DINO JIMENEZ-MORALES v. U.S. ATTORNEY GENERAL
No. 14-15359
United States Court of Appeals for the Eleventh Circuit
May 2, 2016
Agency No. A093-106-814
[PUBLISH]
Petition for Review of a Decision of the Department of Homeland Security
(May 2, 2016)
Before MARCUS, JORDAN, and WALKER,* Circuit Judges.
JORDAN, Circuit Judge:
In October of 2014, after having been removed to Colombia, Dino Jimenez-Morales
Prior to oral argument in this case, an asylum officer found that Mr. Jimenez-Morales did not have a reasonable fear of persecution or torture if he were removed to Colombia. See Supp. A.R. 44-47. An immigration judge, following a hearing, ratified the asylum officer‘s finding. The immigration judge found that Mr. Jimenez-Morales did not have a reasonable fear of persecution or torture, that he had no basis for withholding of removal, and that he could not obtain relief under the Convention Against Torture,
I
We first address whether we have jurisdiction to consider the petition. When Mr. Jimenez-Morales filed the petition for review in December of 2014, DHS’ reinstatement of the 2011 order of removal was not final because the reasonable fear proceeding was ongoing. That presents a jurisdictional problem because the Immigration and Nationality Act vests circuit courts with jurisdiction to review only “final” orders of removal. See
We agree with the Ninth and Tenth Circuits that, where an alien pursues a reasonable fear proceeding following DHS’ initial reinstatement of a prior order of removal, the reinstated removal order does not become final until the reasonable fear proceeding is completed. See Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012); Luna-Garcia v. Holder, 777 F.3d 1182, 1186 (10th Cir. 2015). This is because the reinstated removal order cannot be executed (i.e., carried out) until the reasonable fear proceeding is over. See Luna-Garcia, 777 F.3d at 1185. The government is therefore correct that we did not have jurisdiction when Mr. Jimenez-Morales filed his petition for review.
But that is not the end of the matter. As noted, before we heard oral argument, an immigration judge found that Mr. Jimenez-Morales did not have a reasonable fear of persecution or torture, had no basis for withholding of removal, and could not obtain relief under the Convention Against Torture. With that decision, the reasonable fear proceeding came to an end, as no further administrative review was available to Mr. Jimenez-Morales. So the question we must address is whether the conclusion of the reasonable fear proceeding made Mr. Jimenez-Morales’ premature 2014 petition for review ripen into one that gave us jurisdiction. The government says no, while Mr. Jimenez-Morales says yes. Exercising plenary review on this jurisdictional question, see Alexis v. U.S. Att‘y Gen., 431 F.3d 1291, 1293 (11th Cir. 2005), we agree with Mr. Jimenez-Morales.
The government‘s position finds support in decisions of the Fifth and Sixth Circuits. Those Circuits have ruled that if there is no judicially reviewable order at the time a petition for review is filed, jurisdiction
The Second and Third Circuits, however, have come to a different conclusion. They generally hold that if a petition for review is premature when filed, the petition becomes ripe (and jurisdiction vests) when subsequent agency action renders the initial ruling final, and the petition can be adjudicated if no action has been taken on the merits and there is no prejudice to the government. See Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir. 2010); Khan v. U.S. Att‘y Gen., 691 F.3d 488, 494 (3d Cir. 2012).
The question is not an easy one to answer, but we side with the Second and Third Circuits because their approach is consistent with how we have addressed premature appeals in other contexts. In Robinson v. Tanner, 798 F.2d 1378 (11th Cir. 1986), we harmonized our prior cases dealing with premature appeals and derived two principles from those decisions. We explained that a premature notice of appeal is valid if it is filed from an order dismissing a claim or party, and is followed by a subsequent final judgment, even without a new notice of appeal being filed. See id. at 1385 (citing Jetco Elec. Indus. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973)). In contrast, a premature notice of appeal filed from an interlocutory order that is not immediately appealable is not cured by a subsequent final judgment. See Robinson, 798 F.2d at 1385 (citing United States v. Taylor, 632 F.2d 530, 531 (5th Cir. 1980)).
The scenario we have here is much closer to the first category of premature appeals described in Robinson. We have held, and other circuits agree, that the reinstatement of a prior order of removal is appealable under
Stated differently, the initial reinstatement order here was not, in and of itself, an interlocutory and unreviewable act on the part of DHS. That order was rendered non-final only because of the ongoing reasonable fear proceeding. So once the immigration judge ruled adversely to Mr. Jimenez-Morales in the reasonable fear proceeding, the reinstatement of the 2011 removal order became final. Given that we have not taken any action on the merits, and that the government has not alleged or shown any prejudice that would result from judicial review, we conclude that we have jurisdiction to consider the petition. See Herrera-Molina, 597 F.3d at 132; Khan, 691 F.3d at 494. Cf. United States v. Curry, 760 F.2d 1079, 1080 (11th Cir. 1985) (premature notice of appeal following jury verdict in criminal case was effective to perfect appeal as of date when defendant was sentenced). The government‘s motion to dismiss is therefore denied.
II
On the merits, Mr. Jimenez-Morales argues that he is entitled to political asylum because he has shown that he suffered persecution in Colombia based on imputed political opinion and membership in two social groups. See, e.g., Petitioner‘s Initial Br. at 8. The government responds that
The full text of
If the Attorney General 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, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
(emphasis added). The meaning and effect of this statutory provision presents a question of law. See Chandris, Inc. v. Latsis, 515 U.S. 347, 369 (1995). As explained below, we conclude that asylum is not available to Mr. Jimenez-Morales.
In relevant part,
One final matter warrants discussion. The Supreme Court has written in dicta that, despite
III
Because Mr. Jimenez-Morales is not eligible for asylum, we deny his petition.
PETITION DENIED.