F. J. A. P. v. Merrick B. GarlandF. J. A. P. v. Merrick B. Garland
I. Background2
F.J.A.P. first entered the United States from El Salvador in 2000. After he pleaded guilty to a misdemeanor and later violated parole, the Department of Homeland Security (“DHS”) removed him to El Salvador in 2010.
F.J.A.P. remained in El Salvador for four years. While there, he lived with his father in the village of Las Trancas and drove to Universidad Gerardo Barrios in Usulutan to attend college classes. He also worked as a taxi driver to earn extra money.
Eventually, MS-13 began extorting F.J.A.P. for money while he drove back and forth between Las Trancas and Usulutan. To avoid trouble, he complied with their demands
F.J.A.P. reported the demand and threat to the police in a formal complaint and then went into hiding. He lived with a relative thirty minutes away from Las Trancas, never leaving the house, until returning to the United States.
Not long after he arrived for the second time in the United States, F.J.A.P.’s cousin called to tell him that MS-13 was “looking for both of [them].” Then, in 2015, F.J.A.P. learned that the gang had murdered that same cousin in front of his pregnant wife. F.J.A.P. believes his cousin was murdered because he refused to divulge F.J.A.P.’s location.
Eventually, law enforcement again detained F.J.A.P., and DHS reinstated his order of removal on January 22, 2020. After he expressed fear for his life if he returned to El Salvador, F.J.A.P. was placed in withholding-only proceedings. At the initial level of review, an asylum officer found that F.J.A.P. did not have a reasonable fear of persecution or torture.
The immigration judge disagreed, determining that F.J.A.P. had a credible claim he would be tortured if DHS returned him to El Salvador. In granting F.J.A.P.’s application for withholding under the Convention Against Torture (CAT), the immigration judge reasoned that his testimony was credible for its consistency and corroboration.
The immigration judge based his decision to grant CAT relief on the following facts: F.J.A.P. had been called by a
The government appealed this decision to the Board of Immigration Appeals (“Board”). The Board reversed the immigration judge’s decision to grant CAT relief in a brief, twopage order, finding that the immigration judge’s decision was “based on assumptions and a series of hypotheticals.” It stated that the judge’s determination that F.J.A.P. was likely to be tortured or killed was an unsupported prediction. Specifically, the Board found three clearly erroneous “hypothetical suppositions.” First, the Board dismissed any finding related to the phone call F.J.A.P. received demanding $2,000, reasoning that the record contained no evidence that the caller actually was a high-ranking gang member. Second, the Board concluded that there was insufficient evidence that the gang had any interest in harming F.J.A.P. And third, the Board discounted any personal threat F.J.A.P. might face because the 2019 Human Rights Report established only general corruption throughout El Salvador.
On this basis, the Board vacated the immigration judge’s order granting relief and ordered F.J.A.P. removed to El Salvador on June 14, 2021. F.J.A.P. petitioned the Seventh Circuit
II. Analysis
F.J.A.P. challenges the Board’s reversal of CAT relief. He argues that the Board misapplied clear error review and lacked substantial evidence to support reversal.
In response, the government initially argued that we lack jurisdiction because F.J.A.P.’s petition was untimely, coming more than 30 days after the reinstatement of his removal order. The government has since withdrawn that argument, conceding that
In supplemental briefing shortly before oral argument, the government also argued for the first time that
With that, we must independently assure ourselves of our jurisdiction, which we review de novo. Villa v. Barr, 924 F.3d 370, 372 (7th Cir. 2019).
A. Jurisdiction
Under
F.J.A.P. filed his petition with this court on July 13, 2021, 29 days after the agency concluded withholding proceedings on June 14, 2021, but almost a year and a half after his order of removal was reinstated in January 2020. So, if a reinstated order of removal becomes final on the day issued, regardless of placement in withholding proceedings, F.J.A.P. filed too
1. Relevant Statutory and Regulatory Scheme
Before we can determine when the 30-day filing deadline expired in F.J.A.P.’s case, we must review the relevant statutory and regulatory provisions implicated in his petition.
a. Statutory History
Congress passed the Immigration and Nationality Act (“INA”) in 1952 and repeatedly amended it in the decades that followed. Four acts shaped the specific law governing F.J.A.P.’s case, including two significant overhauls to the INA in 1996: the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). AEDPA streamlined the process for removing noncitizens convicted of certain crimes, referred to as the criminal alien bar.
IIRIRA changed “deportation” and its variants to “removal” throughout the INA, see, e.g.,
Two years after IIRIRA, the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”) implemented Article III of the international Convention Against Torture. See id. As a signatory, the United States agreed not to remove a noncitizen to a particular country where that noncitizen demonstrates a likelihood of torture in that country. The resulting decision not to remove is referred to as CAT relief. FARRA implemented that treaty obligation by “provid[ing] for judicial review of CAT claims ‘as part of the review of a final order of removal pursuаnt to section 242 of the [INA] (8 U.S.C. 1252).’” Id. (quoting 112 Stat. 2681–822, note following
Then, in 2005, the REAL ID Act further codified protections for those noncitizens who might face torture if returned to a particular country. It added a specific provision that “a petition for review filed with an appropriate court of appeals
b. Statutory and Regulatory Impact on Proceedings
Read together, these four Acts prioritize efficient removal on the one hand and judicial review on the other. This case highlights the tension between those two priorities.
IIRIRA’s streamlining effect extends to any noncitizen who, like F.J.A.P., has previously been ordered removed and subsequently reenters the United States without permission.
Despite limited review of reinstated removal orders, the INA and FARRA ensure access to withholding-only relief if the noncitizen fears persecution or torture. The INA’s implementing regulation,
For their part, the implementing regulations ensure that when a noncitizen is ordered removed, if he expresses fear of returning to the country of removal, he is referred to an asylum officer for a reasonable fear screening interview.
The REAL ID Act in turn makes these decisions reviewable by a court of appeals.
2. Seventh Circuit Precedent
We have previously exercised jurisdiction over petitiоns from the reinstatement of a removal order under
3. Circuit Split
Two recent Supreme Court decisions, Nasrallah v. Barr, 140 S. Ct. 1683 (2020), and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021), have caused some circuits to reconsider whether they have jurisdiction to review CAT orders for removal reinstatements where the petition for review is filed more than 30 days after the reinstatement of the removal order. Nasrallah narrowed “final orders of removal” for purposes of the criminal alien bar in
Relying on these decisions, the Second and Fourth Circuits have broken from their precedent to hold that
The Fourth Circuit relied upon circuit precedent to reach the same conclusion. The circuit had previously considered
In contrast, the Fifth, Sixth, Ninth, and Tenth Circuits have recently held that reinstated orders of removal become final for purposes of judicial review upon the conclusion of CAT proceedings. Argueta-Hernandez, 87 F.4th at 705–06; Kolov, 78 F.4th at 919; Alonso-Juarez, 80 F.4th at 1056; Arostegui-Maldonado v. Garland, 75 F.4th 1132 (10th Cir. 2023).5 The Fifth Circuit reasoned that a contrary conclusion would force noncitizens to file premature petitions and “have disastrous consequences on the immigration and judicial systems.” Argueta-Hernandez, 87 F.4th at 706.6 Each panel distinguished Guzman Chavez’s definition of final based on context: finality fоr purposes of detention is not finality for purposes of judicial review. Id.; Kolov, 78 F.4th at 919; Alonso-Juarez, 80 F.4th at 1050; Arostegui-Maldonado, 75 F.4th at 1143. The Supreme Court itself explicitly identified this distinction and limited its interpretation of administrative finality to
4. Statutory Analysis
Because of this circuit split, we ask whether Nasrallah and Guzman Chavez define “final” for purposes of judicial review in
a. Supreme Court Decisions
Nasrallah preserved withholding-only review for noncitizens subject to removal under the criminal alien bar by narrowing the meaning of “final orders of removal” under
Because Congress did not explicitly foreclose judicial review of CAT orders, the Court would not interpret the statute to do so implicitly. Id. In fact, Nasrallah very clearly grounds its division between orders of removal and CAT orders on Congress’s explicit intent in
In Guzman Chavez, the Supreme Court held that, for noncitizens in withholding proceedings, like F.J.A.P., a reinstatement order becomes “administratively final” immediately upon reinstatement. 141 S. Ct. at 2285. Specifically, the Court found that noncitizens, subject to reinstatement but
Second, Guzman Chavez further emphasized that pending decisions in noncitizens’ withholding proceedings do not make their removal orders any less “administratively final.” Id. at 2285. In other words, reasonable fear proceedings do not impact the validity of the underlying removal order. Those proceedings may dictate “where an alien may be removed. It says nothing, however, about the antecedent question whether an alien is to be removed.” Id. at 2286. It is that antecedent question—not the details of removal—that makes an order “administratively final” and justifies detention.
The definition of administrative finality for purposes of
The Court itself highlighted contextual differences by explicitly limiting its holding to the context of detention, distinguishing it from the use of “final order of removal” in
The difference in language used by Congress is significant. Equating finality in
The Court’s opinion in Guzman Chavez made clear the role the word “administratively” played in
For these reasons, we find that neither Nasrallah nor Guzman Chavez dictate that reinstated orders of removal become final for purposes of
Our precedent treats reinstated orders of removal as final orders of removal for purposes of judicial review under
Even before Nasrallah, this circuit held that CAT orders are separate from orders of removal and therefore cannot themselves be considered final orders of removal. Wanjiru v. Holder, 705 F.3d 258, 264 (7th Cir. 2013) (distinguishing between “final orders of removal” for purposes of the criminal alien bar and finality for purposes of judicial review in
When Congress provides an explicit definition of a statutory term, that definition controls. See Tanzin v. Tanvir, 141 S. Ct. 486, 490 (2020). Yet the INA’s definition of “final” offers little help when considering a petition from a reinstated order of removal. Section
Plain meaning. We interpret statutory language according to “ordinary, contemporary, common meaning,” unless Congress has explicitly dictated another interpretation. Melvin, 948 F.3d at 852 (quoting Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014)). The Oxford English Dictionary (2d ed. 1989) offers two relevant definitions of “final“: 1) “marking the last stage of a process; leaving nothing to be looked for or expected; ultimate;” and 2) “putting an end to something ...; putting an end to strife or uncertainty; not to be undone, altered, or revoked; conclusive.” (emphasis added). Similarly, the Supreme Court recently relied on contemporary popular dictionaries to explain the meaning of “final decision” in the context of judicial review оf Social Security Administration determinations, concluding that “the phrase ‘final decision’ clearly denotes some kind of terminal event.” Smith v. Berryhill, 139 S. Ct. 1765, 1774 & n.8 (2019); see also Waetzig v. Halliburton Energy Servs., Inc., 82 F.4th 918, 923 n.5 (10th Cir. 2023) (comparing the legal definition of “final” with the definition in Webster‘s New International Dictionary of the English Language).
In the context of a reinstated order of removal, while the order itself may be unreviewable and so “ultimate,” a CAT
This understanding of finality aligns with our previous decisions to exercise jurisdiction over a noncitizen‘s petition after the agency concluded withholding proceedings. In Eke, we held that “the immigration authorities were not finished with Eke‘s case until the [Board]‘s final decision” in withholding proceedings. 512 F.3d at 377-78. The final decision in Eke‘s withholding proceedings reflected that the agency was finished, at which time we had jurisdiction over the removal and withholding order. Id.
The plain meaning of “final” also tracks legal understanding. Black‘s Law Dictionary defines final as “last; conclusive; definitive; terminated; completed;” and in reference to legal actions, “a judgment is ‘final’ if no further judicial action ... is required” (6th ed. 1990). But a reinstatement order does require further agency action when a noncitizen enters withholding proceedings. Although the noncitizen has been determined deportable, the agency‘s work is not completed, and it may not remove the noncitizen until agency withholding review is complete. See
To overcome that burden, the statute‘s language or structure must indicate a clear intent by Congress to foreclose judicial review. Smith, 139 S. Ct. at 1776-77. Discretionary decisions left to the agency, for example, may not be subject to judicial review unless a petitioner raises a constitutional claim or question of law.
Congress, however, explicitly provided for judicial review of CAT orders. As Nasrallah explained, § 2242(d) of FARRA granted jurisdiction to review CAT claims along with removal orders. 140 S. Ct. at 1693. Both the 2005 REAL ID Act and
Furthermore, our interpretation honors Congress‘s streamlined process created by IIRIRA and AEDPA. Section 1252(b)(9)‘s zipper clause consolidates our review of withholding proceedings with our review of final orders of removal; it does not limit that review. Later congressional actions, particularly the addition of
An interpretation that forecloses review of CAT orders cannot stand; it directly contradicts the presumption of review, a presumption supported by the language of the INA. The dissent claims to comply with the presumption of reviewability because Congress explicitly foreclosed review of reinstated orders of removal. But its interpretation forecloses review of withholding orders as well, despite the lack of clear congressional intent to do so. Our decision regarding when an order of removal becomes final will determine what can be reviewed. If a petition for review of a CAT order associated with a reinstated removal order must be filed within 30 days of that reinstatement, review of most—if not all—CAT orders will be foreclosed. See Martinez, 86 F.4th at 574 (Floyd, J., concurring) (noting that “withholding and CAT proceedings often take months or even years to conclude“). But Congress has not explicitly foreclosed the review of withholding decisions associated with those reinstated orders. In fact, the Supreme Court has stated that although
Inefficient review is similarly incompatible with the explicit provisions of the INA‘s zipper clause, intended to streamline judicial review. Preserving review of CAT claims in cases of reinstated removal orders would require noncitizens to file premature and incomplete petitions seeking review of not-yet-complete withholding proceedings in order to meet
Consolidating orders of removal with CAT orders for streamlined review is consistent with the approach we have previously taken when presented with рetitions pending the completion of withholding proceedings. Rather than stay our
Other circuits have similarly interpreted judicial review provisions in
It would be easy enough for Congress to limit judicial review of CAT orders, just as Congress has limited judicial review of reinstated orders of removal to a narrow set of questions. But Congress has not done so. Nasrallah, 140 S. Ct. at 1692. Instead, it has preserved access to appellate review through a streamlined process. Therefore, we adopt the statutory interpretation preserving judicial review of administrative action in the streamlined fashion that the zipper clause requires. Kucana, 558 U.S. at 237; see also Alonso-Juarez, 80 F.4th at 1053.10
The Supreme Court‘s decision in Santos-Zacaria bolsters our interpretation. Although Santos-Zacaria dealt with a different provision of the INA, the Court‘s failure to even
Based on the statutory language, structure, and context of
Because F.J.A.P. filed his petition within 30 days of the completion of his CAT proceedings, we have jurisdiction to hear his petition and proceed to the merits.
F.J.A.P. petitions for review of the determination by the Board of Immigration Appeals that the immigration judge erred by granting CAT relief. He argues that the Board misapplied the clear error standard by which it reviews determinations of the immigration judge,
The Board must review the immigration judge‘s factual findings “only for clear error, not de novo.” Estrada-Martinez v. Lynch, 809 F.3d 886, 889 (7th Cir. 2015) (citing
Clear error review is a “highly deferential” standard. Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1070 (7th Cir. 2013). The Board may not reweigh evidence; instead, it “must find that, on balance, the weight of the evidence so strongly militates against the immigration judge‘s finding that the Board is left with the definite and firm conviction that a mistake has been committed.” Estrada-Martinez, 809 F.3d at 894-95 (cleaned up). To be clearly erroneous, a factfinder‘s conclusions must be “‘illogical or implausible’ or lack ‘support in inferences that may be drawn from the facts in the record.‘” Id. at 895 (quoting Anderson v. Bessemer City, 470 U.S. 564, 577 (1985)). When those conclusions are based “on a decision to credit a witness‘s testimony, that finding ‘can virtually never be clear error’ as long as the testimony is ‘coherent and facially plausible,’ ‘not internally inconsistent,’ and ‘not contradicted by extrinsic evidence.‘” Id. (quoting Anderson, 470 U.S. at 575).
Acknowledging the proper standard of review, the Board stated that its conclusion was based on clear error review. But “merely parroting the proper standard of review does not immunize the Board‘s decision.” Brito, 40 F.4th at 552. Instead, we look to the analysis to determine whether any factors exist that suggest it conducted de novo rather than clear error review.
In this case, each of those risk factors is present. Recall that the Board reversed the immigration judge‘s determination because it was based on “assumptions and a series of hypotheticals,” in three ways: (1) The record did not support the inference that the man who called F.J.A.P. to demand $2,000 was a “high-ranking gang member.” (2) There was insufficient evidence that the gang was interested in harming F.J.A.P. because they had not contacted him since he left El Salvador. (3) There was insufficient evidence that repоrting the extortion to the police would put F.J.A.P. personally at risk of harm.
Failure to address key factual findings. The Board‘s first conclusion, that there was no evidence in the record to support the conclusion that F.J.A.P. was threatened by a high-ranking gang member, failed to address all factual findings. On its
Dismissing the immigration judge‘s finding that F.J.A.P. was threatened by a high-ranking gang member, the Board explained, “Although the applicant points to information from the Department of State‘s country report from 2019 referencing the smuggling of cell phones into the prisons where gang members are housed, the record does not contain evidence reflecting that the caller was a high-level gang member.” If the country report were the only evidence to support the immigration judge‘s finding, this would certainly be permissible clear error review, showing that the immigration judge had made unsupported inferences. But the immigration judge credited F.J.A.P.‘s consistent and corroborated testimony of his personal experiences. The country report provides a backdrop to significant testimonial evidence. The record reflects that the gang members F.J.A.P. saw daily had been extorting him for $20 weekly; that two of those same gang members came to his home with a cell phone; that the man on the other end of the cell phone purported to be in jail; that the man on the other end of the phone demanded $2,000 on behalf of the gang; and that they would kill him if he did not give them the money. This story is completely consistent with his contemporaneously filed police report, which added that a gang member was to be sent to collect the money from F.J.A.P. the day after the threat.
Reweighing the evidence. The Board‘s second reason for reversing the immigration judge‘s conclusion, that there was insufficient evidence that the gang wanted to harm F.J.A.P. specifically, reweighed evidence indicative of de novo review.
In Estrada-Martinez, we determined that the Board had impermissibly reweighed the evidence. Although the Board “did not dispute the judge‘s findings” of previous torture, ongoing fear of torture, and recent threats made to the petitioner, it “discounted these facts” while giving more weight to others. 809 F.3d at 896. The Board engaged in the same impermissible evaluation here, discounting evidence the immigration judge found significant in F.J.A.P.‘s case. It opined that F.J.A.P. “has not had any contact with the gang members who extorted him since 2014, and there is no indication that gang members have asked the applicant‘s family about him (even after the gang killed his cousin in 2015 for similarly not complying with gang demands).” The Board therefore concluded that there was no evidence suggesting the gang was interested in harming him.
Like in Estrada-Martinez, the Board discounted evidence of previous threats credited by the immigration judge and corroborated by the contemporaneous police report. But the immigration judge clearly thought that evidence significant, weighing heavily a threat to kill F.J.A.P. specifically, despite
Failure to explain the immigration judge‘s errors. The Board‘s third critique of the immigration judge‘s finding perfunctorily rejected those findings without explanation. It stated simply that “there is insufficient record evidence indicating that the applicant is personally at risk of torture because he reported the extortion and the death threat to the police in 2014.” The Board did not explain how the immigration judge‘s conclusion that F.J.A.P. would likely be tortured for having “the audacity to file a police report” is illogical, implausible, or lacks support. The Board did not explain why, in a country where gangs control much of the government—an assertion which was supported in the record by the State Department‘s country report—an individual complaint about the gang made to the gang-controlled police would not put a target on someone‘s back.
III. Conclusion
For these reasons, we find that the Board erred by failing to apply the required clear error standard of review. Because
* * *
The petition for review is
GRANTED AND REMANDED.
I
The Immigration and Nationаlity Act, several regulations, and two recent Supreme Court opinions provide the rules for this decision. For clarity, I briefly review those.
First, we look to the statutes and regulations. The INA provides for the removal of aliens and judicial review of that removal. Title
With a final order of removal, we can review “all questions of law and fact ... arising from any action taken or proceeding brought to remove [the] alien from the United States.”
After an alien reenters illegally, the “prior order of removal is reinstated from its original date.”
In addition to these statutes, certain federal regulations apply, which themselves implement treaty obligations. Those regulations allow limited relief for illegal reentrants. Under those regulations, an alien may present evidence to an asylum officer, who will determine whether the alien has a “reasonable fear” of persecution or torture in his home nation.
Next, two recent Supreme Court cases guide us. In Nasrallah v. Barr, 590 U.S. –––, 140 S. Ct. 1683 (2020), the Court addressed whether a court of appeals could review factual findings concerning a criminal alien‘s final order of removal and CAT order. 140 S. Ct. at 1689. For criminal aliens,
In Nasrallah, the Court clarified the meaning of final order of removal in
does not disturb the final order of removal. An order granting CAT relief means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country. But the noncitizen still may be removed at any time to another country where he or she is not likely to be tortured.
Id. at 1691 (cleaned up). So, a CAT order is not a final order of removal and cannot be reviewed independently. Id.
Further, in Johnson v. Guzman Chavez, 594 U.S. –––, 141 S. Ct. 2271 (2021), the Court considered whether to classify withholding of removal requests by those subject to a reinstatement decision undеr
The Court ruled that a decision to withhold removal is not an order of removal. See Guzman Chavez, 141 S. Ct. at 2287-88. The Court also stated that a reinstatement decision is administratively final as soon as it is issued, and “the finality of the order of removal does not depend in any way on the outcome
In the wake of these two recent Supreme Court decisions, there have been numerous inter- and intra-circuit splits on this jurisdictional issue. See Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190-93 (2d Cir. 2022); but see Order at 2, Cerrato-Barahona v. Garland, No. 22-6349 (2d Cir. July 12, 2023), ECF No. 22; Order at 2, Castejon-Paz v. Garland, No. 22-6024 (2d Cir. July 12, 2023), ECF No. 25; Martinez v. Garland, 86 F.4th 561, 568 (4th Cir. 2023); Martinez, 86 F.4th at 572-74 (Floyd, J., concurring); Argueta-Hernandez v. Garland, 87 F.4th 698, 705-06 (5th Cir. 2023) (reconsidering and overruling Argueta-Hernandez v. Garland, 73 F.4th 300, 302 (5th Cir. 2023)); Ruiz-Perez v. Garland, 49 F.4th 972, 976 (5th Cir. 2022); but see Ruiz-Perez, 49 F.4th at 980-86 (Oldham, J., dissenting); Kolov v. Garland, 78 F.4th 911, 918-19 (6th Cir. 2023); Alonso-Juarez v. Garland, 80 F.4th 1039, 1056 (9th Cir. 2023); Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1143 (10th Cir. 2023); but see Arostegui-Maldonado, 75 F.4th at 1148-51 (Tymkovich, J., concurring).
And in a number of cases pending before this court, the government has changed its position—sometimes more than once—on when an order of removal becomes final and whether the filing deadline in
We should reconsider our approach to this jurisdictional question in light of the Court‘s decisions.
II
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). This court has an “independent obligation to determine whether subject-matter jurisdiction exists.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
To fulfill that obligation, we must answer three questions. First, does either a CAT order or a reinstatement decision qualify as a removal order? Second, is the petition for review filing deadline jurisdictional? And third, did F.J.A.P. timely file his petition for review?
A
This court has jurisdiction to review only when there is a final order of removal.
1. A CAT order is not an order of removal.
Because withholding-only relief addresses where an alien may be removed to, not whether an alien is removable, a CAT order is not an order of removal. Guzman Chavez, 141 S. Ct. at
2. A reinstatement decision may not be an order of removal, but under our current precedent, I presume that it is.
Courts have questioned whether a reinstatement deсision is an order of removal. See Guzman Chavez, 141 S. Ct. at 2285 n.6 (leaving open this question); Martinez, 86 F.4th at 568 (questioning whether a reinstatement decision is a final order of removal); Ruiz-Perez, 49 F.4th at 976 (same); Bhaktibhai-Patel, 32 F.4th at 195–96 (same). The reinstatement decision is the result of an expedited process for those who, after already having been removed, reenter the United States without authorization. See
Reinstatement of removal orders against aliens illegally reentering
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.
A reinstatement decision does not fit within the statutory definition of a removal order. The language of
Although, as explained above, the reinstatement decision may not be an order of removal, caution counsels against reaching that conclusion. Guzman Chavez left open this question, see 141 S. Ct. at 2285 n.6, and this court‘s precedent presumes that a reinstatement decision is a removal order, see Faiz-Mohammad v. Ashcroft, 395 F.3d 799, 800 (7th Cir. 2005). So, as does the majority opinion, I conclude that a reinstatement decision is a final order of removal subject to judicial review under
B
The second question is whether the petition for review filing deadline is jurisdictional. The relevant statute,
I join the majority‘s holding that the filing deadline in
As the Court stated in Santos-Zacaria, Stone was decided at a time when the Supreme Court used the word “jurisdiction” more loosely than it does under current practice. Id. And, under current practice, a time limit for seeking judicial review of an administrative decision would likely not be called jurisdictional. See, e.g., Arbaugh, 546 U.S. at 515; Arellano v. McDonough, 598 U.S. 1, 6–14 (2023). But the Court in Santos-Zacaria decided not to apply Stone to the exhaustion provision in
Santos-Zacaria did not overrule Stone. The Court in Santos-Zacaria distinguished the reasoning in Stone as applied to exhaustion provisions in the INA and given current practice, called into question the reasoning in Stone. Santos-Zacaria did not discuss filing deadlines at all. See id. In Stone, however, the Court did specifically consider filing deadlines—such as the one at issue here—and concluded that the filing deadline in the INA was jurisdictional. 514 U.S. at 405.
As an inferior court, we continue to apply Stone until overruled. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication,
C
The third question is whether F.J.A.P. timely filed his petition for review. I part ways with my colleagues here and I conclude that he did not.
A petition of review must be filed “not later than 30 days after the date of the final order of removal.”
- Prior final order of removal—December 16, 2008;
- DHS decision to reinstate prior final order of removal—January 22, 2020;
- Board decision reversing IJ grant of CAT relief, concluding withholding-only proceedings—June 14, 2021; and
- Petition for review filed with our court—July 13, 2021.
If the reinstatement decision was final when issued on January 22, 2020, F.J.A.P. had to petition for review by February 21, 2020. His petition was thus untimely. If, however, F.J.A.P.‘s placement in withholding-only proceedings meant that the reinstatement decision was not yet final, F.J.A.P. had 30 days after the conclusion of the withholding-only
1. Withholding-only proceedings do not affect the finality of reinstatement decisions.
The 30-day filing deadline began to run on January 22, 2020, when DHS reinstated F.J.A.P.‘s prior order of removal, so his petition for review was not timely. F.J.A.P.‘s reinstatement decision has “long been ‘administratively final.‘” Guzman Chavez, 141 S. Ct. at 2285. An order of removal becomes final at the conclusion of the allowed administrative review. See
- a determination by the Board of Immigration Appeals affirming such order; or
- the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.
The INA contains no other definition of “final.” The Court in Nasrallah (interpreting
Using the definition in
Withholding-only proceedings do not change this. This court has held as much, concluding that an order of removal is final and reviewable, even if a request for discretionary relief, such as a withholding-only decision, remains pending. See Jimenez Viracacha v. Mukasey, 518 F.3d 511, 513 (7th Cir. 2008).
The reinstatement decision and the order deciding withholding-only relief are separate decisions. In order to make the withholding-only decision, there must be a removal decision—here the reinstatement decision, which requires the removal of the alien—that can be withheld. A grant of withholding-only relief does not affect the validity—the legally binding effect—of a final order of removal. Guzman Chavez, 141 S. Ct. at 2288 (quoting Nasrallah, 140 S. Ct. at 1691). Again, withholding-only relief affects where an alien is removed to, not whether an alien is removable. Id. at 2285–86.
The indeterminacy as to where an alien may be removed does not affect whether DHS can remove the alien. Even if withholding-only proceedings begin, DHS can still deport the
Concluding otherwise runs counter to the reasoning in Nasrallah and Guzman Chavez. Recall, the Supreme Court rejected Guzman Chavez‘s argument that withholding-only proceedings keep a removal order “pending.” Id. at 2285 (“Respondents misunderstand the nature of withholding-only proceedings.“). Again, the Court has explained that even if withholding-only relief is granted, the removal order “is not vacated or otherwise set aside” but “remains in full force.” Guzman Chavez, 141 S. Ct. at 2285. Withholding-only relief “‘does not disturb the final order of removal,’ ‘affect the validity of the final order of removal,’ or otherwise ‘merge into the final order of removal.‘” Id. at 2288 (quoting Nasrallah, 140 S. Ct. at 1691).
Moreover, in Nasrallah, the Court rejected the government‘s argument that in some cases no order deciding withholding-only relief was judicially reviewable: “Section 2242(d) of FARRA, enacted in 1998, expressly provides for judicial review of [withholding-only] claims together with the review of final orders of removal.” Nasrallah, 140 S. Ct. at 1693. The Court did not say that a withholding-only decision prevents an order of removal from becoming final, and thus was reviewable as part of the administrative process with an order of removal.
Last, per the majority opinion‘s interpretation of the INA statutes, a reinstatement decision could be final for purposes of detention under
2. Contrary readings of the statutes and caselaw are not persuasive.
The majority opinion concludes the opposite, reasoning that: (1)
Under
A “final order of removal” under
Here, the order of removal was a reinstatement decision, which was final when issued. Again, under
The penalties related to removal also support this reading.
The INA often uses language to differentiate between when there is a final order of removal—as an agency‘s process is complete, and judicial review may be allowed—and when
The majority opinion states that “under
A final order of the court is distinct from a final order of removal that may be subject to judicial review. An order of removal is final when “administratively final” and that finality “does not depend in any way on the outcome of the withholding-only proceedings.” Guzman Chavez, 141 S. Ct. at 2287. Again, entering withholding-only proceedings does not keep a removal order “pending“; rather, it “remains in full force.” Id. at 2285. Holding otherwise contradicts the expedited review process Congress created in
ii. The Court left open whether a reinstatement decision is an order of removal, not when an order of removal is final.
I do not read the Court in Guzman Chavez to have left open the question of when an order of removal is final under
[S]ome lower courts’ interpretation of the phrase “final order of removal” as it is used in
8 U. S. C. § 1252(b)(1) requires that this Court adopt respondents’ interpretation of§ 1231 here. Brief for Respondents 24–26, and n. 8. We express no view on whether the lower courts are correct in their interpretation of§ 1252 , which uses different language than§ 1231 and relates to judicial review of removal orders rather than detention.
Guzman Chavez, 141 S. Ct. at 2285 n.6. The footnote refers to the lower courts’ decisions that a reinstatement decision was a new order of removal subject to judicial review under
The citations in footnote 8 of Guzman Chavez‘s Supreme court brief support this conclusion. Every case cited there presumed that the court has appellate jurisdiction over the reinstatement decision under
The Court‘s later discussion of these same pages in Guzman Chavez‘s brief provides further clarity. There, the Court considered her argument that even if a reinstatement decision is final when issued, withholding-only proceedings reopen finality. The Court disagreed, stating, “removal orders and withholding-only proceedings address two distinct questions. As a result, they end in two separate orders, and the finality of the order of removal does not depend in any way on the outcome of the withholding-only proceedings.” Guzman Chavez, 141 S. Ct. at 2287.
Because the validity of removal orders is not affected by the grant of withholding-only relief, an alien‘s initiation of withholding-only proceedings does not render non-final an otherwise “administratively final” reinstated order of removal.
Santos-Zacaria does not disturb this interpretation of Nasrallah and Guzman Chavez. See supra at 28–29. We may not draw conclusions from “drive-by jurisdictional rulings.” See, e.g., Steel Co. v. Citizens for Better Env‘t, 523 U.S. 83, 91 (1998). Not unless a jurisdictional issue is squarely confronted and addressed has a jurisdictional holding occurred. In Santos-Zacaria, the Court dealt with a different provision of the INA and
3. The presumption of reviewability does not change this result.
Finally, the presumption of reviewability is just that: a presumption. Congress can foreclose judicial review. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349, 351 (1984); Abbott Lab‘ys v. Gardner, 387 U.S. 136, 140 (1967) (citing cases), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). That presumption can be overcome by clear and convincing evidence of Cоngressional intent to preclude judicial review. Rusk v. Cort, 369 U.S. 367, 379–80 (1962), abrogated on other grounds by Califano, 430 U.S. at 105. With reinstatement
III
F.J.A.P. illegally reentered the United States, so his prior order of removal was reinstated. Because F.J.A.P. petitioned for review more than 30 days after the reinstatement decision, his petition was untimely. I agree with the majority opinion that the filing deadline for a petition for review is jurisdictional. Therefore, I conclude that our court does not have jurisdiction to consider F.J.A.P.‘s petition, and I would dismiss this petition. For these reasons, I respectfully concur in part and dissent in part.
Notes
But the Board did not discuss the reinstatement decision. Instead, the Board said the withholding-only decision does not affect the