not before us on review
of a final order of removal; it is presented on the new notice to appear. See Abdulai v.
Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001) (citing 8 U.S.C. § 1252(a)(1) and stating that
“Congress has granted us power to review only ‘final order[s] of removal.’”).
Accordingly, we cannot decide at this time whether this case can be distinguished from
Duhaney v. Att’y Gen. of the U.S., 621 F.3d 340 (3d Cir. 2010). Although we express no
opinion on the issue, we note that Rodriguez-Celaya is free to raise the matter in the
agency and in this Court at the appropriate times.
                                               6
