Katherine Ponce-Osorio v. Jeh Johnson, Secretary
824 F.3d 502
5th Cir.2016Background
- Katherine Ponce-Osorio, a citizen of El Salvador, was removed in Feb 2015, illegally reentered Mar 16, 2015, and DHS reinstated her prior expedited removal order on Mar 19, 2015.
- DHS referred her for reasonable-fear screening; an IJ later granted withholding of removal but denied asylum; she appealed to the BIA on asylum eligibility and on a collateral challenge to the original expedited removal.
- On Jan 29, 2016, the BIA dismissed the appeal (citing Ramirez-Mejia) and remanded to the IJ for DHS to complete/update identity, law-enforcement, or security/background checks under 8 C.F.R. § 1003.47(h).
- Within thirty days of the BIA decision, Ponce-Osorio filed a petition for review in this Court challenging DHS’s reinstatement of the expedited removal order.
- DHS moved to dismiss for lack of jurisdiction, arguing the reinstatement order was not a final order subject to immediate review; the court considered whether reinstatement orders become final upon reinstatement or only after completion of reasonable-fear/withholding and remand proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When is a reinstatement order "final" for § 1252 review? | Final once DHS completes the procedural steps to reinstate (so the 30-day clock runs from reinstatement). | Non-final if reasonable-fear/withholding or BIA-ordered remand for background checks remain; finality requires completion of those proceedings. | Reinstatement orders are not always final upon procedural completion; finality is delayed when BIA remands for background/security checks or when reasonable-fear/withholding proceedings remain. |
| Whether the court has jurisdiction over Ponce-Osorio’s petition filed after BIA remand | Ponce-Osorio conceded lack of jurisdiction but sought clarification of the circuit rule on finality. | Secretary argued lack of jurisdiction because the reinstatement order was not final. | Court granted DHS’s motion and dismissed the petition for lack of jurisdiction because the BIA remand rendered the order non-final. |
| Whether collateral attack on underlying expedited removal is permissible here | Argued gross miscarriage of justice due to denial of credible-fear interview. | DHS contended collateral attack is limited and unavailable when reinstatement is non-final. | Court did not reach merits; held jurisdiction lacking because proceedings were ongoing on remand. |
| Proper approach for judicial efficiency and single appeal when remand occurs | Implicitly argued finality at reinstatement would force multiple appeals and inefficiency. | DHS preferred bright-line: final at reinstatement. | Court adopted the Abdisalan bright-line rule: BIA decisions that affirm some claims but remand others for background checks are not final for any claims. |
Key Cases Cited
- Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir.) (asylum eligibility precedent cited by BIA)
- Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir.) (reinstatement orders treated as orders of removal)
- Martinez v. Johnson, 740 F.3d 1040 (5th Cir.) (collateral attacks allowed if exhaustion or gross miscarriage of justice)
- Luna-Garcia v. Holder, 777 F.3d 1182 (10th Cir.) (reinstatement finality only after reasonable-fear/withholding proceedings)
- Abdisalan v. Holder, 774 F.3d 517 (9th Cir.) (BIA decisions remanding for further proceedings are non-final)
- Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir.) (30-day petition for review deadline is jurisdictional)
- Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir.) (reinstatement not final while reasonable-fear/withholding proceedings pending)
- Goromou v. Holder, 721 F.3d 569 (8th Cir.) (supporting non-finality when remand for checks occurs)
- Yusupov v. Attorney General, 518 F.3d 185 (3d Cir.) (case-by-case approach to finality when BIA remands)
- Viracacha v. Mukasey, 518 F.3d 511 (7th Cir.) (exercised jurisdiction despite BIA remand; concerned about trapping aliens between non-final orders)