PARESH KUMAR BHAKTIBHAI-PATEL, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
No. 19-2565
United States Court of Appeals FOR THE SECOND CIRCUIT
DECIDED: APRIL 27, 2022
AUGUST TERM 2020. ARGUED: DECEMBER 18, 2020
Before: LIVINGSTON, Chief Judge, and PARK and MENASHI, Circuit Judges.
Paresh Kumar Bhaktibhai-Patel petitions for review of an immigration officer‘s decision to reinstate a prior order of removal against Bhaktibhai-Patel and for review of an immigration judge‘s subsequent decision that Bhaktibhai-Patel does not qualify to pursue claims for withholding of removal to India. In light of recent Supreme Court decisions, we DISMISS Bhaktibhai-Patel‘s petition for lack of jurisdiction. Bhaktibhai-Patel‘s petition raises “questions of law and fact ... arising from” efforts “to remove [him] from the United States” but the petition does not, as it must, present us with a judicially reviewable “final order [of removal].”
ANNE E. DOEBLER, Buffalo, New York, for Petitioner.
YANAL H. YOUSEF, Trial Attorney, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, Civil Division, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, on the brief), United States Department of Justice, for Respondent.
In the Immigration and Nationality Act (“INA“), Congress granted Article III courts limited jurisdiction to review the Executive Branch‘s decisions in immigration cases. “Judicial review of all questions of law and fact arising from any action taken or proceeding brought to remove an alien from the United States under” the INA is “available only in judicial review of a final order [of removal].”
Petitioner Paresh Kumar Bhaktibhai-Patel, a citizen of India, was ordered removed from the United States in 2010 and then again on March 25, 2016. Three years later, on March 8, 2019, Bhaktibhai-Patel illegally reentered the country. The next day, a Department of Homeland Security (“DHS“) immigration officer reinstated the 2016 removal order, thereby subjecting Bhaktibhai-Patel to removal from the United States pursuant to
Bhaktibhai-Patel then filed the petition for review that we consider in this case, challenging the decisions to reinstate his 2016 order and to find him ineligible for withholding of removal. This petition thus presents “questions of law and fact ... arising from an[] action taken or proceeding brought to remove an alien from the United States.”
BACKGROUND
I
In 1996, Congress enacted an expedited procedure applicable to aliens who illegally reenter the United States after having been removed pursuant to an order of removal. That legislation provides that “[i]f the Attorney General1 finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed.” Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA“) of 1996, Pub. L. No. 104-208, div. C, § 305(a)(3), 110 Stat. 3009, 3009-599 (codified at
The process for reinstating an illegal reentrant‘s prior order of removal is simple enough. “In short, the agency obtains the alien‘s prior order of removal, confirms the alien‘s identity, determines whether the alien‘s reentry was unauthorized, provides the alien with written notice of its determination, allows the alien to contest that determination, and then reinstates the order.” Johnson, 141 S. Ct. at 2282 (citing
To ensure compliance with those treaties, the Attorney General implemented a “screening process” for illegal reentrants that “allow[s] for the fair and expeditious resolution” of statutory withholding and CAT relief issues “without unduly disrupting the streamlined removal processes applicable to” such reentrants. Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8479 (Feb. 19, 1999). The screening process works as follows: If an alien subject to a reinstated order of removal under
II
Petitioner Bhaktibhai-Patel, a citizen of India, was removed from the United States in 2010 and again in 2017, the latter time pursuant to a removal order entered on March 25, 2016. He illegally reentered the United States on March 8, 2019, and was apprehended the same day.5 The next day, March 9, a DHS immigration officer issued a “Notice of Intent/Decision to Reinstate” his 2016 order of removal, which designated India as the country of removal. Cert. Admin. R. 125.
Bhaktibhai-Patel expressed a fear of persecution and torture in India based on his political views, triggering the protocol
The asylum officer asked Bhaktibhai-Patel if he could relocate within India to a place where his assailants would not find him or where the Congress Party had political control. Bhaktibhai-Patel answered in the negative. He explained that his assailants told him they would find and kill him wherever he goes in India. When pressed on how they would locate him, Bhaktibhai-Patel asserted that they have his “bio data” and would use the BJP‘s “big,” country-wide “network” to find him. Id. at 136. However, Bhaktibhai-Patel admitted that he was not personally acquainted with his assailants, and he could not explain how his assailants obtained his “bio data.” Id. at 132, 136. When pressed about why he would not be safe in an Indian state under Congress Party control, Bhaktibhai-Patel said “it is under the control of BJP, there is no Congress party over there, the country is ruled by BJP.” Id. at 137.
The asylum officer determined that, while Bhaktibhai-Patel‘s testimony was generally credible, Bhaktibhai-Patel did not have a reasonable fear of persecution or torture in India. In his filings, the asylum officer appeared to assert two alternative grounds for this determination. First, the asylum officer wrote that, while Bhaktibhai-Patel “established a reasonable possibility of showing past persecution on account of his political opinion, the evidence establish[ed] ... [that] he is able to relocate within India in order to avoid future persecution.” Id. at 143. The officer explained that “[t]he record does not show that the people who attacked [Bhaktibhai-Patel] would be motivated and able to harm him in another part of India” and that Bhaktibhai-Patel failed to “establish” otherwise because he “could not affirm that the people who attacked him knew his identity.” Id. The officer also cited evidence that the BJP does not control every state in India, which showed that Bhaktibhai-Patel “could seek protection outside of his state” and rebutted Bhaktibhai-Patel‘s unsupported assertion that the “BJP control[s] the [entire] area and [the] Congress party does not exist.” Id. at 143-44; see also Singh v. Garland, 11 F.4th 106, 117 (2d Cir. 2021) (upholding a similar agency determination about internal relocation).
Second, the immigration officer observed that Bhaktibhai-Patel “did not provide evidence that the four individuals who threatened him were employed by or associated with the government” and that his “testimony that the police refused to take a report against the BJP is insufficient in itself to establish that the police would let the BJP attack the applicant.” Cert. Admin. R. 143. This reasoning, which focused on the lack of government responsibility
Bhaktibhai-Patel sought review of the asylum officer‘s negative reasonable fear determination and received a hearing before an immigration judge on August 7, 2019. The immigration judge recounted the asylum officer‘s reasoning that Bhaktibhai-Patel “could relocate to a part of [India] where he is not likely to be tortured.” Cert. Admin. R. 8. Additionally, the immigration judge noted that there was “no evidence in the record” that Bhaktibhai-Patel‘s assailants “were members of the government but rather simply that they were members of an opposition political party.” Id. at 46.6 Accordingly, the immigration judge concurred in the asylum officer‘s negative reasonable fear determination and “returned” the case “to DHS for removal of [Bhaktibhai-Patel].” Cert. Admin. R. 9. Bhaktibhai-Patel then filed a petition for review on August 19, 2019—twelve days after the immigration judge precluded him from pursuing statutory withholding and CAT relief, but over five months after DHS reinstated his 2016 order of removal.
DISCUSSION
Although both Bhaktibhai-Patel and the government insist we have jurisdiction to review this petition, “federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011); see also Vera v. Banco Bilbao Vizcaya Argentaria, S.A., 946 F.3d 120, 135 (2d Cir. 2019) (“[E]ven if no party raises the issue, courts have an obligation to consider subject matter jurisdiction sua sponte.“).7 Carrying out this duty, we conclude that the INA deprives us of jurisdiction to review Bhaktibhai-Patel‘s petition.8 Our holding forecloses
I
As relevant here, the INA‘s jurisdictional rules provide as follows: “Judicial review of a final order of removal” proceeds subject to the “requirements” “provided in subsection (b)” of
Next, the concluding paragraph of subsection (b) directs that “judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.”
While § 1252 explains that a “final order of removal” is the key to judicial review in the context of “action[s] taken or proceeding[s] brought to remove an alien from the United States,” that section does not define the term “final order of removal.”
As for when an order of removal “become[s] final,” that occurs “upon the earlier of—(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.”
II
Applying § 1252 to this case, we dismiss Bhaktibhai-Patel‘s petition for review for lack of jurisdiction.
A
Bhaktibhai-Patel petitioned for review of DHS‘s decision to reinstate his 2016 order of removal and the immigration judge‘s decision that he may not pursue claims for statutory withholding or CAT relief. By any reasonable interpretation, this petition asks us to review “questions of law and
The petition presents three possibilities for what might—but ultimately does not—constitute a final order of removal that we may review: (1) Bhaktibhai-Patel‘s March 2016 order of removal, (2) DHS‘s March 2019 decision to reinstate that order of removal, and (3) the immigration judge‘s August 2019 decision denying Bhaktibhai-Patel‘s request to pursue statutory withholding and CAT relief. We can easily dispense with the third option. Decisions made during withholding-only proceedings cannot qualify as orders of removal. Those decisions—which concern an alien‘s eligibility for statutory withholding and CAT relief—do not determine whether “the alien is deportable or order[] deportation.”
Eliminating the immigration judge‘s withholding decision leaves Bhaktibhai-Patel‘s reinstated 2016 order of removal and DHS‘s March 2019 reinstatement decision as the only possible bases for our jurisdiction. The 2016 removal order obviously qualifies as an order of removal. As for DHS‘s March 2019 reinstatement decision, our precedents suggest, without explanation, that such a decision represents a final order of removal under § 1252. See Garcia-Villeda v. Mukasey, 531 F.3d 141, 150 (2d Cir. 2008) (“[An] alien may also challenge the reinstatement order in a court of appeals.
An order of removal “become[s] final upon the earlier of—(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.”
We turn then to DHS‘s March 2019 reinstatement decision. The definition of finality in
In this case, DHS reinstated Bhaktibhai-Patel‘s order of removal on March 9, 2019. An immigration officer concluded that Bhaktibhai-Patel was “removable as an alien who has illegally reentered the United States after having been previously removed” and was therefore “subject to removal by reinstatement of the prior order.” Cert. Admin. R. 65. Bhaktibhai-Patel acknowledged that determination and was afforded an opportunity to contest the determination. Id. A second immigration officer then issued a “Decision, Order, and Officer‘s Certification” that, “[h]aving reviewed all available evidence, the administrative file and any statements made or submitted in rebuttal, I have determined that [Bhaktibhai-Patel] is subject to removal through reinstatement of the prior order, in accordance with [8 U.S.C. § 1231(a)(5)].” Id. Therefore, DHS‘s reinstatement decision became final on the day of that decision, order, and certification—March 9, 2019. Yet Bhaktibhai-Patel filed his petition for review on August 19, 2019, well past the 30-day jurisdictional deadline in
B
When DHS reinstated his prior order of removal, Bhaktibhai-Patel expressed fear of persecution and torture if removed to India. But that claim, and the withholding-only proceedings it triggered, do not affect the finality of Bhaktibhai-Patel‘s 2016 order of removal or of DHS‘s reinstatement decision. As the Supreme Court has explained, even if an illegal reentrant obtains relief through withholding-only proceedings, “[t]he [reinstated] removal order is not vacated or otherwise set aside ... and DHS retains the authority to remove the alien to any other country authorized by the statute.” Johnson, 141 S. Ct. at 2285. The same reasoning applies to DHS‘s reinstatement decision. The validity of that decision depends only on a determination that the alien “ha[d] been subject to a prior order of removal,” was “previously removed” pursuant to an order of removal, and “unlawfully reentered the United States.”
Our decision stating otherwise in Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016), has been abrogated by the decision of the Supreme Court in Johnson. We held in Guerra that an illegal reentrant‘s reinstated removal order is not “administratively final” during the pendency of withholding-only proceedings and that the mandatory detention provisions of
Furthermore, the logic of Johnson applies with equal force to the question of finality under
In reaching the opposite conclusion in a case predating Johnson and Nasrallah, the Tenth Circuit reasoned that an illegal reentrant‘s “reinstated removal order is not final in the usual legal sense” until the withholding-only proceedings conclude “because [the removal order] cannot be executed” until that time. Luna-Garcia v. Holder, 777 F.3d 1182, 1185 (10th Cir. 2015) (emphasis added) (citing Catlin v. United States, 324 U.S. 229, 233 (1945), and Webster‘s Third New International Dictionary 851 (1993)); see also Ponce-Osorio v. Johnson, 824 F.3d 502, 505-06 (5th Cir. 2016) (adopting this reasoning); Jimenez-Morales v. U.S. Att‘y Gen., 821 F.3d 1307, 1308 (11th Cir. 2016) (same). Yet by searching for a definition of finality outside the INA, the Tenth Circuit‘s decision ignores the clear implication of the INA‘s specific definition of finality, which ties finality to whether the agency‘s review of the removal order is complete. See
In sum, in his petition challenging DHS‘s decision to reinstate his 2016 order
III
One might observe that our opinion produces a seemingly odd result, in that we recognize that an illegal reentrant may obtain judicial review of DHS‘s decision to reinstate a prior order of removal, see Garcia-Villeda, 531 F.3d at 150, but simultaneously hold that a reentrant generally may not obtain judicial review of subsequent withholding-only proceedings.21 This oddity, however, results from questionable precedent that implicitly holds that a reinstatement decision itself qualifies as a final order of removal under
That holding, which we have never explained, rests on an unstable foundation. Although DHS‘s reinstatement decision arguably “order[s] deportation” and therefore falls within the INA‘s definition of an order of removal, that decision may never “become final” because it cannot be appealed to the BIA.
Some circuit courts have reasoned that
IV
We hold today that the INA does not permit judicial review of illegal reentrants’ withholding-only decisions in some cases. We so hold despite the “strong presumption favoring judicial review of administrative action.” Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021). “The presumption favoring judicial review of administrative action is just that—a presumption.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984). The presumption applies only in the presence of “ambiguity” and recedes when a “statute‘s language or structure forecloses judicial review.” Salinas, 141 S. Ct. at 698 (internal quotation marks omitted). Here, as we have explained, the language and structure of
To be sure, when Congress seeks to “preclude judicial review of constitutional claims,” we “require [a] heightened showing” of clear congressional intent “in part to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Webster v. Doe, 486 U.S. 592, 603 (1988). This consideration does not undermine our reading of the statute because an illegal reentrant challenging a withholding-only decision does not have a “colorable constitutional claim.” Webster, 486 U.S. at 603.
The Ninth Circuit strained to interpret
Illegal reentrants also lack colorable due process claims in the context of withholding-only decisions. To be sure, the Supreme Court has generally held that “the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993) (citing Yamataya v. Fisher (Japanese Immigrant Case), 189 U.S. 86, 100-01 (1903)).24 The procedural due process analysis proceeds in two steps. First, “a plaintiff must show a deprivation of a protected life, liberty or property interest.” Bross v. Turnage, 889 F.2d 1256, 1257 (2d Cir. 1989). Second, we “look at the factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976),” to determine whether the procedure provided is constitutionally sufficient. Abdullah v. INS, 184 F.3d 158, 164 (2d Cir. 1999).
An alien‘s due process claim arising from removal proceedings—like all due process claims—must relate to an alleged deprivation of a “liberty or property interest.” Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir. 2008); see also
Withholding-only proceedings involve mandatory relief. But illegal reentrants still must identify a liberty or property interest protected by due process before they can claim that the procedures provided in such a proceeding are constitutionally deficient. Illegal reentrants possess no “right to be and remain in the United States.” Japanese Immigrant Case, 189 U.S. at 101. They have already been ordered removed. Furthermore, we doubt that illegal reentrants possess a protected interest in statutory withholding or CAT relief. A right to such relief is not “enumerated in the Bill of Rights.” Obergefell v. Hodges, 576 U.S. 644, 663 (2015). Nor can such relief be said to have “always been [an aspect] of the liberty protected by the Due Process Clause,” Foucha v. Louisiana, 504 U.S. 71, 80 (1992), considering
We have previously said that a protectable interest cannot be based on the United Nations Protocol Relating to the Status of Refugees or the CAT. See Yuen Jin, 538 F.3d at 159 (“[N]either the Protocol nor the CAT are self-executing treaties. They therefore do not create private rights that petitioners can enforce in this court beyond those contained in their implementing statutes and regulations (i.e., the INA).“). We presume that “international agreements, even those directly benefiting private persons, generally do not create private rights,” Medellin v. Texas, 552 U.S. 491, 506 n.3 (2008), and in any event “clear congressional action supersedes prior treaty obligations to the extent they are inconsistent,” Guaylupo-Moya v. Gonzales, 423 F.3d 121, 136 (2d Cir. 2005). The government follows withholding-only proceedings for illegal reentrants pursuant to its understanding of its treaty obligations, but that procedure cannot give illegal reentrants a right that Congress has specifically denied. See
Although “we have suggested in dicta that an alien‘s interest” in statutory withholding “may well enjoy some due process protection not available to an alien claiming only admission,” Yuen Jin, 538 F.3d at 157 (citing Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984), and Yiu Sing Chun v. Sava, 708 F.2d 869, 877 (2d Cir. 1983)), those dicta do not apply to illegal reentrants. In these cases, we recognized that “constitutionally protected liberty or property interests may have their source in positive rules of law creating a substantive entitlement to a particular government benefit.” Augustin, 735 F.2d at 37; see also Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“[A] person‘s liberty is equally protected, even when the liberty itself is a statutory creation of the State.“). We then suggested that “8 U.S.C. § 1253(h),” the original statutory withholding provision, “creates a substantive entitlement to relief from deportation or return to” a country in which an alien will face persecution. Augustin, 735 F.2d at 37; see also Yiu Sing Chun, 708 F.2d at 877 (stating that “a refugee who has a well-founded fear of persecution in his homeland has a protectable interest recognized by ... statute“). But while the INA might create a substantive entitlement to statutory withholding and CAT relief for aliens in general, it explicitly denies any such entitlement to illegal reentrants, specifying that illegal reentrants are “not eligible and may not apply for any relief” the INA would otherwise provide.
Even if illegal reentrants had a protected interest in withholding-only relief, however, the procedures provided under the applicable regulations are “constitutionally
withholding-only relief receive at least two levels of review—from an asylum officer and an immigration judge—within the Executive Branch.
Finally, we note that Congress‘s decision to preclude judicial review for withholding-only decisions raises no due process concerns with respect to illegal reentrants, such as Bhaktibhai-Patel, who have failed to effect an entry into the country. “While aliens who have established connections in this country have due process rights in deportation proceedings ... Congress is entitled to set the conditions for an alien‘s lawful entry into this country.” Thuraissigiam, 140 S. Ct. at 1963-64. “[A]s a result,” aliens who have not “effected an entry” into the United States have “only those rights regarding admission that Congress has provided by statute” and “cannot claim any greater rights under the Due Process Clause.” Id. at 1964, 1982-83.
The Supreme Court has explained that “an alien who is detained shortly after unlawful entry cannot be said to have ‘effected an entry.‘” Id. at 1982. Bhaktibhai-Patel was apprehended the same day he unlawfully reentered the country.27 Aliens such as Bhaktibhai-Patel do not “effect[] an entry” into the United States and therefore “ha[ve] only those rights regarding admission that Congress has provided by statute.” Thuraissigiam, 140 S. Ct. at 1982-83. And if those rights do not include access to judicial review for withholding-only proceedings, such aliens “cannot claim any greater rights under the Due Process Clause.” Id. at 1964.
CONCLUSION
Illegal reentrants are “not eligible and may not apply for any relief under” the INA and “shall be removed under the prior order at any time after the reentry.”