Summary
The Second Circuit dismissed for lack of jurisdiction a petition challenging the reinstatement of a prior removal order and an immigration judge’s determination that the petitioner could not pursue withholding of removal or CAT relief. The court held that the petition did not present a timely challenge to a judicially reviewable final order of removal under 8 U.S.C. § 1252. The court relied on the Supreme Court’s decisions in Johnson v. Guzman Chavez and Nasrallah v. Barr.
Topics
Practice areas
Questions Presented
- Whether the Second Circuit had jurisdiction under 8 U.S.C. § 1252 to review an immigration judge's decision in withholding-only proceedings when the petition did not timely seek review of a final order of removal.
- Whether an immigration judge's withholding-only decision constitutes a final order of removal or merges into the underlying removal order.
- Whether withholding-only proceedings affect the finality of a prior removal order or DHS's decision to reinstate that order.
- Whether the INA's jurisdictional limitations on review of withholding-only decisions violate the Suspension Clause or due process.
Holdings
- The INA does not permit judicial review of questions arising from withholding-only proceedings unless the petition also permits judicial review of a final order of removal under 8 U.S.C. § 1252. Because Bhaktibhai-Patel's petition did not timely challenge a reviewable final order of removal, the court lacked jurisdiction.
- An immigration judge's decision in withholding-only proceedings is not a final order of removal and does not merge into the underlying removal order because it addresses only whether removal to a particular country is prohibited, not whether the alien is deportable or should be removed from the United States.
- For purposes of judicial review, a prior removal order and DHS's reinstatement decision are final independently of withholding-only proceedings; withholding-only proceedings do not toll or otherwise alter the 30-day jurisdictional period for seeking review.
- The INA's limitation on judicial review of withholding-only decisions does not violate the Suspension Clause or due process as applied to an illegal reentrant who was apprehended immediately after unlawful reentry.
Key quotations
“In light of recent Supreme Court decisions, we DISMISS Bhaktibhai-Patel’s petition for lack of jurisdiction.” (2)
“Decisions made during withholding-only proceedings cannot qualify as orders of removal.” (15)
“Any decision an immigration judge makes during withholding-only proceedings is therefore “not itself a final order of removal” and “does not merge into [an alien’s] final order of removal.”” (17)
“While the government nevertheless offers a process for illegal reentrants to pursue statutory withholding and CAT relief, the INA does not permit us review agency withholding-only decisions unless we do so while reviewing a final order of removal.” (35)
Factual background
Bhaktibhai-Patel, an Indian citizen, had been removed from the United States and illegally reentered in March 2019. DHS reinstated his prior removal order under 8 U.S.C. § 1231(a)(5). He expressed fear of persecution and torture in India based on support for the Congress Party, but an asylum officer and immigration judge determined that he lacked a reasonable fear and could not pursue withholding-only relief. He filed his petition within 30 days of the immigration judge's decision, but more than 30 days after the prior removal order and DHS's reinstatement decision.
Procedural history
Bhaktibhai-Patel was ordered removed in 2010 and again pursuant to a March 25, 2016 removal order. After he illegally reentered the United States in March 2019, DHS reinstated the 2016 order. Following a negative reasonable-fear determination by an asylum officer, an immigration judge affirmed the determination and returned the case to DHS for removal. Bhaktibhai-Patel filed a petition for review on August 19, 2019, more than 30 days after the 2016 removal order and DHS's March 9, 2019 reinstatement decision.