Dino Jimenez-Morales v. U.S. Attorney General
821 F.3d 1307
| 11th Cir. | 2016Background
- Dino Jimenez-Morales, previously removed in 2011, was removed to Colombia and in Oct. 2014 attempted unauthorized reentry near Hidalgo, TX; DHS reinstated his 2011 removal order under 8 U.S.C. § 1231(a)(5).
- Because he expressed fear of harm if returned, DHS placed him in a reasonable-fear proceeding under 8 C.F.R. § 208.31; while that proceeding was pending, Jimenez-Morales filed a petition for review in this Court (Dec. 2014).
- Before oral argument, an asylum officer and then an immigration judge found Jimenez-Morales lacked a reasonable fear of persecution or torture and denied withholding/CAT relief; no further administrative appeal was available.
- The government moved to dismiss the petition for lack of jurisdiction because the reinstated removal order was not final when the petition was filed (reasonable-fear proceeding was ongoing).
- The Court held that the prematurely filed petition became ripe after the reasonable-fear proceeding concluded adverse to petitioner, and therefore the Court had jurisdiction; it then decided on the merits that § 1231(a)(5) bars asylum and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: whether a petition filed while reasonable-fear proceeding is pending can ripen after later adverse agency action | Jimenez-Morales: premature petition ripens when the reasonable-fear proceeding ends and thus vests jurisdiction | Government: no jurisdiction if no reviewable order existed when petition filed; later events cannot cure defect | Court: petition ripens when the reasonable-fear proceeding concluded adverse to petitioner; jurisdiction exists (denied govt motion to dismiss) |
| Availability of asylum after reinstatement under 8 U.S.C. § 1231(a)(5) | Jimenez-Morales: he is eligible for asylum due to persecution based on imputed political opinion and social-group membership | Government: § 1231(a)(5) makes reinstated removal orders non-reviewable and bars relief under the chapter, so asylum is unavailable | Court: joins Second and Fifth Circuits — § 1231(a)(5) bars asylum for reinstated-removal alien; petition denied |
Key Cases Cited
- Avila v. U.S. Att'y Gen., 560 F.3d 1281 (11th Cir.) (reinstatement of prior removal is appealable)
- Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir.) (reinstated order not final until reasonable-fear proceeding completes)
- Luna-Garcia v. Holder, 777 F.3d 1182 (10th Cir.) (reinstated order cannot be executed until reasonable-fear process ends)
- Moreira v. Mukasey, 509 F.3d 709 (5th Cir.) (premature petition cannot be cured by later agency action when no reviewable order existed at filing)
- Herrera-Molina v. Holder, 597 F.3d 128 (2d Cir.) (premature petition ripens when agency action later renders order final and no prejudice exists)
- Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir.) (§ 1231(a)(5) bars asylum for aliens who illegally reentered and had prior removal)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (dicta noting possibility of withholding despite § 1231(a)(5))
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir.) (asylum is a form of relief from removal)