                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

PATRICIA ANN CORDES,                             No. 04-15988
             Petitioner-Appellant,                  D.C. No.
               v.                                CV-03-05580-
MICHAEL B. MUKASEY,* Attorney                     OWW/LJO
                                                Eastern District of
General; TOM RIDGE; NANCY
ALCANTAR, Respondents-Appellees.                    California,
             Defendant-Appellant.                     Fresno

                                                    ORDER

                     Filed February 25, 2008

      Before: Warren J. Ferguson, John T. Noonan, and
            Pamela Ann Rymer, Circuit Judges.

                             Order;
                   Dissent by Judge Ferguson


                              ORDER

   On June 30, 2005, the BIA sua sponte reopened the under-
lying proceeding, vacated its order of removal, and remanded
the matter to the Immigration Judge. This stripped us of juris-
diction to enter our opinion, filed on August 24, 2005. See
Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002).
This case is different from Lolong v. Gonzales, 484 F.3d
1173, 1177 (9th Cir. 2007), because, here, the BIA remanded
to the IJ for “further proceedings” and to enter a “new deci-

  *Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).

                                1585
1586                      CORDES v. MUKASEY
sion” regarding removal, whereas in Lolong, “[t]he BIA
reversed, but rather than remanding Lolong’s case to the IJ for
entry of an order of removal, the BIA itself granted her volun-
tary departure.” The remand for further proceedings is what
caused us to lose jurisdiction. Otherwise, this court and the IJ
would both have been considering the same thing at the same
time: Cordes’s removal. Although we didn’t know it, this hap-
pened before the panel published its opinion. Accordingly, we
now vacate our August 24, 2005 opinion and deny the pend-
ing petition for rehearing en banc as moot.



FERGUSON, Circuit Judge, dissenting:

   Because the majority’s decision to vacate our opinion
directly contradicts Lolong v. Gonzales, I must dissent. 484
F.3d 1173 (2007) (en banc). This Court’s recent unanimous1
en banc opinion in Lolong compels the conclusion that we
retain jurisdiction over this case. Lolong made clear that the
order of deportation entered by the Immigration Judge (“IJ”)
who initially heard Cordes’s case remains in effect, providing
us with a final agency decision to review. Id. at 1178. The
majority distinguishes Lolong based on an inconsequential
factual issue: the BIA’s remand to the IJ. There is no mean-
ingful distinction between Lolong and this case, and the
majority’s attempt to fashion one brings it squarely into con-
flict with the ruling of the en banc court.

   In 2001, an IJ found Cordes removable, but granted discre-
tionary relief from removal under section 212(c) of the Immi-
gration and Nationality Act, 8 U.S.C. § 1182(c) (repealed
1996). In 2003, the BIA explicitly affirmed the finding of
deportability, but reversed the grant of relief.
  1
   While four judges dissented from the majority’s denial of Lolong’s
petition for review on the merits, the panel reached a unanimous agree-
ment on the jurisdictional issue. See 484 F.3d at 1181-82 (Thomas, J., con-
curring in part and dissenting in part).
                       CORDES v. MUKASEY                     1587
   In 2005, the BIA issued an order vacating its 2003 order
“insofar as it entered an order of removal against the respon-
dent.” The BIA acted pursuant to our 2004 decision in
Molina-Camacho v. Ashcroft, which held that the agency
lacked authority to issue final orders of removal. 393 F.3d
937, 941 (9th Cir. 2004). Under Molina-Camacho, the BIA’s
removal order was a “legal nullity,” which meant that there
was no final agency order for this Court to review. Id. at 941-
42. The BIA remanded Cordes’s case to the IJ for “entry of
a new decision consistent with Molina-Camacho and the prior
decision of the Board.”

   In Lolong v. Gonzales, the en banc court explicitly over-
ruled Molina-Camacho, stating, “[N]othing in [the INA] man-
dates the result [the court] reached in Molina-Camacho.” Id.
at 1177. The court explained that in order for an IJ to grant
discretionary relief from removal, the IJ must first determine
that the noncitizen is removable. Id. “[T]his determination by
the IJ constitutes an order of deportation.” Id. If the BIA sub-
sequently reverses the IJ’s grant of relief, it “simply reinstates
that order of removal that has already been entered by the IJ
and that would have taken effect but for the IJ’s subsequent
cancellation of removal.” Id. (internal citations and punctua-
tion omitted). Therefore, the court concluded, “[w]e . . . have
jurisdiction to consider [a] petition for review of the BIA’s
reinstatement of that order.” Id. at 1178 (citing 8 U.S.C.
§ 1101(a)(47)).

   Lolong’s analysis makes clear that a final order of removal
still stands in this case, giving us jurisdiction over Cordes’s
appeal. The IJ’s initial decision constituted a valid removal
order, which was reaffirmed in 2003 when the BIA reversed
the IJ’s grant of relief. Pursuant to Lolong, the BIA’s 2003
decision “eliminated impediments to removal and effected the
original removal order, . . . and the surviving order of removal
was both final and valid and therefore reviewable under 8
U.S.C. 1252(a).” 484 F.3d at 1178 (internal punctuation omit-
ted). The BIA’s 2005 order vacated its 2003 order only “inso-
1588                  CORDES v. MUKASEY
far as it entered an order of removal against the respondent.”
The BIA implicitly left in place the portion of its 2003 order
reversing the IJ’s grant of relief from removal. In essence, the
BIA remanded so that the IJ could issue the removal order,
which the BIA believed it could not do (per Molina-
Camacho) and the IJ had not already done. With the benefit
of Lolong, 484 F.3d at 1177-78, we now understand that the
removal order already existed. This court already had jurisdic-
tion, regardless of whether or not the BIA’s order explicitly
ordered Cordes removed.

   The majority attempts to distinguish Lolong because of a
factual difference: in Lolong, the BIA vacated the IJ’s order
and granted voluntary removal, whereas here, the BIA
vacated its own removal order and remanded to the IJ for fur-
ther proceedings. This distinction has no bearing on the appli-
cability of Lolong’s analysis to this case. As in Lolong, the IJ
in this case issued an order of removal, coupled with a grant
of relief; again, as in Lolong, the BIA reversed the grant of
relief, reinstating the initial removal order.

   While Lolong did not involve a subsequent order by the
BIA vacating its removal order, in this case the BIA’s 2005
order had no effect on the original order of removal entered
by the IJ. The 2005 order vacated the 2003 order only “insofar
as it entered an order of removal against the respondent.” The
2005 order left intact the portions of the 2003 order affirming
the finding of removability and reversing the grant of relief.
The remand to the IJ reflected the BIA’s misunderstanding of
the status of the removal order, caused by our description of
the review process in Molina-Camacho. The majority’s analy-
sis in this order reflects the same misunderstanding, and simi-
larly misdescribes the effects of the BIA’s 2005 order.
Though Molina-Camacho muddied the waters, Lolong made
clear that we have retained jurisdiction over this case through-
out its pendency.

   At no time did we lose jurisdiction over this case, because
at all times there was a final agency decision in place for us
                      CORDES v. MUKASEY                     1589
to review: the IJ’s 2001 order of removal. Lolong is directly
on point, and we may not side-step it on the basis of a distinc-
tion that is ultimately immaterial. I dissent from the majority’s
determination to the contrary.
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