Alejandro Ortiz-Alfaro v. Eric Holder, Jr.
2012 U.S. App. LEXIS 18121
| 9th Cir. | 2012Background
- Ortiz challenges 8 C.F.R. § 208.31 as precluding asylum applications; government seeks dismissal for lack of jurisdiction due to ongoing reasonable fear proceedings.
- DHS reinstates Ortiz's 2001 removal order under 8 C.F.R. § 241.8 after Ortiz illegally reentered the United States.
- Ortiz underwent a reasonable fear screening; asylum officer found no reasonable fear of persecution or torture.
- Ortiz sought IJ review of the asylum officer’s fear determination; that review has not yet occurred.
- Regulations allow withholding of removal if a reasonable fear is found, but do not authorize asylum relief when a reinstated order remains in effect.
- The central issue is whether the reinstated removal order is a final order for purposes of judicial review while fear/withholding proceedings are ongoing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the reinstated removal order final for review purposes? | Ortiz argues finality should occur only after all relief proceedings complete. | DHS argues the reinstated order is final once reinstated, enabling review only after relief is complete. | No final order for review while fear/withholding proceedings continue. |
| Does ongoing reasonable fear/withholding review strip jurisdiction from the petition for review? | Ortiz asserts jurisdiction exists to challenge the regulations regardless of ongoing proceedings. | DHS contends jurisdiction is limited until fear/withholding is resolved. | Jurisdiction is lacking while reasonable fear/withholding proceedings are ongoing. |
| Would treating the reinstated order as final would impair judicial review guarantees? | Ortiz would be disenfranchised from timely review of fear determinations if finality applied now. | DHS maintains finality would not bar review once proceedings finish. | Finality cannot occur before fear/withholding proceedings are complete to preserve review rights. |
| May Ortiz seek review of the regulations after fear/withholding proceedings conclude? | Ortiz can seek review once administrative determinations are resolved. | DHS permits review only after completion of fear/withholding, not during. | Ortiz may petition for review after fear/withholding proceedings terminate. |
Key Cases Cited
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (reinstatement procedures require non-redundant reinstatement process before removal)
- Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (procedural steps for reinstatement under 8 C.F.R. § 241.8)
- Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009) (jurisdiction limits in review of BIA/IMM orders; reliance on finality rule)
- Galindo-Romero v. Holder, 640 F.3d 873 (9th Cir. 2011) (procedural requirements for reinstating removal orders)
- Li v. Holder, 656 F.3d 898 (9th Cir. 2011) (finality of BIA denial on asylum and remand for background checks; jurisdiction analyzed)
- Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) (finality of removal order when relief is remanded for CAT consideration)
- Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (Suspension Clause considerations; need for judicial review in deportation cases)
- Magtanong v. Gonzales, 494 F.3d 1190 (9th Cir. 2007) (timeliness; thirty-day petition deadline for final removal orders)