JOSE LUIS ALONSO-JUAREZ v. MERRICK B. GARLAND, Attorney General
No. 15-72821
United States Court of Appeals for the Ninth Circuit
September 8, 2023
Agency No. A072-709-355
FOR PUBLICATION
Argued and Submitted October 4, 2022 Seattle, Washington
Filed September 8, 2023
Before: Mary H. Murguia, Chief Judge, and William A. Fletcher and Mark J. Bennett, Circuit Judges.
Opinion by Chief Judge Murguia
SUMMARY*
Immigration
Denying Jose Luis Alonso Juarez‘s petition for review of an immigration judge‘s decision upholding an asylum officer‘s negative reasonable fear determination following the reinstatement of a prior order of removal, the panel held that: (1) the thirty-day deadline for filing a petition for review set forth in
In light of Santos-Zacaria v. Garland, 598 U.S. 411 (2023)—holding that a neighboring exhaustion provision in the Immigration and Nationality Act (“INA“),
The panel concluded that Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012), in which this court held that a petition arising from a reinstated order of removal is not ripe for review until the reasonable fear proceedings have concluded, was not clearly irreconcilable with the Supreme Court‘s decisions in Nasrallah v. Barr, 140 S. Ct. 1683 (2020) and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021). The panel declined to adopt the Second Circuit‘s contrary interpretation in Bhaktibhai-Patel Patel v. Garland, 32 F.4th 180 (2d Cir. 2022)—that a timely petition must be filed within thirty days of the reinstated order of removal—because doing so would raise grave constitutional concerns by effectively cutting off judicial review of reasonable fear and withholding-only decisions. The panel also rejected as unworkable the government‘s suggestion of putting petitions in abeyance pending completion of reasonable fear or withholding-only proceedings. Accordingly, the panel held that a reinstated removal order becomes final, and the 30-day period for filing a petition for review begins, only after the reasonable fear proceedings have concluded.
To the extent Alvarado-Herrera v. Garland, 993 F.3d 1187 (9th Cir. 2021), was unclear on this point, the panel held that the reasonable fear screening regulations,
The panel concluded that Alonso‘s petition was timely, and in a concurrently filed memorandum disposition, denied Alonso‘s petition on the merits.
COUNSEL
Vicky Dobrin (argued) and Hilary Han, Dobrin & Han PC, Seattle, Washington, for Petitioner.
Shahrzad Baghai (argued), Trial Attorney, Office of Immigration Litigation; Sabatino F. Leo, Assistant Director, Office of Immigration Litigation; Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division; United States Department of Justice, Washington, D.C.; for Respondent.
Kristin Macleod-Ball and Trina A. Realmuto, National Immigration Litigation Alliance, Brookline, Massachusetts, for Amici Curiae National Immigration Litigation Alliance, Center for Gender & Refugee Studies, Florence Immigrant and Refugee Rights Project, and Northwest Immigrant Rights Project.
Lee Gelernt and Anand Balakrishnan, American Civil Liberties Union Foundation, Immigrants’ Rights Project, New York, New York; Cody Wofsy, American Civil Liberties Union Foundation, Immigrants’ Rights Project, San Francisco, California; for Amicus Curiae American Civil Liberties Union.
OPINION
MURGUIA, Chief Circuit Judge:
Jose Luis Alonso Juarez (“Alonso“), a native and citizen of Mexico, reentered the United States without inspection in 2003. The Department of Homeland Security (“DHS“) ordered him removed to Mexico after reinstating an earlier removal order that had been entered against him in 1994. Because Alonso expressed a fear of returning to Mexico, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Alonso did not have a reasonable fear of such harm, and an immigration judge (“IJ“) affirmed that determination. Thirty days after the IJ‘s decision—but more than thirty days after the date his removal order was reinstated—Alonso petitioned for review on several grounds, including that the reasonable fear screening procedures established by federal regulation are inconsistent with the statutory provisions governing withholding of removal.1
In briefing and at oral argument, the government conceded that Alonso‘s petition was timely pursuant to Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012), in which we held that a petition is not ripe for review until the aforementioned reasonable fear proceedings have concluded. Under Ortiz-Alfaro, 694 F.3d at 958, a petition for review should be filed within thirty-days of the conclusion of reasonable fear proceedings.
Several weeks after we heard oral argument, the government filed a letter under
Months later, the government changed course based on subsequent Supreme Court precedent—Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023)—holding that a neighboring provision in the Immigration and Nationality Act (“INA“),
Today, we reach three conclusions. First, we agree with the parties that, under Santos-Zacaria, the thirty-day deadline set forth in
I.
Alonso is a native and citizen of Mexico. He first unlawfully entered the United States in January 1990. Alonso first came to the attention of immigration officials in August 1992, following an Oregon state drug conviction. He was removed to Mexico in September 1992, but he later returned and reentered without inspection. In March 1994, Immigration and Naturalization Service officers apprehended Alonso and charged him with being subject to removal for entering the United States without inspection. The IJ issued an order of removal at an in absentia hearing in December 1994. In December 1998, Alonso voluntarily returned to Mexico based on the 1994 removal order, but he re-entered the United States, again without inspection, in August of 2003.
In June 2015, Alonso was arrested and detained based on the December 1994 removal order. DHS reinstated the removal order in July 2015, and referred Alonso to a reasonable fear screening interview with an asylum officer after he expressed a fear of persecution and torture if removed to Mexico.
The asylum officer found Alonso‘s testimony credible but concluded that Alonso failed to establish a reasonable fear of persecution or torture. Alonso requested that an IJ review the asylum officer‘s reasonable fear determination. In September 2015, the IJ affirmed the asylum officer‘s
II.
A prior removal order can be reinstated for noncitizens who “reenter[] the United States illegally after having been removed or having departed voluntarily, under an order of removal.”
Despite this seemingly categorical prohibition on relief from removal, noncitizens subject to a reinstatement order are eligible to apply for statutory withholding of removal and protection under the Convention Against Torture (“CAT“) at a hearing before an IJ. See Alvarado-Herrera, 993 F.3d at 1190. To obtain that hearing, the noncitizen is placed in the reasonable fear proceedings set forth in
If the asylum officer determines that the noncitizen has shown a reasonable fear of persecution or torture in the screening interview, the asylum officer places the noncitizen in what are known as “withholding-only proceedings” by referring the noncitizen to an IJ for a hearing.
On the other hand, if the asylum officer determines that a noncitizen does not have a reasonable fear, the noncitizen may seek review of the officer‘s determination by an IJ.
If the IJ disagrees with the asylum officer‘s negative reasonable fear determination,
III.
We first address whether we have jurisdiction to entertain Alonso‘s petition for review under
In their briefing, neither Alonso nor the government questioned our jurisdiction. The government wrote:
This Court has jurisdiction to review the Immigration Judge‘s reasonable fear determination because she issued it in connection with a reinstated removal order. . . . The Immigration Judge‘s September 8, 2015 concurrence with the asylum officer‘s negative reasonable fear determination made the reinstatement order administratively final, and thus subject to review under
8 U.S.C. § 1252 . See Andrade-Garcia [v. Lynch], 828 F.3d [829,] 833 [(9th Cir. 2016)];8 C.F.R. § 208.31(g)(1) .
Similarly, neither party questioned our jurisdiction at oral argument.
Several weeks after argument, the government filed a letter pursuant to
Because we must assure ourselves of our jurisdiction, we address it in this case. Ayala v. Sessions, 855 F.3d 1012, 1017 (9th Cir. 2017) (“We have jurisdiction to consider our own jurisdiction.“). We asked the parties to file supplemental briefing on the issue of whether Ortiz-Alfaro remained good law, and subsequently, whether the thirty-day deadline ran from the conclusion of reasonable fear proceedings. And we held numerous cases in this court in abeyance pending our resolution of this issue in this case.
Months later, the government changed course—again—based on the Supreme Court‘s decision in Santos-Zacaria, which held that
In response, Alonso agreed that the thirty-day deadline provision,
As discussed below, we first agree with the parties and hold that the thirty-day filing deadline under
A.
We first consider whether
The Supreme Court and this court have previously treated
The Supreme Court emphasized that, unlike in
Here, as the parties recognize, the thirty-day deadline provision,
B.
Next, we consider whether our holding in Ortiz-Alfaro that, for purposes of the thirty-day filing deadline, a reinstated order of removal becomes final upon the conclusion of reasonable fear proceedings, remains good law.
1.
In Ortiz-Alfaro, DHS reinstated the petitioner‘s prior order of removal and referred him to an asylum officer for a reasonable fear interview after the petitioner expressed a fear of persecution and torture. 694 F.3d at 957. After the asylum officer concluded Ortiz did not have a reasonable fear, Ortiz requested that an IJ review that determination. Id. But prior to the IJ‘s review, Ortiz filed a petition for review challenging the agency‘s reasonable fear regulations because they barred asylum relief. Id. The government asked us to dismiss Ortiz‘s petition, arguing that we lacked jurisdiction because DHS could not execute Ortiz‘s reinstated removal order until the reasonable fear proceedings were
Reviewing the relevant statutes, we agreed with the government. Id. at 958. We explained that finality of a reinstated removal order is usually defined by
We then proceeded to consider the constitutional implications of concluding that a reinstated removal order became final on the date of Ortiz‘s reinstatement, as opposed to the date on which the reasonable fear proceedings were completed. Id. We recognized that “[t]he point at which a removal order becomes final is critical for the purposes of timely petitioning for judicial review,” because a “‘petition for review must be filed no later than thirty days after the date of the final order of removal.‘” Id. (quoting
2.
In the decade following Ortiz-Alfaro, each of our sister circuits that reviewed these petitions likewise considered reinstated orders of removal as final upon the completion of reasonable fear proceedings. See, e.g., Garcia v. Sessions, 856 F.3d 27, 35 (1st Cir. 2017); Garcia-Villeda v. Mukasey, 531 F.3d 141, 144 (2d Cir. 2008); Bonilla v. Sessions, 891 F.3d 87, 90 n.4 (3d Cir. 2018); Tomas-Ramos v. Garland, 24 F.4th 973, 980 n.3 (4th Cir. 2022); Ponce-Osorio v. Johnson, 824 F.3d 502, 506 (5th Cir. 2016); Garcia v. Barr, 946 F.3d 371, 375–76 (7th Cir. 2019); Lara-Nieto v. Barr, 945 F.3d 1054, 1058 (8th Cir. 2019); Luna-Garcia v. Holder, 777 F.3d 1182, 1185 (10th Cir. 2015); Jimenez-Morales v. U.S. Atty Gen., 821 F.3d 1307, 1308 (11th Cir. 2016); see also Zaya v. Garland, No. 20-3815, 2021 WL 4452422, at *1 (6th Cir. Sept. 29, 2021). And the government long embraced that position, conceding that a reinstated removal order cannot be executed until reasonable fear proceedings are completed. This consensus continued until the Second Circuit recently decided to unilaterally depart from it despite the petitioner‘s and the government‘s insistence that the court had jurisdiction.4 Bhaktibhai-Patel, 32 F.4th at 187; see id. at 191, 195 (impliedly overruling Garcia-Villeda, 531 F.3d at 150, to the extent it suggested that reinstated orders of removal are final upon the completion of reasonable fear proceedings).
To date, the Second, Third, and Fifth Circuits have interpreted the Supreme Court‘s reasoning in Nasrallah and Guzman Chavez as precluding judicial review of a petition of review that is filed within thirty days of the completion of reasonable fear proceedings, but more than thirty days from when the order of removal is reinstated. See Farooq v. Att‘y Gen. United States, No. 20-2950, 2023 WL 1813597, at *2-3 (3d Cir. Feb. 8, 2023); Argueta-Hernandez v. Garland, 73 F.4th 300, 303 (5th Cir. 2023) (overruling Ponce-Osorio, 824 F.3d at 506). The Tenth Circuit, on the other hand, held that neither ”Nasrallah [n]or Guzman Chavez clearly overruled Luna-Garcia,” its prior decision holding the same as we did in Ortiz-Alfaro. Arostegui-Maldonado v. Garland, 75 F.4th 1132 (10th Cir. 2023). Similarly, the Sixth Circuit has also held that its circuit precedent treating orders denying withholding of removal as final orders of removal for judicial review was not “clearly irreconcilable” with Nasrallah and Guzman Chavez. Kolov v. Garland, No. 22-3670, 2023 WL 5319751, at *3 (Aug. 18, 2023). We agree with the Sixth and Tenth Circuits.
At first glance, there appears to be some tension between our holding in Ortiz-Alfaro and the Supreme Court‘s holdings in Nasrallah and Guzman Chavez. But a closer inspection of the holdings in each case reveals the government cannot meet the high “clearly irreconcilable” standard established in Miller, and Ortiz-Alfaro can be reconciled with these Supreme Court cases. See Fed. Trade Comm‘n v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019) (explaining that “mere tension between cases does not meet the high standard of irreconcilable conflict“). So, Ortiz-Alfaro continues to provide the correct rule for when a reinstated order becomes final under
i.
In Nasrallah, the Supreme Court addressed only “the narrow question [of] whether, in a case involving a noncitizen who committed a crime specified in
There, the government sought to remove the petitioner after he pled guilty to receiving stolen property, which is a removable crime under
The Supreme Court expressed concern with the government‘s position that
challenges to CAT orders [,] [b]ut Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.“).
Nasrallah and Ortiz-Alfaro can thus be neatly reconciled. Nasrallah was focused on a narrow question that did not encompass reasonable fear regulations or reinstated orders of removal, both of which are essential to the issue before us. And Nasrallah‘s CAT removal order was subject to BIA review, unlike Alonso‘s reinstated removal order, whose finality is unclear under
ii.
The Supreme Court likewise did not squarely address the issue presented here in Guzman Chavez. And the Court‘s holding in Guzman Chavez is even more easily distinguishable from Ortiz-Alfaro than is Nasrallah. Though Guzman Chavez involved reinstated removal orders, the Court there was concerned only with when an order becomes final for purposes of detention—not for purposes of judicial review. Guzman Chavez, 141 S. Ct. at 2280. We have previously held that when an order becomes final for purposes of detention and when it becomes final for purposes of judicial review are two separate inquiries. See Padilla-Ramirez v. Bible, 882 F.3d 826, 836 (9th Cir. 2017) (“Our own decision[] in Ortiz-Alfaro . . . which addressed finality for judicial-review purposes and turned principally on avoiding a construction that would severely inhibit or eliminate that review, [is] not controlling in the detention context.“).
In Guzman Chavez, the respondents were noncitizens detained after their prior removal orders were reinstated. 141 S. Ct. at 2283. Each respondent expressed a fear of returning to their home country, so the government placed each respondent in reasonable fear proceedings. Id. In each case, the asylum officer determined the respondent had a reasonable fear of persecution or torture and referred the respondent to an immigration judge for withholding-only proceedings. Id. The respondents sought release on bond while their withholding-only proceedings were pending. Id. The government opposed release, maintaining that the respondents were not entitled to bond hearings because they were detained under
The Supreme Court granted certiorari to resolve a circuit split on the following question: which detention provision applies to noncitizens who are subject to reinstated orders of removal and who are detained while in withholding-only proceedings. Id. at 2280. In addressing one of the respondents’ arguments, the Supreme Court relied on language in Nasrallah stating that “the validity of removal orders is not affected by the grant of withholding-only relief” and therefore that a grant of withholding “does not render non-final an otherwise ‘administratively final’ reinstated order of removal.” Id. at 2288. Viewed in isolation, this language appears to contradict our reasoning in Ortiz-Alfaro. Indeed, this language appears to indicate that the finality of a removal order is not impacted by an IJ‘s grant of withholding of removal. But the Supreme Court explicitly clarified that its Guzman Chavez holding “express[ed] no view on whether the lower courts are correct in their interpretation of
Not only did the Supreme Court cabin its holding in Guzman Chavez to the finality of a removal order for purposes of detention, as opposed to judicial review, but in resolving the circuit split on that issue, the Supreme Court sided with our precedent. Id. at 2284. In Padilla-Ramirez, we held that a noncitizen in reasonable fear proceedings is subject to detention under
In rejecting his argument, we noted: “At first blush, Ortiz-Alfaro appears to support Padilla-Ramirez‘s position. But the case is readily distinguishable because its holding rested on the canon of constitutional avoidance.” Id. We recognized that Ortiz-Alfaro addressed the finality of reinstated orders for purpose of judicial review and was decided “in large part to preserve the petitioners’ ability to obtain such review.” Id. at 834. And we concluded that our decision in Ortiz-Alfaro “was not controlling in the detention context” because Congress had explicitly immunized reinstated orders from judicial review in that context. Id. at 836 (citing
Padilla-Ramirez thus demonstrates how Ortiz-Alfaro and Guzman Chavez can co-exist. Guzman Chavez—which, like Padilla-Ramirez, was limited to the detention context—is not controlling in the judicial review context, and therefore does not undermine our holding in Ortiz-Alfaro. In sum, because Nasrallah and Guzman Chavez can be applied consistently with our holding in Ortiz-Alfaro, we continue to adhere to that holding. See Consumer Def., 926 F.3d at 1214.
We also decline to adopt the Second Circuit‘s interpretation in Bhaktibhai-Patel because doing so would raise grave constitutional concerns.
It is well-established that “the
We have previously determined whether the regulations governing the reasonable fear proceedings violate due process. See e.g., Alvarado-Herrera, 993 F.3d at 1192–95. Part of our consideration in holding that these regulations comport with due process was the fact that “[a] non-citizen who receives an adverse determination from the asylum officer is entitled to seek de novo review of that determination before an immigration judge, and an adverse decision by the immigration judge is subject to an additional layer of review in the court of appeals.” Id. at 1195 (emphasis added). We concluded that this additional layer of review “reduce[s] the risk that meritorious claims will be erroneously rejected at the screening stage.” Id.; see also Orozco-Lopez v. Garland, 11 F.4th 764, 778 (9th Cir. 2021) (concluding that the limited role of counsel in reasonable fear proceedings was proper, in part because “if the IJ affirms the asylum officer‘s negative fear determination, a non-citizen can seek review by a circuit court of appeals where she . . . can be represented by a lawyer“).
At risk today is that additional layer of review. Indeed, in Bhaktibhai-Patel, the Second Circuit acknowledged that its holding “forecloses judicial review of agency decisions in [reasonable fear] proceedings in some cases.” 32 F.4th at 187–88. As Alonso notes, this holding “effectively cuts off judicial review for all noncitizens in reasonable fear proceedings, because they will almost never receive a final adjudication of their fear claims within 30 days of the date their removal orders are reinstated.” This is precisely the problem we sought to avoid in Ortiz-Alfaro.5
But the government‘s proposal is unworkable. Amici‘s points on this regard are well taken. Indeed, the government‘s proposed practice would be immensely resource intensive. It would lead to an increase in filings, as petitioners would inevitably have to file a petition for review to preserve the possibility of judicial review, even when unsure if they would need to, or even choose to, challenge the decision in the future. This would require our court to dedicate resources to tracking and closing moot or abandoned petitions. We would need to establish a system of holding petitions for review in abeyance for years at a time and require parties to inform our court of the progress of its administrative proceedings. This system would be particularly unfair to pro se noncitizens, who make up the majority of noncitizens in removal proceedings.6 These pro se litigants, who often face language and education barriers, would be forced to navigate a confusing system set up to require appeals of decisions not yet made and pay a hefty filing fee that they likely cannot afford, effectively ensuring that they miss their chance at review.
The government‘s proposal also places too much discretion in the government‘s own hands. Indeed, the government caveats its proposal by noting that it reserves “the right to object” to a noncitizen‘s request to hold an initial petition for review in abeyance to allow later reasonable fear proceedings to conclude. And the government noncommittally notes that “it does not anticipate that it will oppose [these] timely requests.” The government‘s weak assurances do little to mitigate the constitutional concerns at issue. Especially since the government makes no further mention of its proposal in its second supplemental brief.
Regardless, the government‘s proposed complex scheme of filing premature petitions for review would only be necessary if the statutes at issue dictated that petitions must be filed within thirty days of entry of the reinstatement order. But as explained above, they do not. And it is well established that even “when a statutory provision is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020) (quoting Kucana v. Holder, 558 U.S. 233, 251 (2010) (cleaned up)). The Supreme Court “consistently applie[s]” the presumption of reviewability to immigration statutes. Guerrero-Lasprilla, 140 S. Ct. at 1069
Although “it would be easy enough for Congress to preclude judicial review” of determinations from reasonable fear proceedings, Nasrallah, 140 S. Ct. at 1692, Congress has not provided any indication that it wishes to do so here, where the BIA does not have jurisdiction to review negative reasonable fear determinations. Precluding judicial review would increase the risk that petitioners’ meritorious claims will be erroneously rejected.7 And “it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.” Id. We will therefore not deny petitioners access to judicial review, when Congress has not expressly instructed us to do so.
IV.
We next address Alonso‘s contention that the reasonable fear screening regulations,
Specifically, Alonso contends that because withholding of removal is a mandatory form of relief that requires a “trier of fact” to make credibility determinations,
To determine whether a regulation is inconsistent with a statutory scheme, we apply the two-step framework established in Chevron, U.S.A. Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984).8 At step one, we consider “whether Congress has directly spoken to the precise question at issue.” Id. at 842. If the intent of Congress is clear, we give effect to that intent. Id. If the statute is “silent or ambiguous” with respect to the question at issue, we ask, at step two, whether the agency‘s regulation “is based on a permissible construction of the statute.” Id. at 843.
In Alvarado-Herrera, we applied Chevron and held that the reasonable fear screening process is statutorily authorized with respect to both statutory withholding of removal and CAT relief. See 993 F.3d at 1192–95. Alonso attempts to distinguish his arguments from those raised by the petitioner in Alvarado-Herrera. He contends that we have not previously considered the language of two statutory provisions.
Cases are “not precedential for propositions not considered.” United States v. Pepe, 895 F.3d 679, 688 (9th Cir. 2018). Thus, “if a prior case does not raise or consider the implications of a legal argument, it does not constrain our analysis.” Kirilyuk, 29 F.4th at 1134 (citation and internal quotation marks omitted). But
First, Alonso points to the broad language of
Second, Alonso relies on the language of
In determining whether a[] [noncitizen] has demonstrated that the [noncitizen]‘s life or freedom would be threatened for a reason described in subparagraph (A), the trier of fact shall determine whether the noncitizen has sustained the noncitizen‘s burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 1158(b)(1)(B) of this title.
These arguments are unpersuasive. In Alvarado-Herrera, we concluded that “the most that can be said at step one of the Chevron analysis is that
Nor does the “trier of fact” language in
Alonso‘s arguments do not undermine our analysis in Alvarado-Herrera. We follow Alvarado-Herrera and hold that the reasonable fear screening process is consistent with the statutory provisions.
V.
In sum, we conclude that the thirty-day deadline provision is a non-jurisdictional rule, and that Ortiz-Alfaro remains valid precedent, so the thirty-day deadline commences upon the conclusion of reasonable fear proceedings. Alonso‘s petition for review was therefore timely. On the merits, we deny Alonso‘s petition for review.
PETITION DENIED.