Luna-Garcia v. Holder
777 F.3d 1182
| 10th Cir. | 2015Background
- Luna-Garcia, a Guatemalan national, had a 2004 removal order reinstated by DHS on July 11, 2014 after she reentered the U.S. unlawfully.
- During reinstatement she expressed fear of return and was referred to an asylum officer for reasonable-fear proceedings; she filed a petition for review on August 11, 2014 before the asylum officer issued a determination.
- The asylum officer initially found no reasonable fear; an Immigration Judge (IJ) later reversed that negative finding and Luna-Garcia proceeded to withholding-of-removal proceedings before the IJ.
- The government moved to dismiss the petition for review for lack of jurisdiction, arguing the reinstated removal order was not final because reasonable-fear/withholding proceedings were ongoing.
- The central legal question was when a reinstated removal order becomes a “final order of removal” for purposes of the 30-day limitations period to file a petition for review under 8 U.S.C. § 1252(b)(1).
- The court concluded that when reasonable-fear proceedings are pursued, the reinstated removal order is not final until those proceedings are complete, and dismissed the petition for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a reinstated removal order is "final" for purposes of § 1252(b)(1) when reasonable-fear proceedings are pending | Luna-Garcia agreed the order was not final given ongoing reasonable-fear proceedings and asked the court to so hold for clarity | Government argued the petition was premature because reasonable-fear/withholding proceedings rendered the reinstated order nonfinal | Court held reinstated removal orders are not final while reasonable-fear proceedings are pending; jurisdiction lacking and petition dismissed |
Key Cases Cited
- Hamilton v. Gonzales, 485 F.3d 564 (10th Cir. 2007) (courts of appeals have jurisdiction only over final orders of removal)
- Duran-Hernandez v. Ashcroft, 348 F.3d 1158 (10th Cir. 2003) (recognized petitions for direct review of reinstatement orders)
- Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. 2005) (described reinstated removal order as the functional equivalent of a final order)
- Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012) (held reinstated removal order not final until reasonable-fear proceedings complete)
- Bennett v. Spear, 520 U.S. 154 (1997) (agency action is final if it consummates decisionmaking and determines rights or obligations)
- Catlin v. United States, 324 U.S. 229 (1945) (final decision ends litigation on the merits and leaves nothing for the court to do but execute the judgment)