JOSE ANTONIO MARTINEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 22-1221
United States Court of Appeals, Fourth Circuit
November 16, 2023
Certiorari granted by Supreme Court, June 30, 2025
Vacated and remanded by Supreme Court, June 30, 2025
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1221
JOSE ANTONIO MARTINEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
------------------------------------
AMERICAN CIVIL LIBERTIES UNION,
Amicus Supporting Jurisdiction,
and
PIERRE RILEY,
Amicus Supporting Petitioner.
Argued: May 3, 2023 Decided: November 16, 2023
Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit Judge.
Dismissed by published opinion. Judge Rushing wrote the majority opinion, in which Chief Judge Diaz joined. Senior Judge Floyd wrote an opinion concurring in the judgment.
ARGUED: Michael Evertsen Ward, ALSTON & BIRD, LLP, Washington, D.C., for Petitioner. Robert Dale Tennyson, Jr., UNITED STATES DEPARTMENT OF
RUSHING, Circuit Judge:
After Jose Antonio Martinez illegally reentered the United States, the Department of Homeland Security (DHS) reinstated the removal order previously entered against him. Martinez expressed fear of returning to his native country and was placed in withholding-only proceedings. The immigration judge and the Board of Immigration Appeals denied relief, and Martinez petitioned our Court for review within 30 days of the Board’s decision. But that decision was not a “final order of removal.”
I.
Martinez, a native and citizen of Honduras, entered the United States without inspection in 2004. DHS apprehended him in 2013 and placed him in removal proceedings. During those proceedings, Martinez expressed fear of the gangs in Honduras, who had targeted and killed his family members. He also admitted that, before he came to the United States, he had killed a man with a machete, was convicted of homicide, and spent seven years in prison as a result. An immigration judge ordered Martinez removed in 2018, and DHS removed him to Honduras in early 2019.
Two months later, Martinez illegally reentered the United States. DHS apprehended him again in 2020. Because Martinez had already been ordered removed, he was subject to the streamlined removal process for illegal reentrants.1
In such cases, “the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed.”
Although an illegal reentrant may not challenge a reinstated removal order and may not pursue discretionary relief like asylum, see
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The process for seeking statutory withholding or CAT protection goes as follows. When an alien subject to a reinstated removal order expresses fear of returning to his native country, an asylum officer will interview him.
with the asylum officer, the alien is removed. Id. § 1208.31(g)(1). But if the immigration judge concludes that the alien does have a reasonable fear, then the immigration judge will conduct withholding-only proceedings to consider in full the alien’s claim to withholding of removal or CAT protection. Id. § 1208.31(g)(2). A dissatisfied litigant can appeal the immigration judge’s withholding-only decision to the Board. Id. § 1208.31(e), (g)(2)(ii).
In this case, the immigration officer reinstated Martinez’s order of removal on January 15, 2020. Martinez did not contest the immigration officer’s determination, but he expressed fear of persecution or torture in Honduras. The asylum officer interviewed Martinez and determined he had not established a reasonable fear of persecution or torture. Martinez sought review of that decision, and the immigration judge disagreed with the asylum officer, concluding that Martinez had shown a reasonable fear. As a result, Martinez’s case was moved to withholding-only proceedings to determine whether he was entitled to statutory withholding or CAT protection.
Martinez appealed, and on February 25, 2022, the Board affirmed. On March 3, 2022, Martinez filed a petition for review with this Court.
II.
We have an independent obligation to assure ourselves of jurisdiction to decide an appeal. See Sprint Nextel Corp. v. Wireless Buybacks Holdings, LLC, 938 F.3d 113, 122 (4th Cir. 2019). After receiving supplemental briefs from the parties on this topic, we conclude that we lack jurisdiction to resolve Martinez’s petition for review because he did not file it within 30 days of a final order of removal.
A.
We begin with the INA.
fact . . . arising from any action taken or proceeding brought to remove [the] alien from the United States.”
To obtain judicial review, an alien must file a petition for review within 30 days “of the final order of removal.” Id. § 1252(b)(1); see id. § 1252(a)(5) (“[A] petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal.”). The 30-day deadline is “‘mandatory and jurisdictional’ and is ‘not subject to equitable tolling.’”3 Santos-de Jimenez v. Garland, 53 F.4th 173, 174 (4th Cir. 2022) (quoting Stone v. INS, 514 U.S. 386, 405 (1995)).
More than three months after oral argument, the Government expanded its request for supplemental briefing. In a Notice of Supplemental Authority, the Government renounced its prior position on jurisdiction and adopted the opposite argument, asserting that we do have jurisdiction over this petition and asking to develop its new argument in the previously requested supplemental briefing. Our denial of the Government’s motion for supplemental briefing disposes of this request as well.
B.
Martinez’s petition does not satisfy these jurisdictional requirements because it was not filed within 30 days of a final order of removal. Three orders are potentially relevant here; we consider each possibility in turn.
1.
Consider first the Board’s February 2022 withholding-only order, which denied Martinez statutory withholding and CAT relief. Martinez filed his petition for review within 30 days of that order. But it is not a final order of removal.
“A CAT order is not itself a final order of removal,” Nasrallah v. Barr, 140 S. Ct. 1683, 1691 (2020), and neither is a statutory withholding order, see Guzman Chavez, 141 S. Ct. at 2287 (“[R]emoval orders and withholding-only proceedings address two distinct questions.”). Neither order “conclude[s] that the alien is deportable or order[s] deportation.”
Patel v. Garland, 32 F.4th 180, 190 (2d Cir. 2022) (“Decisions made during withholding-only proceedings cannot qualify as orders of removal.”).
Although statutory withholding and CAT orders are not themselves orders of removal, we nevertheless may review them as part of our review of a final order of removal. See
2.
Next take Martinez’s 2018 removal order. It obviously qualifies as a final order of removal, because it “conclude[ed] that [Martinez] is deportable or order[ed] deportation.”
3.
That leaves the 2020 decision reinstating Martinez’s 2018 removal order, which we will call the reinstatement decision. Here we face two questions: First, is a reinstatement decision an order of removal? And second, when does a reinstatement decision become final?
We need not resolve the first question today. Our Court has previously exercised jurisdiction over petitions filed by aliens subject to reinstated removal orders, accepting the Government’s position that a reinstatement decision is an “order of removal.” Velasquez-
Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir. 2001). Two of our sister circuits have questioned their similar precedents in view of more recent Supreme Court decisions. See Ruiz-Perez v. Garland, 49 F.4th 972, 976 (5th Cir. 2022); Bhaktibhai-Patel, 32 F.4th at 195–196. But we need not delve into that issue here. We can assume that a reinstatement decision is an order of removal and move on to the dispositive question of finality.
So, when does a reinstatement decision become final? The INA says a removal order becomes final upon the earlier of (1) “a determination by the Board of Immigration Appeals affirming such order,” or (2) “the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.”
Even if we looked to general principles of administrative law as amici suggest, we would likely reach the same destination. A reinstatement decision is “the consummation of the agency’s decisionmaking process” when it comes to illegal reentrants and determines their “rights or obligations” with respect to remaining in the United States. Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal quotation marks omitted). As we explain below, the Supreme Court has rejected the view that a reinstatement decision is not final until withholding-only proceedings are complete. Those proceedings do not affect whether an alien is removable but only where he may be sent.
a similar view, explaining that “the definition at
Martinez and his amici contend that finality is different for illegal reentrants
The Supreme Court has clarified in Nasrallah and Guzman Chavez that “removal orders and withholding-only proceedings address two distinct questions.” Guzman Chavez, 141 S. Ct. at 2287; see Nasrallah, 140 S. Ct. at 1691 (discussing CAT orders). A removal order decides whether the alien should be removed from the United States; statutory withholding and CAT orders take the alien’s removability as a given and decide only where the alien may be removed to. Nasrallah, 140 S. Ct. at 1691; Guzman Chavez, 141 S. Ct. at 2285. 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.’” Guzman Chavez, 141 S. Ct. at 2288 (quoting Nasrallah, 140 S. Ct. at 1691). As a result, removal orders and withholding-only proceedings “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.” Id. at 2287. Likewise, “an alien’s initiation of withholding-only proceedings does not render non-final an otherwise ‘administratively final’ reinstated order of removal.” Id. at 2288.
Martinez counters that Guzman Chavez did not address whether an order of removal is final for purposes of judicial review under
Our Court has squarely rejected that position. In Guzman Chavez, we held that finality for purposes of
reversing our opinion, the Supreme Court did not disturb that ruling. See, e.g., Guzman Chavez, 141 S. Ct. at 2285 n.6. Indeed, although Nasrallah and Guzman Chavez did not address jurisdiction under
applies here. An order that does not affect an alien’s removability—like statutory withholding and CAT relief—cannot affect the finality of the removal order.
The Second and Fifth Circuits have reached the same conclusion, overturning their contrary precedent. In Argueta-Hernandez v. Garland, the Fifth Circuit held that a reinstatement decision “becomes final the moment the prior order is reinstated.” 73 F.4th at 303. The court concluded that Nasrallah and Guzman Chavez “implicitly overruled” that circuit’s precedent holding that a reinstatement decision is not final until withholding-only proceedings have ended. Id. (internal quotation marks omitted). Because the withholding-only order itself was not an order of removal, the Fifth Circuit found the petition for review in that case untimely and dismissed for lack of jurisdiction. Id. at 302, 304.
Similarly, in Bhaktibhai-Patel v. Garland, the Second Circuit concluded that the petitioner did not challenge any judicially reviewable final order of removal. 32 F.4th at 190. In view of Nasrallah and Guzman Chavez, the court reasoned that “[d]ecisions made during withholding-only proceedings,” including the immigration judge’s negative reasonable fear determination in that case, “cannot qualify as orders of removal.” Id. Overturning its precedent, the Second Circuit also held that withholding-only proceedings “do not impact the finality of an order of removal for the purpose of judicial review under
We agree with the Second and Fifth Circuits that withholding-only orders do not affect the finality of a decision reinstating a prior order of removal. See also Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1148 (10th Cir. 2023) (Tymkovich, J., concurring) (reasoning that Nasrallah and Guzman Chavez “seriously undermined” Tenth Circuit precedent about the finality of reinstated removal orders and calling for that court to reevaluate its precedent en banc). Martinez notes that the Ninth Circuit has concluded its precedent—holding that a reinstated removal order does not become final until the completion of withholding-only proceedings—is not “clearly irreconcilable” with Nasrallah and Guzman Chavez. Alonso-Juarez v. Garland, 80 F.4th 1039, 1043 (9th Cir. 2023) (internal quotation marks omitted). As the Ninth Circuit explained, its precedent distinguishes between finality for purposes of
Nor does our decision in Tomas-Ramos compel a contrary conclusion. As Martinez points out, there we exercised jurisdiction over a petition for review that was filed more than a year after a reinstatement decision. See Tomas-Ramos, 24 F.4th at 979–980. But the Court did not address its jurisdiction in Tomas-Ramos. And “[w]hen a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144 (2011); cf. United States v. Campbell, 22 F.4th 438, 448 (4th Cir.
2022) (reasoning that questions which “merely lurk in the record,” “neither brought to the attention of the court nor ruled upon,” are “not to be considered as having been so decided as to constitute precedents” (internal quotation marks omitted)). To be sure, the Court explained that the decision of the immigration judge in that case, rather than a Board decision, was the agency’s final word because “the streamlined process that governs reasonable fear determinations does not include an appeal to the Board.” Tomas-Ramos, 24 F.4th at 980 n.3. But nowhere did the Court address its jurisdiction or whether withholding-only proceedings affect the finality of a reinstatement decision.
Martinez and his amici also emphasize the “strong presumption” in favor of judicial review of agency action. Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021). And while we are mindful of the presumption, it “is just that—a presumption.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984). Like other default rules used in interpreting statutes, the presumption recedes when “the statute’s ‘language or structure’” is to the contrary. Salinas, 141 S. Ct. at 698 (quoting Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015)). The language and structure of
C.
Applying these principles, Martinez’s petition for review was untimely and we lack jurisdiction to consider it. The immigration officer reinstated Martinez’s 2018 removal order on January 15, 2020. The same day, Martinez elected not to contest the immigration
officer’s determination and the reinstatement decision became final. Martinez then had 30 days to file his petition for review. But he filed his petition over two years later, in March 2022. The pendency of his withholding-only proceedings did not extend his time to file. So his petition for review was untimely.
As a fallback position, Martinez and his amici ask us to apply our jurisdictional ruling only to future cases but not in this case. They claim that applying our decision here would violate Martinez’s due process rights because he filed his petition in accord with what he understood to be the applicable law at the time. This argument essentially requests an equitable
In a variation on that theme, Martinez invites us to apply the factors identified in Chevron Oil v. Huson, 404 U.S. 97, 106–107 (1971), for assessing the retroactive
application of a judicial ruling regarding a statute of limitations. We have observed that subsequent Supreme Court precedent “cast serious doubt upon the practice of departing from the traditional rule of retroactive applications,” even questioning whether Chevron Oil “has lost all vitality” in view of later cases. Fairfax Covenant Church v. Fairfax Cnty. Sch. Bd., 17 F.3d 703, 710 (4th Cir. 1994). But regardless of the merits of Chevron Oil, courts have rightly refused to apply that framework to jurisdictional decisions. See Nunez-Reyes v. Holder, 646 F.3d 684, 691 (9th Cir. 2011) (en banc) (“[I]n cases in which the new rule of law strips the courts of jurisdiction, the courts must apply that new rule of law retroactively.”); see also Felzen v. Andreas, 134 F.3d 873, 877 (7th Cir. 1998). Chevron Oil was meant to address the “substantial inequitable results” that would occur if the Court applied its statute of limitations decision retroactively. 404 U.S. at 108. But “[e]quitable considerations are altogether irrelevant when a court lacks adjudicatory power.” Felzen, 134 F.3d at 877.
III.
The INA deprives us of jurisdiction to resolve Martinez’s petition for judicial review. Martinez did not file his petition within 30 days of any final order of removal, and precedent dictates that the statutory filing deadline is jurisdictional. Accordingly, the petition for review and Martinez’s related motion for judicial notice are
DISMISSED.
JOSE ANTONIO MARTINEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 22-1221
United States Court of Appeals, Fourth Circuit
November 16, 2023
FLOYD, Senior Circuit Judge, concurring in the judgment:
Today’s decision aligns with prior pronouncements of this Court in which we described the 30-day deadline as both “mandatory and jurisdictional.” See, e.g., Salgado v. Garland, 69 F.4th 179, 181 & n.1 (4th Cir. 2023); Santos-de Jimenez v. Garland, 53 F.4th 173, 174 (4th Cir. 2022). But the Supreme Court recently cast doubt on our characterization of the deadline as “jurisdictional.” After we heard oral argument in this case, the Supreme Court decided Santos-Zacaria v. Garland, 598 U.S. 411 (2023), which clarified when rules are to be deemed jurisdictional. Santos-Zacaria dealt with a different subsection of
The Supreme Court in Santos-Zacaria concluded that
state that “no court shall have jurisdiction” or “the court shall not have jurisdiction” to review certain matters. Id. at 418–19.1
Both rationales apply here. Beginning with the second, in both
Thus, Santos-Zacaria calls into question our treatment of the 30-day deadline as jurisdictional. This Court has relied on Stone v. INS, 514 U.S. 386 (1995), to treat the
deadline as jurisdictional. See, e.g., ante at 8 & n.3. But Stone predates a recent line of cases, beginning with Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), that brought “some discipline” to the use of the term “jurisdictional” after courts too loosely applied the term to mandatory rules. Santos-Zacaria, 598 U.S. at 421 (quoting Henderson, 562 U.S. at 435). The Supreme Court has repeatedly confirmed since then that “[j]urisdictional requirements mark the bounds of a ‘court’s adjudicatory authority.’” Boechler, P.C. v. Comm’r of Internal Revenue, 596 U.S. 199, 203 (2022) (quoting Kontrick, 540 U.S. at 455) (30-day limit to file petition for
In short, both the exhaustion requirement of
The majority may be correct that Martinez did not timely file his petition within 30 days of a final order of removal. It is probably true that statutory withholding of removal
and relief under the Convention Against Torture do not affect the underlying “final order of removal.” See ante at 15. But that conclusion does not address whether the 30-day rule is jurisdictional. Santos-Zacaria strongly suggests it is not. It makes sense that our adjudicatory power would exist independent of a petitioner’s compliance with filing deadlines. This Court’s jurisdiction is not a light switch that suddenly turns off on day 31.
Today’s decision will have serious consequences on future petitioners.2 It means they cannot obtain judicial review when, for instance, reinstatement proceedings violate their due process rights. Today’s decision also departs from the “well-settled” and “strong presumption” favoring judicial review of administrative action, including in the immigration context. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020) (quoting McNary v. Haitian Refugee Ctr. Inc., 498 U.S. 479, 496, 498 (1991)). And the absence of judicial review makes little sense when considering that withholding and CAT proceedings often take months or even years to conclude—long past the 30-day mark. In
That said, I respectfully concur in the judgment, recognizing this panel is bound by this Court’s previous treatment of