80 F.4th 1039
9th Cir.2023Background
- Jose Luis Alonso Juarez, a Mexican national, was the subject of a reinstated 1994 removal order after he reentered the U.S. in 2003; DHS reinstated the order in July 2015.
- Alonso expressed fear of return; an asylum officer conducted a reasonable-fear screening and found no reasonable fear; an IJ affirmed that negative determination in September 2015.
- Alonso filed a petition for review within 30 days of the IJ’s affirmance (but more than 30 days after the 2015 reinstatement).
- The timeliness dispute implicated 8 U.S.C. § 1252(b)(1)’s 30-day filing rule, Ortiz-Alfaro precedent (holding petitions ripen after reasonable-fear proceedings conclude), and recent Supreme Court decisions (Santos‑Zacaria, Nasrallah, Guzman Chavez).
- The Ninth Circuit held § 1252(b)(1) is non‑jurisdictional post‑Santos‑Zacaria, reaffirmed Ortiz‑Alfaro’s ripeness rule (deadline runs from conclusion of reasonable‑fear proceedings), upheld the reasonable‑fear regulations as consistent with the withholding statute, and denied Alonso’s petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 30‑day filing deadline in 8 U.S.C. § 1252(b)(1) is jurisdictional or non‑jurisdictional | Alonso: §1252(b)(1) is non‑jurisdictional and subject to waiver/forfeiture | Government: initially treated it as jurisdictional but conceded non‑jurisdictional after Santos‑Zacaria | Held: §1252(b)(1) is a mandatory, non‑jurisdictional rule (Santos‑Zacaria controls) |
| When the 30‑day clock begins for petitions after a reinstated removal order | Alonso: clock runs from conclusion of reasonable‑fear proceedings (Ortiz‑Alfaro) | Government (and Second Circuit): clock runs from date of reinstatement (Bhaktibhai‑Patel) | Held: clock begins after reasonable‑fear proceedings conclude; Ortiz‑Alfaro remains controlling |
| Whether Nasrallah and Guzman Chavez abrogate Ortiz‑Alfaro | Alonso: Ortiz‑Alfaro remains consistent with Supreme Court precedent | Government: cited Nasrallah/Guzman Chavez to argue earlier deadline from reinstatement | Held: Nasrallah and Guzman Chavez do not clearly conflict with Ortiz‑Alfaro; those cases do not decide the ripeness question here |
| Whether the reasonable‑fear screening regulations conflict with statutory withholding scheme (8 U.S.C. § 1231(b)(3)) | Alonso: mandatory withholding and “trier of fact” language require IJ fact‑finding, not pre‑screening by asylum officers | Government: regs valid and allow IJ de novo review or full withholding proceedings after a positive screen | Held: regulations (8 C.F.R. §§ 208.31, 1208.31) are consistent with the statutory withholding framework (follow Alvarado‑Herrera) |
Key Cases Cited
- Santos‑Zacaria v. Garland, 598 U.S. 411 (2023) (statutory time/exhaustion rules not jurisdictional absent clear congressional statement)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (CAT orders distinct for certain review‑limiting provisions; narrow holding)
- Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) (addressed finality for detention context; did not resolve judicial‑review ripeness under §1252)
- Ortiz‑Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012) (reinstated removal orders become final for §1252(b)(1) purposes only after reasonable‑fear proceedings conclude)
- Alvarado‑Herrera v. Garland, 993 F.3d 1187 (9th Cir. 2021) (reasonable‑fear screening regulations permissible under Chevron)
- Bhaktibhai‑Patel v. Garland, 32 F.4th 180 (2d Cir. 2022) (held clock runs from reinstatement; Ninth Circuit declined to follow)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (panel must follow circuit precedent unless clearly irreconcilable with intervening higher authority)
- Stone v. I.N.S., 514 U.S. 386 (1995) (prior language treating some review provisions as jurisdictional; superseded in part by later authority)
- Magtanong v. Gonzales, 494 F.3d 1190 (9th Cir. 2007) (earlier Ninth Circuit decision treating §1252(b)(1) as jurisdictional)