73 F.4th 300
5th Cir.2023Background
- Samuel De Jesus Argueta-Hernandez, a Salvadoran national, had a 2007 removal order reinstated after illegal reentry in 2019.
- After reinstatement he claimed fear of return due to MS-13 threats and sought withholding of removal and CAT protection.
- An Immigration Judge denied relief and the Board of Immigration Appeals (BIA) dismissed his appeal on April 27, 2022.
- Argueta-Hernandez filed a petition for review on May 26, 2022—within 30 days of the BIA denial but more than 30 days after the 2019 reinstatement.
- The jurisdictional question: whether the BIA’s denial is a “final order of removal” and whether the reinstatement order became final only after withholding/CAT proceedings concluded.
- The Fifth Circuit concluded the BIA denial is not a removal order and the reinstatement order became final upon reinstatement, so the petition was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of withholding/CAT relief is a "final order of removal" | The BIA denial was the operative order from which to seek review | Denial of withholding/CAT is not an order of removal because it does not conclude deportability | Denial is not a final order of removal; it addresses where an alien may be removed, not whether they are removable |
| Whether a reinstatement order becomes final only after withholding/CAT proceedings conclude | Reinstatement isn't final while withholding-only proceedings remain pending, so the 30-day clock starts after those proceedings | Reinstatement is an administratively final removal order upon reinstatement; withholding-only proceedings don’t delay finality | Supreme Court precedent controls: reinstatement became final upon reinstatement; withholding-only proceedings do not affect finality; petition was untimely |
Key Cases Cited
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (orders denying withholding/CAT relief do not merge into or affect the validity of an order of removal)
- Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) (withholding-only proceedings do not render an administratively final reinstated removal order nonfinal)
- Stone v. INS, 514 U.S. 386 (1995) (30-day filing deadline for petitions for review is mandatory and jurisdictional)
- Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir. 2016) (earlier Fifth Circuit rule that reinstatement is not final until withholding-only proceedings conclude)
- Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir. 2002) (reinstatement orders classified as orders of removal)
- Luna-Garcia v. Holder, 777 F.3d 1182 (10th Cir. 2015) (definition of finality for reinstatement orders tied to completion of ancillary proceedings)
- In re Bonvillian Marine Serv., 19 F.4th 787 (5th Cir. 2021) (noting that Ponce-Osorio’s reasoning has been called into question by subsequent Supreme Court decisions)