94 F.4th 620
7th Cir.2024Background
- Petitioner F.J.A.P. was previously removed to El Salvador (2010), returned there, and was extorted by MS‑13; in 2014 he received a $2,000 demand and a death threat, reported it to police, hid, and later returned to the United States.
- DHS reinstated his prior removal order on January 22, 2020 under 8 U.S.C. § 1231(a)(5); he then entered withholding‑only (CAT) proceedings after expressing fear of return.
- An immigration judge granted CAT withholding (July 7, 2020), crediting petitioner’s testimony and country‑condition evidence; the Board of Immigration Appeals reversed (June 14, 2021), calling the IJ’s findings speculative.
- Petitioner filed a petition for review in the Seventh Circuit on July 13, 2021 — within 30 days of the Board’s CAT decision but ~18 months after the reinstatement decision.
- Central legal disputes: (1) when a reinstated removal order becomes “final” for purposes of the 30‑day petition deadline in 8 U.S.C. § 1252(b)(1); (2) whether that 30‑day deadline is jurisdictional; and (3) whether the BIA applied the correct (clear‑error) standard in reversing the IJ.
Issues
| Issue | Petitioner (F.J.A.P.) | Government (Garland) | Held |
|---|---|---|---|
| When does §1252(b)(1)’s 30‑day filing period begin for reinstated orders tied to withholding/CAT proceedings? | Runs from the conclusion of agency withholding/CAT proceedings (so his July 13, 2021 petition is timely). | Runs from the date of reinstatement (Jan 22, 2020), so petition is untimely. | Court: 30‑day clock runs from conclusion of withholding proceedings; reinstatement + pending CAT means order not final for §1252(b)(1) review until agency withholding proceedings finish. |
| Is §1252(b)(1)’s 30‑day deadline jurisdictional or a non‑jurisdictional claims‑processing rule? | (Implicit) Court should exercise jurisdiction if timely under correct triggering rule. | Argued both positions during briefing; ultimately conceded timeliness but later argued the deadline is nonjurisdictional. | Court: Recognizes Stone v. INS treats the deadline as jurisdictional and, absent overruling by the Supreme Court, continues to apply Stone while noting Santos‑Zacaria cast doubt. It proceeded to assure jurisdiction here because petition was timely under the Court’s interpretation. |
| Did the BIA correctly apply the clear‑error standard in reversing the IJ’s grant of CAT relief? | BIA misapplied clear‑error review and ignored/discounted key testimonial and corroborating evidence; reversal was improper. | BIA concluded IJ relied on unsupported assumptions and hypotheticals. | Court: BIA failed to apply the deferential clear‑error standard (ignored/discounted IJ’s credibility findings and reweighed evidence); GRANTED petition and REMANDED for proper clear‑error review. |
Key Cases Cited
- Stone v. INS, 514 U.S. 386 (holding the INA filing deadline at issue was jurisdictional)
- Nasrallah v. Barr, 140 S. Ct. 1683 (CAT orders are distinct from, and reviewable alongside, final orders of removal)
- Johnson v. Guzman Chavez, 141 S. Ct. 2271 (administrative finality for detention; reinstatement decisions are administratively final for §1231 purposes)
- Santos‑Zacaria v. Garland, 143 S. Ct. 1103 (interpreting exhaustion provision as nonjurisdictional and casting doubt on Stone’s reach)
- Villa v. Barr, 924 F.3d 370 (7th Cir. precedent treating reinstated orders and associated withholding review in context of appellate jurisdiction)
- Eke v. Mukasey, 512 F.3d 372 (7th Cir. earlier practice treating petitions filed within 30 days of Board withholding decisions as timely)
- Estrada‑Martinez v. Lynch, 809 F.3d 886 (clarifying deference/clear‑error review the BIA must give to IJ factual findings)
- Anderson v. Bessemer City, 470 U.S. 564 (standard describing when factual findings are "clearly erroneous")