32 F.4th 180
2d Cir.2022Background
- Petitioner Paresh Kumar Bhaktibhai-Patel, an Indian national, had a final removal order entered March 25, 2016, and illegally reentered the U.S. on March 8, 2019.
- On March 9, 2019, DHS issued a Notice of Intent/Decision to reinstate the 2016 removal order under 8 U.S.C. § 1231(a)(5).
- Bhaktibhai-Patel expressed fear of return; an asylum officer concluded no reasonable fear of persecution or torture and referred him to withholding-only proceedings; an IJ affirmed that determination on August 7, 2019.
- Bhaktibhai-Patel filed a petition for review on August 19, 2019 (12 days after the IJ decision but more than 30 days after DHS’s reinstatement).
- The petition sought review of DHS’s reinstatement decision and the IJ’s denial of withholding/CAT relief; the court analyzed whether § 1252’s jurisdictional limits and the 30-day filing deadline permit review.
- The Second Circuit dismissed the petition for lack of jurisdiction: withholding-only decisions are not final orders of removal; the reinstated/prior removal orders were final and the statutory 30-day deadline for review had passed (citing Johnson and Nasrallah).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(b)(9) allows judicial review of withholding-only determinations arising from a reinstated removal order | Bhaktibhai-Patel argued the court may review withholding-only decisions related to his removal | Government argued §1252(b)(9) confines review to final orders of removal and withholding-only decisions are not final orders | Held: §1252(b)(9) bars review of withholding-only decisions unless undertaken with review of a final order of removal; thus no jurisdiction here |
| Whether an IJ’s adverse reasonable-fear/withholding decision is a "final order of removal" under §1101(a)(47) | Bhaktibhai-Patel contended the IJ decision was final and reviewable | Government said such decisions do not conclude deportability or vacate the removal order | Held: IJ withholding-only decisions are not final orders of removal and do not merge into the removal order |
| Whether DHS’s reinstatement decision or the underlying 2016 order remained subject to timely judicial review | Bhaktibhai-Patel argued reinstatement and withholding process justify later filing | Government argued the 2016 order and reinstatement were final before filing and §1252(b)(1)’s 30-day deadline is jurisdictional | Held: Both the 2016 order and DHS’s March 2019 reinstatement were final before the petition; the 30-day filing deadline passed, depriving the court of jurisdiction |
| Whether withholding-only review bars raise constitutional or due-process barriers to preclude §1252 jurisdictional limits | Bhaktibhai-Patel argued denial of judicial review would raise constitutional concerns | Government argued Suspension Clause and due process do not require a judicial forum for withholding-only decisions by illegal reentrants | Held: No constitutional exception; Suspension Clause and due process do not compel judicial review here, especially for aliens who had not effected entry |
Key Cases Cited
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (§1252(b)(9) contemplates reviewing CAT/withholding issues together with a final order of removal)
- Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) (reinstated removal orders and withholding-only proceedings do not affect finality of removal order for §1231/§1252 purposes)
- Thuraissigiam v. United States, 140 S. Ct. 1959 (2020) (Suspension Clause applies to challenges seeking release; unlawful-entry detainees have limited admission-related rights)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (interpretive guidance on §1252 and detention; plurality discussed scope of "arising from")
- Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. 2008) (§1252(b)(1) 30-day filing deadline is jurisdictional)
- Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016) (previous circuit holding that withholding proceedings affected finality, abrogated by Johnson)
- Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir. 2008) (cited precedent treating reinstatement decisions as reviewable though the panel questioned that foundation)
- Webster v. Doe, 486 U.S. 592 (1988) (heightened showing required before inferring congressional intent to preclude judicial review of constitutional claims)