NIKOLAY M. KOLOV v. MERRICK B. GARLAND, Attorney General
No. 22-3760
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 18, 2023
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 23a0186p.06.
Before: GIBBONS, LARSEN, and MURPHY, Circuit Judges.
COUNSEL
ON BRIEF: Michael E. Piston, PISTON AND CARPENTER P.C., Troy, Michigan, for Petitioner. Jeffery R. Leist, Anthony C. Payne, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
GIBBONS, J., delivered the opinion of the court in which LARSEN and MURPHY, JJ., joined. MURPHY, J. (pp. 15-25), delivered a separate concurring opinion.
OPINION
JULIA SMITH GIBBONS, Circuit Judge. Nikolay Kolov, a native and citizen of Bulgaria, petitions for review of the Board of Immigration Appeals’ (“BIA“) decision affirming an Immigration Judge‘s (“IJ“) denial of withholding of removal and protection under the Convention Against Torture (“CAT“). The BIA upheld the IJ‘s determination that Kolov did not present a credible claim because parts of his testimony before the IJ were not disclosed in his reasonable fear interview, written application,
I.
Nikolay Kolov first sought admission to the United States in 1999. He was placed in removal proceedings but sought asylum and related protections. After he failed to credibly demonstrate eligibility for protection, Kolov was ordered removed. The BIA denied Kolov‘s appeal, and we denied his petition for review. Kolov was removed to Bulgaria in February 2012.
In November 2014, Kolov reentered the United States and was apprehended by DHS. Kolov‘s prior removal order was reinstated, but he expressed fear about returning to Bulgaria. Consequently, he was interviewed in January 2015 to determine whether he reasonably feared persecution in Bulgaria. In this interview, Kolov indicated that he was a member of the “Roma” ethnic group. CA6 R. 7-2, Reasonable Fear Questions & Answers, Admin R. 578, 581. Based on his ethnicity, Kolov reported that he had been subjected to harassment, abuse, and physical violence in Bulgaria.
To illustrate his claim, Kolov recounted several incidents of such treatment. He recalled that government officials made derogatory comments about his ethnicity at the airport when he returned to Bulgaria in 2012. Kolov also reported that in September 2014, two men recognized him as Roma and attacked him while he waited in line to pay for breakfast. The assailants hit Kolov, causing him to fall to the ground, and the men then repeatedly kicked him. Kolov noted that police officers were standing nearby when the attack happened and did not intervene or render aid, so he did not report the incident because he believed that the police were not interested in protecting the Roma.
Kolov also described two incidents from June 2014. In the first, he was waiting at the bus station with other Roma, and a group of Bulgarians came over and said that “Roma‘s [sic] didn‘t deserve to be living.” Id. at 580. Kolov ran, but one of the other Roma individuals was kicked. Kolov reported the incident to the authorities, but no police action followed. In the second incident, Kolov attempted to call a taxi while out shopping, but people at the taxi stand called him an ethnic slur and said that he had no right to shop at the store. Id. at 580. Kolov jumped into a taxi to escape. Kolov submitted a written police report about the interaction, indicating that he had been verbally harassed based on his race and believed that he would have been physically attacked if he had stayed at the scene. According to Kolov, the officer threw his written report into the garbage, saying that it was not enough to file a complaint.
At the end of the interview, the interviewer asked Kolov whether “there [is] any other information regarding your request for withholding of removal that we did not discuss?” Id. at 584. Kolov responded, “No.” Id. Then, the asylum officer summarized the incidents that Kolov had described and asked Kolov whether the summary was correct. Kolov responded, “Yes.” Id. at 585. Based on the information that Kolov provided, the asylum officer determined that he presented a reasonable fear of persecution or torture and referred his case to an immigration judge for withholding-only proceedings.
In the lead-up to his hearing, Kolov submitted a Form I-589, an application for withholding of removal, prepared with the help of counsel in May 2015.1 Kolov‘s application
In a declaration attached to his application, Kolov provided additional details about the incidents of mistreatment identified in his interview and Form I-589. For the first time, however, Kolov also described an incident from November 2013. He explained that he and friends had left a restaurant when four Bulgarian men began harassing them for being Roma. One of the men spit on Kolov and tried to punch him, causing Kolov to trip and fall to the ground as he
attempted to avoid being hit. While he was on the ground, the four men repeatedly kicked Kolov, causing Kolov‘s nose and lip to bleed. Kolov went to the emergency room but was told that his injuries did not require treatment. Despite Kolov‘s initial intent to do so, his friends convinced him not to report the incident to the police because they believed that the report would be ignored.
At his May 2019 hearing before the IJ, Kolov was represented by counsel and testified in English.2 At the outset of his testimony, Kolov stated that he is Roma and suffered harm in Bulgaria due to his ethnicity. When probed about specific incidents of harm, Kolov described his interaction with immigration officials at the airport in 2012, the incident at the bus station in June 2014, and the attack in the breakfast line in September 2014.
Kolov also spoke about the November 2013 altercation—the one mentioned for the first time in his declaration—that began as he and friends were leaving a restaurant. His account matched his declaration; one of the assailants spit on him and tried to punch him, Kolov fell while trying to avoid getting hit, and the attackers repeatedly kicked him while he was on the ground. He went to the emergency room to seek care but was told that he did not have injuries serious enough to require treatment.
Additionally, Kolov recounted an incident from May 2012, claiming that he and his cousin were called derogatory names, pushed to the ground, and kicked. Kolov‘s nose began bleeding from the attack, so he went into a coffee shop to clean his face before returning home. The hearing was the first time that Kolov disclosed this incident; he had not mentioned it in his interview, Form I-589, or declaration.3
In its questioning of Kolov, the government asked why he did not mention the November 2013 attack in his interview or the May 2012 attack in his interview, application, or declaration. Kolov responded that he was nervous and under stress during his interview and that the progression of the conversation prevented him from
In June 2019, the IJ denied Kolov‘s application for withholding of removal and CAT protection. The IJ found that Kolov credibly established his Roma ethnicity but was not credible regarding the alleged incidents of persecution. Specifically, the IJ found that “material information concerning [his] claim was missing from the reasonable fear interview, his statement, and the 589 that related to the May of 2012 incident and then the severity of the November 2013 incident was not discussed and explicated.” CA6 R. 7-2, Decision of IJ, Admin. R. 40. Further, the IJ dismissed Kolov‘s explanation for the omissions, that he was nervous and under stress, as “not credible.” Id. For his CAT claim, the IJ concluded that Kolov failed to show government acquiescence to torture.
Kolov appealed to the BIA, contesting the IJ‘s credibility finding. He argued that he testified consistently about the May 2012 and November 2013 incidents and that he had submitted corroborating evidence to support his testimony. He also noted that he prepared his declaration in English without assistance.
The BIA dismissed the appeal, finding no clear error in the IJ‘s adverse credibility determination. In sum, the BIA found that Kolov‘s omissions were substantially related to his claim and rendered him not credible. Like the IJ, the BIA believed that Kolov‘s omission of the May 2012 attack in his interview, Form I-589, and declaration in addition to the omission of the November 2013 attack in his interview undermined his credibility. The BIA also agreed with the IJ that Kolov‘s explanation for the omissions was not persuasive. Accordingly, the BIA upheld the IJ‘s denial of Kolov‘s claims based on his failure to present a credible claim for relief.
Kolov now petitions for review of the BIA‘s decision. Kolov argues that the IJ and BIA erred as a matter of law in their adverse credibility finding because his omissions did not directly contradict his later testimony.
II.
We first address our jurisdiction, and we begin with some background. The
In addition to mandating an expedited removal process, the INA limits an individual‘s ability to challenge the reinstated removal order. The reinstated removal order is not subject to review, and the individual may not obtain “discretionary relief from the terms of the reinstated order.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006);
We turn back to Kolov‘s case. Our jurisdiction over Kolov‘s petition depends on the interplay between two aspects of our power to review orders of removal. First, we may review only a “final order of removal.”
The government initially contended that Kolov‘s petition is untimely, depriving us of jurisdiction. The government‘s position was that Kolov did not timely petition for review of his reinstated removal order (from November 2014) and that the BIA‘s later denial of withholding of removal (from August 2022) is not itself a “final order of removal” that carries its own thirty-day period to petition for review.4 The Second and Fifth Circuits recently adopted this view in Bhaktibhai-Patel v. Garland, 32 F.4th 180 (2d Cir. 2022), and Argueta-Hernandez v. Garland, 73 F.4th 300 (5th Cir. 2023) (per curiam), respectively, both grounding their analysis in the Supreme Court‘s decisions in Nasrallah v. Barr, 140 S. Ct. 1683 (2020), and Johnson v. Guzman Chavez, 141 S. Ct. at 2271.
In Nasrallah, a noncitizen committed a crime that subjected him to removal; during the removal proceedings, he asserted claims under the CAT. Id. at 1688. The BIA concluded that the noncitizen did not establish that he would likely be tortured if removed and ordered his removal. Id. On appeal, the Eleventh Circuit declined to review the noncitizen‘s factual challenges to the BIA‘s CAT order, explaining that “judicial review of factual challenges to a final order of removal” was unavailable to noncitizens convicted of specified crimes. Id. at 1689 (internal quotation marks omitted). The Eleventh Circuit concluded that the prohibition
extended to factual challenges to CAT orders raised in the same proceedings. Id. The Supreme Court reversed, holding that the statutory prohibition on factual challenges
Then, in Johnson, noncitizens were detained without bond hearings during the time between the reinstatement of their removal orders and the hearings on their withholding of removal claims. Id. at 2283. The Supreme Court considered which statute applied—the one requiring bond hearings for noncitizens detained “pending a decision on whether the alien is to be removed,” or the one carrying no such requirement for those already “ordered removed.” Id. at 2280. The latter statute applied in this context if a reinstated order of removal was “administratively final” during the period that a noncitizen sought withholding-only relief. Id. at 2284; see
The Second Circuit recently concluded that Nasrallah and Johnson precluded review of the BIA‘s denial of withholding-only relief following a reinstated removal order. It reasoned that Nasrallah and Johnson clarified that orders denying withholding of removal and CAT protection are not “final orders of removal” that are judicially reviewable under
Unlike our sister circuits,6 we remain bound by circuit precedent permitting
subject to judicial review. Notably, moreover, the Supreme Court expressly refused to consider this judicial-review issue in Johnson, so that decision does not undermine our logic in Martinez. 141 S. Ct. at 2285 n.6.
Martinez‘s logic also comports with our earlier precedent. Outside the present context involving reinstated orders of removal and withholding-only proceedings under
III.
For a successful withholding of removal claim, an applicant must establish by a “clear probability” that his or her life or freedom would be threatened in the designated country on account of a statutorily protected ground. Berri v. Gonzalez, 468 F.3d 390, 397 (6th Cir. 2006) (citation omitted);
We apply the same standard of review to withholding of removal claims and requests for protection under the CAT. Kamar v. Sessions, 875 F.3d 811, 817 (6th Cir. 2017). When the BIA issues a written opinion, we review the decision of the BIA “as the final agency determination.” Umana-Ramos v. Holder, 724 F.3d 667, 670 (6th Cir. 2013) (quoting Hachem v. Holder, 656 F.3d 430, 437 (6th Cir. 2011)). To the extent that the BIA adopts the IJ‘s reasoning, we also review the IJ‘s decision. Id.
Since the REAL ID Act, an IJ assessing the credibility of a petitioner seeking withholding of removal and CAT protection considers the totality of the circumstances. See
Credibility determinations are findings of fact. Marikasi v. Lynch, 840 F.3d 281, 287 (6th Cir. 2016) (quoting Sylla v. I.N.S., 388 F.3d 924, 925 (6th Cir. 2004)). We review factual findings under the deferential substantial evidence standard, considering whether they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (citation omitted). Under this standard, we may not reverse simply because we would have come to a different conclusion. Sylla, 388 F.3d at 925. Instead, we will not disturb the agency‘s factual findings “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Nasrallah, 140 S. Ct. at 1692 (quoting
The IJ found Kolov not credible, pointing to his omission of the May 2012 and November 2013 incidents in his interview and Form I-589. The BIA upheld the IJ‘s findings, agreeing that Kolov‘s later addition of the two incidents discredited his claims.
Kolov has not presented evidence that would compel a reasonable adjudicator to disagree with the IJ‘s finding. The thrust of his argument is that the omissions did not directly contradict his later testimony and thus cannot be the basis of an adverse credibility finding. Specifically, Kolov asserts that the BIA misapplied our decision in Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005). According to Kolov, under Liti, only an omission that directly contradicts later testimony can support an adverse credibility determination.
We disagree with Kolov‘s reading of Liti. In Liti,7 we reviewed an adverse
In doing so, we acknowledged that the Litis’ application “did not provide specific details of the two events” but noted that “the application [did] not contain any specific incidents, but rather consist[ed] of generalized statements of the Litis’ anti-communist activities.” Id. at 638. That is, the Litis wrote in their application that they had taken part in numerous anti-government activities over the course of six years, intimating that they could not recount each occurrence of government retaliation in response to their long history of political protest. Id. We concluded that the Litis’ later elaboration on their “generalized statements” did not contradict their written
application; it instead reinforced “their claim of a long history of political protest which [could not] be limited to a few specific instances.” Id. Because the Litis’ later inclusion of specific incidents did not contradict their earlier generalized statements, we concluded that the BIA‘s adverse credibility finding was unsupported by the record. Id. at 639.
Despite our reversal of the Litis’ adverse credibility finding, we did not set forth a bright-line rule that only directly contradictory omissions warrant an adverse credibility finding. Instead, we held that the Litis’ particular omissions did not suffice within the context of their application. Id. at 638-39.
Kolov‘s omissions, however, differ in important respects. Kolov claimed that he suffered ethnic persecution in Bulgaria, which he supported by cataloging specific incidents. Kolov described several incidents of harassment or violence in his interview, but he failed to mention the November 2013 restaurant incident or the May 2012 coffee shop incident. Kolov also failed to include either incident in his Form I-589, despite describing several other incidents within his application. He did include the November 2013 incident in his attached declaration, but he still did not mention the events from May 2012.
When questioned about these omissions, Kolov claimed that the flow of the interview did not give him an opportunity to disclose the incidents. But before the asylum officer wrapped up the interview, she asked Kolov whether he had any additional information that they had not discussed, and he responded that he did not. And when the officer asked whether the summary of Kolov‘s claims was accurate, he indicated that it was. These prompts discredit Kolov‘s contention that he had no opportunity to mention the November 2013 or May 2012 incident during the interview.
Considering the totality of the circumstances, the record supports the BIA‘s adverse credibility finding. Unlike in Liti, Kolov‘s testimony did not simply add form and detail to generalized statements in his written application. Instead, from the outset, Kolov‘s claim was built on identifying specific incidents of harassment and asserting that they amounted to persecution.
IV.
We deny the petition for review.
CONCURRENCE
MURPHY, Circuit Judge, concurring. This case shows that there might be a “butterfly effect” in law, not just nature. Congress permits immigrants in removal proceedings to obtain judicial review of just one thing: a “final order of removal.”
Courts traditionally read the phrase “final order of removal” (or its predecessor, “final order of deportation“) broadly to cover the rejection of many types of claims in removal proceedings. Yet two recent decisions on unrelated issues—Nasrallah v. Barr, 140 S. Ct. 1683 (2020), and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021)—may have (intentionally or not) uprooted this traditional view. These decisions implicate two questions critical to any petition for review: What orders qualify as the “orders of removal” from which immigrants may seek review? And when do those orders become “final“? Given the emerging conflict on the effect of these decisions, the Supreme Court may eventually have to intervene. Compare Argueta-Hernandez v. Garland, 73 F.4th 300, 302-03 (5th Cir. 2023) (per curiam); and Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190-95 (2d Cir. 2022), with Arostegui-Maldonado v. Garland, ___ F.4th ___, 2023 WL 4880441, at *5-6 (10th Cir. Aug. 1, 2023), and Salinas-Montenegro v. Garland, 2023 WL 3243985, at *1 n.1 (9th Cir. May 4, 2023) (mem.). In the meantime, I agree that we should stick with our current approach. I write to flag some contexts in which Nasrallah and Johnson might matter.
1. Traditional Interpretation of Judicial-Review Provision
In 1961, Congress amended the Immigration and Nationality Act to give circuit courts the “exclusive” power to review “all final orders of deportation[.]” Act of Sept. 26, 1961, Pub. L. No. 87-301, § 5(a), 75 Stat. 651 (codified at 8 U.S.C. § 1105a(a) (1964)). At that time, Congress left the phrase “final order of deportation” undefined.
The Supreme Court and our court interpreted the phrase broadly. See Foti v. INS, 375 U.S. 217, 222 (1963); Perkovic v. INS, 33 F.3d 615, 618 (6th Cir. 1994). The Supreme Court held that “final order of deportation” included (and gave circuit courts the power to review) more than just the “adjudication of deportability” (that is, the finding that an immigrant was deportable). Foti, 375 U.S. at 222. The Court read the phrase to include other decisions made during a deportation proceeding,
If this precedent governed here, nobody would question our jurisdiction over Nikolay Kolov‘s petition for review. After the government removed Kolov to Bulgaria, he returned to this country. An immigration officer found him removable and reinstated his prior order of removal.
2. Congress‘s 1996 Changes
In 1996, however, Congress passed two laws that revamped this review framework. In the
Next, in the
3. Judicial Interpretation of 1996 Changes
In the years after these 1996 changes, courts seemingly continued to follow Foti‘s broad reading of “final order of removal.” They did so without giving much thought to AEDPA‘s new definitions of “final” and “order of deportation.” At least three examples prove my point.
Example One: Motions to Reopen. Under the Foti regime, the Supreme Court held that the denial of a motion to reopen a final order of deportation counted as a distinct “final order of deportation” reviewable by the courts. Cheng Fan Kwok, 392 U.S. at 211. In two cases after the 1996 changes, the Court continued to treat these denials as reviewable “final orders of removal” without asking whether they fit within AEDPA‘s definition. See Mata v. Lynch, 576 U.S. 143, 147-48 (2015) (citing Kucana v. Holder, 558 U.S. 233, 242, 253 (2010)). In one case, the Court held that courts had jurisdiction to review the Board‘s denial of an untimely motion to reopen. See id. at 147-51. In the other, it held that IIRIRA‘s ban on the review of the Board‘s discretionary decisions did not cover denials of motions to reopen. Kucana, 558 U.S. at 242-52.
Example Two: “Mixed” Board Decisions. In ordinary removal proceedings, the Board often affirms a conclusion that an immigrant is removable but remands for more proceedings on the immigrant‘s claims for withholding of removal under
Example Three: Withholding-Only Orders. IIRIRA amended the expedited removal process for immigrants like Kolov who return to the United States after the government has removed them. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33-35 (2006). This amendment instructed the Attorney General to “reinstate[]” “the prior
When an immigrant seeks withholding-only relief, what (if anything) counts as the “order of removal” and when does it become “final“? Most courts treated an order reinstating the removal order as a distinct “order of removal” even after AEDPA. See Moreno-Martinez v. Barr, 932 F.3d 461, 463-65 (6th Cir. 2019); Villegas de la Paz v. Holder, 640 F.3d 650, 654, 656 (6th Cir. 2010); see also Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003); Garcia-Villeda v. Mukasey, 531 F.3d 141, 150 (2d Cir. 2008); Dinnall v. Gonzales, 421 F.3d 247, 251 n.6 (3d Cir. 2005); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 294-45 (5th Cir. 2002); Gomez-Chavez v. Perryman, 308 F.3d 796, 801 (7th Cir. 2002); Briones-Sanchez v. Heinauer, 319 F.3d 324, 326 (8th Cir. 2003); Castro-Cortez v. INS, 239 F.3d 1037, 1043-44 (9th Cir. 2001), abrogated by Fernandez-Vargas, 548 U.S. at 36 n.5; Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir. 2003); Avila v. U.S. Att‘y Gen., 560 F.3d 1281, 1284 (11th Cir. 2009).
And most courts held that this unique order of removal became “final” (and so judicially reviewable) only after an immigrant litigated to the Board any claims for withholding of removal. See Ponce-Osorio v. Johnson, 824 F.3d 502, 505-06 (5th Cir. 2016) (per curiam); Ortiz-Alfaro v. Holder, 694 F.3d 955, 957-58 (9th Cir. 2012); Luna-Garcia v. Holder, 777 F.3d 1182, 1185 (10th Cir. 2015); Jimenez-Morales v. U.S. Att‘y Gen., 821 F.3d 1307, 1308 (11th Cir. 2016).
4. Effects of Nasrallah and Johnson
The Supreme Court‘s decisions in Nasrallah and Johnson implicate all three examples. In Nasrallah, the Board both affirmed an immigration judge‘s order finding an immigrant removable and reversed the judge‘s order granting the immigrant protection under CAT. 140 S. Ct. at 1688. The immigrant sought judicial review of the factual findings that led the Board to deny his CAT claim. Id. at 1688-89. Yet because the immigrant had been criminally convicted, AEDPA‘s jurisdictional limit barred the court from reviewing the factual findings underlying the “final order of removal.” See
The Court agreed. Id. at 1690-94. It held that a decision granting or denying CAT protection does not itself qualify as an “order of deportation” under AEDPA‘s definition because it does not “conclud[e]” that an immigrant is “deportable or order[] deportation” of the immigrant. Id. at 1692 (quoting
In Johnson, the Court next considered a question about the detention of immigrants like Kolov who have had their prior orders of removal reinstated and who seek withholding-only relief under
Nasrallah and Johnson did not consider the scope of our jurisdiction. But the decisions could affect all three examples that I have identified (and perhaps others).
Example One: Motions to Reopen. The Supreme Court‘s traditional view that the denial of a motion to reopen removal proceedings qualifies as a reviewable “final order of removal” has rested more on Foti‘s broad reading than on AEDPA‘s definition. The Court in Kucana even relied on pre-1996 cases as the support for its suggestion that courts retained jurisdiction over denials of motion to reopen after 1996. See 558 U.S. at 242. To be sure, one might have read AEDPA‘s generic definition of “order of deportation“—an “order” “concluding that the alien is deportable or ordering deportation,”
Nasrallah‘s logic thus calls into question our jurisdiction over denials of motions to reopen. Indeed, neither Mata nor Kucana even mentioned AEDPA‘s definition of “order of removal,” let alone considered whether the denial of a motion to reopen fell within the definition. The key question now will be whether such a denial qualifies as an “order” “concluding that the alien is deportable or ordering deportation” under Nasrallah‘s narrower view of that phrase.
Yet an immigrant‘s motion to reopen may often concede removability and challenge only an earlier denial of withholding
Example Two: “Mixed” Board Decisions. Nasrallah and Johnson also could alter how courts treat “mixed” Board decisions (decisions in ordinary removal proceedings that affirm an immigration judge‘s removability finding but remand for further consideration of withholding claims under
Yet Nasrallah and Johnson seemingly reject this reasoning. Nasrallah held that “the Board‘s ruling on a CAT claim does not affect the validity of the final order of removal” because the requested relief would only bar the immigrant‘s removal to a specific country. 140 S. Ct. at 1691. And Johnson likewise held that “the finality of [an] order of removal does not depend in any way on the outcome” of a withholding claim under
This logic has repercussions for both parts of a “mixed” Board decision: the part affirming removability and the part remanding withholding claims. Start with the part affirming removability. If it now qualifies as the “final” order under
Turn to the part remanding the withholding claims. Suppose the immigration judge later issues a second order denying withholding under
Example Three: Withholding-Only Orders. Nasrallah and Johnson lastly could alter how courts treat withholding-only proceedings. Courts typically held that an order reinstating a prior order of removal was not “final” if immigrants had pending applications for withholding under
That leaves two possibilities for why denials of withholding in withholding-only proceedings nevertheless remain reviewable. I find both debatable after Nasrallah and Johnson.
Possibility One: An immigrant might argue that the reinstated order of removal is not “final” for judicial-review purposes even if it is “administratively final” for Johnson‘s detention purposes. Following the Ninth Circuit, we adopted this reasoning in Martinez v. Larose, 968 F.3d 555, 562-63 (6th Cir. 2020). And perhaps we should interpret the word “final” in the judicial-review provision against the background of the final-judgment rule—which presumes that there will be one appeal at the end of proceedings rather than many appeals in “fits and starts” after each order. Kouambo, 943 F.3d at 211; see also Microsoft, 582 U.S. at 36-37. By comparison, this final-judgment background presumption would have no application for detention purposes. Moreover, even if the grant of withholding would not affect an immigrant‘s general removability, it would at least alter the terms of a removal order by barring removal to the specific country that the order lists—in Kolov‘s case, Bulgaria. A.R. 565. In that sense, the Board‘s decision affirming the denial of withholding can be seen as a “determination” “affirming” a reinstated removal order without change.
Possibility Two: Even if the reinstated order of removal is a “final order of removal” (subject to the 30-day petition-for-review window), the later order denying withholding in withholding-only proceedings could qualify as a separate “final order of removal.” In that respect, courts have reasoned that even the grant of withholding fits AEDPA‘s definition of “order of removal” given that the grant must contain an “explicit order of removal” because the government can remove the immigrant to other countries. Kouambo, 943 F.3d at 210 (quoting Matter of I-S & C-S-, 24 I. & N. Dec. 432, 434 (B.I.A. 2008)); see also Chupina, 570 F.3d at 104. The grant thus could be seen as an “order” “ordering deportation.”
For what it is worth, the Supreme Court might agree with one of these theories because it recently reviewed the denial of withholding in withholding-only proceedings. See Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1110-11 (2023). Then again, maybe not. Santos-Zacaria did not consider this jurisdictional issue. And the Court refuses to treat “drive-by” jurisdictional rulings as binding. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 91 (1998).
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In the end, whether the Supreme Court‘s decisions in Nasrallah and Johnson have ushered in these significant changes to longstanding judicial-review practices is for the Supreme Court to decide. Until it does, I agree that we should continue to follow our current approach.