Bhaktibhai-Patel v. Garland ( 2022 )

19-2565
Bhaktibhai-Patel v. Garland
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2020
No. 19-2565
PARESH KUMAR BHAKTIBHAI-PATEL,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order
of the Department of Homeland Security
ARGUED: DECEMBER 18, 2020
DECIDED: APRIL 27, 2022
Before: LIVINGSTON, Chief Judge, and PARK and MENASHI, Circuit
Judges.
Paresh Kumar Bhaktibhai-Patel petitions for review of an
immigration officer’s decision to reinstate a prior order of removal
against Bhaktibhai-Patel and for review of an immigration judge’s
subsequent decision that Bhaktibhai-Patel does not qualify to pursue
claims for withholding of removal to India. In light of recent Supreme
Court decisions, we DISMISS Bhaktibhai-Patel’s petition for lack of
jurisdiction. Bhaktibhai-Patel’s petition raises “questions of law and
fact ... arising from” efforts “to remove [him] from the United States”
but the petition does not, as it must, present us with a judicially
reviewable “final order [of removal].” 8 U.S.C. § 1252(b)(9).
ANNE E. DOEBLER, Buffalo, New York, for Petitioner.
YANAL H. YOUSEF, Trial Attorney, Office of Immigration
Litigation (Joseph H. Hunt, Assistant Attorney General,
Civil Division, Anthony P. Nicastro, Assistant Director,
Office of Immigration Litigation, on the brief), United
States Department of Justice, for Respondent.
MENASHI, Circuit Judge:
In the Immigration and Nationality Act (“INA”), Congress
granted Article III courts limited jurisdiction to review the Executive
Branch’s decisions in immigration cases. “Judicial review of all
questions of law and fact ... arising from any action taken or
proceeding brought to remove an alien from the United States under”
the INA is “available only in judicial review of a final order [of
removal].” 8 U.S.C. § 1252(b)(9). For such judicial review to be
available, a “petition for review must be filed not later than 30 days
after the date of the final order of removal.” Id. § 1252(b)(1). These two
rules deprive us of jurisdiction to consider the petition in this case.
Petitioner Paresh Kumar Bhaktibhai-Patel, a citizen of India,
was ordered removed from the United States in 2010 and then again
on March 25, 2016. Three years later, on March 8, 2019, Bhaktibhai-
2
Patel illegally reentered the country. The next day, a Department of
Homeland Security (“DHS”) immigration officer reinstated the 2016
removal order, thereby subjecting Bhaktibhai-Patel to removal from
the United States pursuant to 8 U.S.C. § 1231(a)(5). That statute
provides a summary removal process applicable to aliens who
illegally reenter the United States after having been ordered removed.
Bhaktibhai-Patel sought to avoid removal to India, but an
immigration judge determined that Bhaktibhai-Patel did not qualify
for an opportunity to pursue such withholding of removal.
Bhaktibhai-Patel then filed the petition for review that we
consider in this case, challenging the decisions to reinstate his 2016
order and to find him ineligible for withholding of removal. This
petition thus presents “questions of law and fact ... arising from an[]
action taken or proceeding brought to remove an alien from the
United States.” 8 U.S.C. § 1252(b)(9). Under the INA, we have
jurisdiction to consider “such questions” “only” if Bhaktibhai-Patel’s
petition allows us to exercise “judicial review of a final order [of
removal].” Id. The petition in this case does not. Bhaktibhai-Patel
needed to petition for review of any order of removal entered against
him “not later than 30 days after the date” that the order became
“final.” Id. § 1252(b)(1). Yet both Bhaktibhai-Patel’s 2016 order of
removal and DHS’s decision to reinstate that removal order became
final more than 30 days before he filed this petition. See Johnson v.
Guzman Chavez, 141 S. Ct. 2271, 2284-88 (2021). While Bhaktibhai-
Patel filed this petition within 30 days of the immigration judge’s
adverse withholding determination, that determination does not
qualify as an order of removal and does not fall within § 1252’s
jurisdictional grant. See id. at 2287-88. Accordingly, we dismiss
Bhaktibhai-Patel’s petition for lack of jurisdiction.
3
BACKGROUND
I
In 1996, Congress enacted an expedited procedure applicable
to aliens who illegally reenter the United States after having been
removed pursuant to an order of removal. That legislation provides
that “[i]f the Attorney General[1] 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.” Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”) of 1996, Pub. L. No. 104-208, div. C,
§ 305(a)(3), 110 Stat. 3009, 3009-599 (codified at 8 U.S.C. § 1231(a)(5)).
Congress further specified that such an “alien is not eligible and may
not apply for any relief under th[e] [INA], and the alien shall be
removed under the prior order at any time after the reentry.” Id. As
the Supreme Court has recognized, this provision “applies to all
illegal reentrants, and it explicitly insulates the removal orders from
review, while also generally foreclosing discretionary relief from the
terms of the reinstated order.” Johnson, 141 S. Ct. at 2282 (internal
quotation marks omitted); see also Herrera-Molina v. Holder, 597 F.3d
128, 139 (2d Cir. 2010) (observing that relief in the form of “asylum or
cancellation of removal[] is not available” to illegal reentrants).
The process for reinstating an illegal reentrant’s prior order of
removal is simple enough. “In short, the agency obtains the alien’s
prior order of removal, confirms the alien’s identity, determines
1 The Secretary of Homeland Security is now responsible for carrying out
this provision. See Homeland Security Act of 2002, Pub. L. No. 107-296,
§§ 101, 441, 471, 116 Stat. 2135, 2142, 2192, 2205.
4
whether the alien’s reentry was unauthorized, provides the alien with
written notice of its determination, allows the alien to contest that
determination, and then reinstates the order.” Johnson, 141 S. Ct. at
2282 (citing 8 C.F.R. §§ 241.8(a)-(c), 1241.8(a)-(c)). 2 But things get
slightly more complicated after that. While Congress explicitly denied
illegal reentrants “eligib[ility] ... for any relief under” the INA,
8 U.S.C. § 1231(a)(5), the government continues to comply with
international treaties that require the United States to forbear from
removing aliens to a specific country when either (1) the alien’s “life
or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion,” United Nations Convention Relating to the Status of
Refugees, art. 33, July 28, 1951, 189 U.N.T.S. 150, 176, 3 or (2) “there
are substantial grounds for believing that he would be in danger of
being subjected to torture” in that country, United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
2 The regulations relevant to reinstating orders of removal appear in both
Chapters I and V of Title 8 of the Code of Federal Regulations. For the
remainder of this opinion, we cite only the regulations in Chapter I (which
governs DHS) and omit parallel citations to Chapter V (which governs the
Executive Office of Immigration Review, a sub-agency of the Department
of Justice).
3 We call this form of relief from removal “statutory withholding.” The
United States agreed “to apply articles 2 to 34 inclusive” of the Convention
Relating to the Status of Refugees when it ratified the United Nations
Protocol Relating to the Status of Refugees, art. 1, November 1, 1968, 19
U.S.T. 6223. Accordingly, the INA provides in 8 U.S.C. § 1231(b)(3)(A) that
“the Attorney General may not remove an alien to a country if the Attorney
General decides” that persecution would occur there because of a protected
ground.
5
Treatment or Punishment (“CAT”), art. 3, December 10, 1984, 1465
U.N.T.S. 85, 114. 4
To ensure compliance with those treaties, the Attorney General
implemented a “screening process” for illegal reentrants that
“allow[s] for the fair and expeditious resolution” of statutory
withholding and CAT relief issues “without unduly disrupting the
streamlined removal processes applicable to” such reentrants.
Regulations Concerning the Convention Against Torture, 64 Fed. Reg.
8478, 8479 (Feb. 19, 1999). The screening process works as follows: If
an alien subject to a reinstated order of removal under § 1231(a)(5)
“expresses a fear of returning to the country designated in that
[reinstated] order,” that alien is “immediately referred to an asylum
officer for an interview to determine whether the alien has a
reasonable fear of persecution or torture.” 8 C.F.R. § 241.8(e). If the
asylum officer finds that such a reasonable fear exists, the alien is
referred to an immigration judge “for full consideration of the request
for withholding of removal only.” Id. § 208.31(e). If the asylum officer
determines that the alien “has not established a reasonable fear of
persecution or torture,” however, the alien may ask an immigration
judge to review only that specific determination. Id. § 208.31(f). “If the
immigration judge concurs with the asylum officer’s determination
that the alien does not have a reasonable fear of persecution or torture
... [n]o appeal shall lie” from that decision and “the case [is] returned
to DHS for removal of the alien.” Id. § 208.31(g)(1). If the immigration
4 We call this form of relief from removal “CAT relief.” See also 8 U.S.C.
§ 1231 note (directing executive agencies to implement the CAT); Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 35 n.4 (2006) (noting that despite “the
absolute terms in which the bar on relief” for illegal reentrants “is stated,”
an illegal reentrant still may seek statutory withholding or CAT relief).
6
judge disagrees with the asylum officer’s determination, the
immigration judge proceeds to determine the alien’s eligibility for
statutory withholding and CAT relief subject to the procedures
normally applicable to such requests. Id. § 208.31(g)(2). Courts refer
to the proceedings that occur pursuant to this screening process as
“withholding-only proceedings.” Johnson, 141 S. Ct. at 2282.
II
Petitioner Bhaktibhai-Patel, a citizen of India, was removed
from the United States in 2010 and again in 2017, the latter time
pursuant to a removal order entered on March 25, 2016. He illegally
reentered the United States on March 8, 2019, and was apprehended
the same day. 5 The next day, March 9, a DHS immigration officer
issued a “Notice of Intent/Decision to Reinstate” his 2016 order of
removal, which designated India as the country of removal. Cert.
Admin. R. 125.
Bhaktibhai-Patel expressed a fear of persecution and torture in
India based on his political views, triggering the protocol set out in
8 C.F.R. § 208.31. On June 14, 2019, an asylum officer interviewed
Bhaktibhai-Patel. At that interview, Bhaktibhai-Patel explained that
he feared persecution and torture if removed to India due to his public
support for the Congress Party. That support consisted of putting up
posters and helping the Congress Party conduct local rallies.
Bhaktibhai-Patel alleged that supporters of the rival Bharatiya Janata
Party (“BJP”) had attacked him on three occasions and threatened him
with death on account of his public support of the Congress Party. He
5 This time, he entered the United States through Canada, where he
claimed to have been granted asylum and given an ID, although he could
not produce the ID when an asylum officer asked to see it.
7
clarified, however, that he did not know if the assailants actually
worked for the BJP, only that they supported it. Bhaktibhai-Patel
reported suffering a sprained hand in one attack and fainting during
another. He further alleged that, on two occasions, he went to the
police to report incidents of harassment by BJP supporters, but the
police refused to take his statement because the police favored the BJP
and knew that Bhaktibhai-Patel supported the Congress Party.
The asylum officer asked Bhaktibhai-Patel if he could relocate
within India to a place where his assailants would not find him or
where the Congress Party had political control. Bhaktibhai-Patel
answered in the negative. He explained that his assailants told him
they would find and kill him wherever he goes in India. When
pressed on how they would locate him, Bhaktibhai-Patel asserted that
they have his “bio data” and would use the BJP’s “big,” country-wide
“network” to find him. Id. at 136. However, Bhaktibhai-Patel
admitted that he was not personally acquainted with his assailants,
and he could not explain how his assailants obtained his “bio data.”
Id. at 132, 136. When pressed about why he would not be safe in an
Indian state under Congress Party control, Bhaktibhai-Patel said “it is
under the control of BJP, there is no Congress party over there, the
country is ruled by BJP.” Id. at 137.
The asylum officer determined that, while Bhaktibhai-Patel’s
testimony was generally credible, Bhaktibhai-Patel did not have a
reasonable fear of persecution or torture in India. In his filings, the
asylum officer appeared to assert two alternative grounds for this
determination. First, the asylum officer wrote that, while Bhaktibhai-
Patel “established a reasonable possibility of showing past
persecution on account of his political opinion, the evidence
establish[ed] ... [that] he is able to relocate within India in order to
8
avoid future persecution.” Id. at 143. The officer explained that “[t]he
record does not show that the people who attacked [Bhaktibhai-Patel]
would be motivated and able to harm him in another part of India”
and that Bhaktibhai-Patel failed to “establish” otherwise because he
“could not affirm that the people who attacked him knew his
identity.” Id. The officer also cited evidence that the BJP does not
control every state in India, which showed that Bhaktibhai-Patel
“could seek protection outside of his state” and rebutted Bhaktibhai-
Patel’s unsupported assertion that the “BJP control[s] the [entire] area
and [the] Congress party does not exist.” Id. at 143-44; see also Singh v.
Garland, 11 F.4th 106, 117 (2d Cir. 2021) (upholding a similar agency
determination about internal relocation).
Second, the immigration officer observed that Bhaktibhai-Patel
“did not provide evidence that the four individuals who threatened
him were employed by or associated with the government” and that
his “testimony that the police refused to take a report against the BJP
is insufficient in itself to establish that the police would let the BJP
attack the applicant.” Cert. Admin. R. 143. This reasoning, which
focused on the lack of government responsibility for the alleged harm,
indicates that the asylum officer did not think that Bhaktibhai-Patel
would experience “persecution” or government-sponsored torture in
India at all, even in the location where he previously lived. See id. at
124 (asylum officer concluding that Bhaktibhai-Patel did not establish
a reasonable fear of torture in India because he did “not establish[]
that there is a reasonable possibility” that the “harm [he] fear[ed]
would be inflicted by or at the instigation of, or with the consent or
acquiescence of, a public official or other person acting in an official
capacity”); see also Singh, 11 F.4th at 115 (“Members of a political party
are not the government; for mistreatment inflicted by party members
9
to amount to persecution, an applicant must show that the
government was unwilling or unable to control the attackers.”).
Bhaktibhai-Patel sought review of the asylum officer’s negative
reasonable fear determination and received a hearing before an
immigration judge on August 7, 2019. The immigration judge
recounted the asylum officer’s reasoning that Bhaktibhai-Patel “could
relocate to a part of [India] where he is not likely to be tortured.” Cert.
Admin. R. 8. Additionally, the immigration judge noted that there
was “no evidence in the record” that Bhaktibhai-Patel’s assailants
“were members of the government but rather simply that they were
members of an opposition political party.” Id. at 46. 6 Accordingly, the
immigration judge concurred in the asylum officer’s negative
reasonable fear determination and “returned” the case “to DHS for
removal of [Bhaktibhai-Patel].” Cert. Admin. R. 9. Bhaktibhai-Patel
then filed a petition for review on August 19, 2019—twelve days after
the immigration judge precluded him from pursuing statutory
withholding and CAT relief, but over five months after DHS
reinstated his 2016 order of removal.
DISCUSSION
Although both Bhaktibhai-Patel and the government insist we
have jurisdiction to review this petition, “federal courts have an
independent obligation to ensure that they do not exceed the scope of
6 This statement was not included in the official record of the immigration
judge’s oral decision. However, the immigration judge rendered her oral
decision in eleven parts, with pauses for discussion with the interpreter,
and she concluded the above-quoted discussion by stating: “That
constitutes the decision and order of the Court.” Cert. Admin. R. 46; see also
id. at 43-46. The immigration judge therefore seems to have intended this
reasoning to be part of her decision.
10
their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to
press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011);
see also Vera v. Banco Bilbao Vizcaya Argentaria, S.A., 946 F.3d 120, 135
(2d Cir. 2019) (“[E]ven if no party raises the issue, courts have an
obligation to consider subject matter jurisdiction sua sponte.”). 7
Carrying out this duty, we conclude that the INA deprives us of
jurisdiction to review Bhaktibhai-Patel’s petition. 8 Our holding
forecloses judicial review of agency decisions in withholding-only
proceedings in some cases. 9 To the extent it does so, that holding is
7 We requested supplemental briefing on the jurisdictional question on
August 6, 2021. The government submitted its supplemental letter brief on
August 27, 2021, and Bhaktibhai-Patel submitted his supplemental letter
brief on September 17, 2021.
8 While our court recently exercised jurisdiction to review the merits of a
petition—like Bhaktibhai-Patel’s—that sought review of withholding-only
proceedings, Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021), that
opinion did not analyze whether a court has jurisdiction over such
petitions. Such “a sub silentio holding is not binding precedent.” Friends of
the E. Hampton Airport, Inc. v. Town of East Hampton, 841 F.3d 133, 153 (2d
Cir. 2016) (quoting Getty Petroleum Corp. v. Bartco Corp., 858 F.2d 103, 113
(2d Cir. 1988)). We also once stated by way of argument when addressing a
different legal issue that the government did “not dispute that [an illegal
reentrant], if his withholding application is denied, could petition this
Court for review of that denial.” Guerra v. Shanahan, 831 F.3d 59, 63 (2d Cir.
2016), abrogated by Johnson, 141 S. Ct. 2271. Guerra has now been abrogated.
But even if it had not been, “drive-by jurisdictional rulings of this sort (if
[Guerra] can even be called a ruling on the point rather than a dictum) have
no precedential effect.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91
(1998).
9 But see infra note 21 (explaining when illegal reentrants may obtain
judicial review of withholding-only determinations).
11
required by the INA’s jurisdictional limitations and is consistent both
with the summary process Congress provided for removing illegal
reentrants and with the Constitution.
I
As relevant here, the INA’s jurisdictional rules provide as
follows: “Judicial review of a final order of removal” proceeds subject
to the “requirements” “provided in subsection (b)” of 8 U.S.C. § 1252.
8 U.S.C. § 1252(a)(1), (b). One such requirement is that any “petition
for review” of a “final order of removal” “must be filed not later than
30 days after the date of” that final order. Id. § 1252(b)(1). This
deadline is jurisdictional and therefore not subject to equitable tolling.
Ruiz-Martinez v. Mukasey, 516 F.3d 102, 118 (2d Cir. 2008) (holding that
“§ 1252(b)(1) is indeed jurisdictional in nature” and “therefore ...
reject[ing] Petitioners’ argument that the applicable limitations period
of 30 days is subject to equitable tolling”); see also Stone v. INS, 514 U.S.
386, 405 (1995) (holding that the “time limit[]” for filing a petition
mandated by the INA’s former § 106(a), the predecessor to § 1252, is
“mandatory and jurisdictional, and ... not subject to equitable
tolling”) (internal quotation marks and citation omitted); Bowles v.
Russell, 551 U.S. 205, 214 (2007) (“[T]his Court has no authority to
create equitable exceptions to jurisdictional requirements.”).
Next, the concluding paragraph of subsection (b) directs that
“judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to
remove an alien from the United States under this subchapter shall be
available only in judicial review of a final order under this section.”
8 U.S.C. § 1252(b)(9) (emphasis added). And if that were not clear
12
enough, the paragraph goes on to state that, “[e]xcept as otherwise
provided in this section, no court shall have jurisdiction, by habeas
corpus under section 2241 of Title 28 or any other habeas corpus
provision, by section 1361 or 1651 of such title, or by any other
provision of law (statutory or nonstatutory), to review such an order
or such questions of law or fact.” Id. 10 Section 1252(b)(9) is
unambiguous: When jurisdiction is not “otherwise provided”
elsewhere in § 1252, a court lacks jurisdiction to review any
“question[] of law [or] fact ... arising from an[] action taken or
proceeding brought to remove an alien from the United States” unless
the court performs that review while conducting “judicial review of a
final order [of removal] under” § 1252. 8 U.S.C. § 1252(b)(9); see also
Nasrallah, 140 S. Ct. at 1690 (explaining that § 1252(b)(9) “establish[es]
that” questions arising from actions taken or proceedings brought to
remove an alien “may be reviewed together with the final order of
removal”) (emphasis added); Jennings v. Rodriguez, 138 S. Ct. 830, 853
(2018) (Thomas, J., concurring in Part I and Parts III–VI and
concurring in the judgment) (“If an alien raises a claim arising from
[a removal-related] action or proceeding, courts cannot review it
unless they are reviewing ‘a final order’ under § 1252(a)(1) or
exercising jurisdiction ‘otherwise provided’ in § 1252.”).
While § 1252 explains that a “final order of removal” is the key
to judicial review in the context of “action[s] taken or proceeding[s]
10 Congress added this second sentence to § 1252(b)(9) as part of the REAL
ID Act of 2005 to “respond[] to [the Supreme] Court’s 2001 decision in St.
Cyr ... that [§ 1252(b)(9)], although purporting to eliminate district court
review of final orders of removal, did not eliminate district court review via
habeas corpus of constitutional or legal challenges to final orders of
removal.” Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) (emphasis omitted).
13
brought to remove an alien from the United States,” that section does
not define the term “final order of removal.” 8 U.S.C. § 1252(a)(1),
(b)(9). That definition appears in § 1101, which provides that an
“order of deportation” is an order “concluding that the alien is
deportable or ordering deportation.” Id. § 1101(a)(47)(A). 11 The
Supreme Court has emphasized that this definition does not
“encompass all determinations made during and incident to the
administrative proceeding on removability.” Nasrallah, 140 S. Ct. at
1692 (internal quotation marks omitted). Rather, the definition in
§ 1101(a)(47)(A) excludes a decision that relates to an alien’s ultimate
removal but “does not affect the validity” of the conclusion that an
alien may or must be removed from the United States. Id. at 1691; see
also Johnson, 141 S. Ct. at 2288. Such a decision neither itself constitutes
an “order of removal” nor does it “merge into” an alien’s underlying
order of removal. Nasrallah, 140 S. Ct. at 1691; see also Johnson, 141
S. Ct. at 2288.
As for when an order of removal “become[s] final,” that occurs
“upon the earlier of—(i) a determination by the Board of Immigration
Appeals affirming such order; or (ii) the expiration of the period in
which the alien is permitted to seek review of such order by the Board
of Immigration Appeals.” 8 U.S.C. § 1101(a)(47)(B); see also Johnson,
141 S. Ct. at 2284-85 (holding that a removal order is
“administratively final” under 8 U.S.C. § 1231(a)(1)(B)(i) “once the
11 “[T]he terms ‘order of deportation’ and ‘order of removal’ are
synonymous” because “[w]hat was formerly known as ‘deportation’ [in the
INA] is now called ‘removal.’” Herrera-Molina, 597 F.3d at 132 n.4; see also
Nasrallah, 140 S. Ct. at 1690 (“[I]n the deportation context, a ‘final order of
removal’ is a final order ‘concluding that the alien is deportable or ordering
deportation.’”) (quoting 8 U.S.C. § 1101(a)(47)(A)).
14
BIA has reviewed the order (or the time for seeking the BIA's review
has expired)”).
II
Applying § 1252 to this case, we dismiss Bhaktibhai-Patel’s
petition for review for lack of jurisdiction.
A
Bhaktibhai-Patel petitioned for review of DHS’s decision to
reinstate his 2016 order of removal and the immigration judge’s
decision that he may not pursue claims for statutory withholding or
CAT relief. By any reasonable interpretation, this petition asks us to
review “questions of law and fact ... arising from ... action[s] taken or
proceeding[s] brought to remove [Bhaktibhai-Patel] from the United
States.” 8 U.S.C. § 1252(b)(9). While the Supreme Court has yet
definitively to resolve the meaning of “arising from” in the context of
§ 1252(b)(9), 12 it has explicitly recognized that questions regarding an
12 See Jennings, 138 S. Ct. at 839-41 (plurality opinion). In Jennings, Johnson,
and Nielsen v. Preap, the Court decided questions relating to immigration
detention—not an alien’s eligibility for adjustment of status or relief—and
the plurality reasoned that “it [wa]s not necessary ... to provide a
comprehensive interpretation” of the term “arising from” in § 1252(b)(9) to
conclude that such questions do not fall within the scope of § 1252(b)(9).
Jennings, 138 S. Ct. at 841; see also Johnson, 141 S. Ct. at 2284 n.4 (plurality
opinion); Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (plurality opinion). But
see Jennings, 138 S. Ct. at 854-55 (Thomas, J., concurring in Part I and Parts
III-VI and concurring in the judgment) (arguing that such questions do fall
within § 1252(b)(9)’s scope); Johnson, 141 S. Ct. at 2292 (Thomas, J.,
concurring except for footnote 4 and concurring in the judgment) (same);
Nielsen, 139 S. Ct. at 974 (Thomas, J., concurring in part and concurring in
the judgment) (same). Recently, the Court relied on the Jennings plurality’s
15
alien’s eligibility for CAT relief—and, by logical extension, statutory
withholding—are covered by § 1252(b)(9). See Nasrallah, 140 S. Ct. at
1691 (Ҥ 1252(b)(9) simply establish[es] that a CAT order may be
reviewed together with the final order of removal.”). Therefore, we
have jurisdiction to decide this case “only” if Bhaktibhai-Patel’s
petition allows us to exercise “judicial review of a final order [of
removal] under” § 1252. 8 U.S.C. § 1252(b)(9); see also Nasrallah, 140
S. Ct. at 1691 (providing that § 1252(b)(9) “establish[es] that”
questions relating to CAT relief “may be reviewed together with the
final order of removal”) (emphasis added). 13 Bhaktibhai-Patel’s
petition, however, does not challenge any judicially reviewable final
order of removal.
The petition presents three possibilities for what might—but
ultimately does not—constitute a final order of removal that we may
review: (1) Bhaktibhai-Patel’s March 2016 order of removal, (2) DHS’s
March 2019 decision to reinstate that order of removal, and (3) the
immigration judge’s August 2019 decision denying Bhaktibhai-
reasoning to sustain its jurisdiction to review DHS’s decision to terminate
the DACA program. DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907
(2020). But like the Jennings plurality, the Regents Court did not attempt to
define the meaning of “arising from.” See id. Nor did Regents concern an
alien’s eligibility for immigration status or relief.
13 Alternatively, we would have jurisdiction if § 1252 “otherwise provided”
for jurisdiction in a case like this. 8 U.S.C. § 1252(b)(9). But § 1252 contains
no provision that would enable us to exercise jurisdiction in this case in the
absence of a judicially reviewable final order of removal. Section 1252(a)(4)
discusses judicial review of CAT claims, but that provision simply
establishes that “a CAT order is reviewable as part of the review of a final
order of removal under 8 U.S.C. § 1252.” Nasrallah, 140 S. Ct. at 1691
(internal quotation marks omitted and emphasis added).
16
Patel’s request to pursue statutory withholding and CAT relief. We
can easily dispense with the third option. Decisions made during
withholding-only proceedings cannot qualify as orders of removal.
Those decisions—which concern an alien’s eligibility for statutory
withholding and CAT relief—do not determine whether “the alien is
deportable or order[] deportation.” 8 U.S.C. § 1101(a)(47)(A). Nor do
those decisions “affect the validity” of any determination regarding
an alien’s deportability or deportation. Nasrallah, 140 S. Ct. at 1691.
Rather, “[i]f an immigration judge grants an application for
withholding of removal, he prohibits DHS from removing the alien to
[a] particular country, not from the United States.” Johnson, 141 S. Ct.
at 2285; see also 8 C.F.R. §§ 208.16(f), 208.22. In such a case, “[t]he
removal order is not vacated or otherwise set aside. It remains in full
force, and DHS retains the authority to remove the alien to any other
country authorized by the statute.” Johnson, 141 S. Ct. at 2285; see also
id. at 2283 (“[B]ecause withholding of removal is a form of country
specific relief, nothing prevents DHS from removing the alien to a
third country other than the country to which removal has been
withheld or deferred.”) (internal quotation marks, citation, and
alteration omitted); Nasrallah, 140 S. Ct. at 1691 (stating the identical
proposition in the context of CAT relief). Any decision an
immigration judge makes during withholding-only proceedings is
therefore “not itself a final order of removal” and “does not merge
into [an alien’s] final order of removal.” Nasrallah, 140 S. Ct. at 1691;
see also Johnson, 141 S. Ct. at 2288. Accordingly, the immigration
judge’s August 2019 decision denying Bhaktibhai-Patel’s request to
17
pursue statutory withholding and CAT relief cannot provide a basis
for our jurisdiction under § 1252. 14
Eliminating the immigration judge’s withholding decision
leaves Bhaktibhai-Patel’s reinstated 2016 order of removal and DHS’s
March 2019 reinstatement decision as the only possible bases for our
jurisdiction. The 2016 removal order obviously qualifies as an order
of removal. As for DHS’s March 2019 reinstatement decision, our
precedents suggest, without explanation, that such a decision
represents a final order of removal under § 1252. See Garcia-Villeda v.
Mukasey, 531 F.3d 141, 150 (2d Cir. 2008) (“[An] alien may also
challenge the reinstatement order in a court of appeals. 8 U.S.C.
§ 1252(a).”). 15 To provide us with jurisdiction to review these orders
of removal, however, Bhaktibhai-Patel needed to file a petition “not
later than 30 days after the date” that the orders became “final.”
8 U.S.C. § 1252(b)(1); Ruiz-Martinez, 516 F.3d at 118. Both of these
orders became final well over 30 days before Bhaktibhai-Patel filed
his petition on August 19, 2019.
14 For this reason, we disagree with the Third Circuit’s pre-Nasrallah
holding that an immigration judge’s adverse reasonable fear decision
“constitutes a final order of removal over which we have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(1).” Bonilla v. Sessions, 891 F.3d 87, 90 n.4 (3d
Cir. 2018); see also Tomas-Ramos v. Garland, 24 F.4th 973, 980 n.3 (4th Cir.
2022) (“Because the streamlined process that governs reasonable fear
determinations does not include an appeal to the Board of Immigration
Appeals, the IJ’s ruling on review pursuant to § 208.31(g)(1) is the agency’s
‘final order’ for purposes of judicial review under 8 U.S.C. § 1252(a)(1).”)
(citing Hernandez-Aquino v. Barr, 770 F. App’x 88, 88-89 (4th Cir. 2019)).
15 But see infra Part III (questioning this conclusion).
18
An order of removal “become[s] final upon the earlier of—(i) a
determination by the Board of Immigration Appeals affirming such
order; or (ii) the expiration of the period in which the alien is
permitted to seek review of such order by the Board of Immigration
Appeals.” 8 U.S.C. § 1101(a)(47)(B). While the record contains little
information about Bhaktibhai-Patel’s 2016 order of removal, we have
no doubt that the period for seeking BIA review of that order
expired—or that the BIA affirmed that order—well over 30 days
before August 19, 2019, when Bhaktibhai-Patel filed his petition for
review. Furthermore, DHS’s decision to reinstate that order of
removal did “not affect” that order’s “validity,” and the reinstatement
decision therefore “d[id] not merge into” or otherwise affect the
finality of that prior order of removal. Nasrallah, 140 S. Ct. at 1691. 16
We therefore may not review Bhaktibhai-Patel’s 2016 order of
removal.17
16 Under the predecessor to § 1231(a)(5), the reinstatement decision did
affect the finality of the prior order for limited purposes. That provision
stated that “[f]or the purposes of [a provision imposing a criminal sentence
on aliens who attempt to forestall their removal] the date on which the
finding is made that such reinstatement is appropriate shall be deemed the
date of the final order of deportation.” 8 U.S.C. § 1252(f) (1994). That
exception, however, did not relate to any judicial review provisions and,
regardless, Congress chose not to include either that exception or any
similar language when it enacted § 1231(a)(5).
17 Section 1231(a)(5) presents an additional hurdle to judicial review of
Bhaktibhai-Patel’s prior order of removal. That provision states that “the
prior order of removal ... is not subject to being reopened or reviewed.”
8 U.S.C. § 1231(a)(5). A number of circuit courts have nevertheless held that
8 U.S.C § 1252(a)(2)(D), which was passed as part of the REAL ID Act of
2005, “re-vests the circuit courts with jurisdiction” to review a reinstated
19
We turn then to DHS’s March 2019 reinstatement decision. The
definition of finality in § 1101(a)(47)(B) does not squarely apply to
that decision because an illegal reentrant may not appeal a
reinstatement decision to the BIA (or even to an immigration judge).
See 8 C.F.R. § 241.8(a). 18 Because the definition at § 1101(a)(47)(B) ties
order of removal on a limited basis. Garcia de Rincon v. DHS, 539 F.3d 1133,
1137 (9th Cir. 2008) (citing Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir.
2007), Debeato v. Att’y Gen., 505 F.3d 231, 235 (3d Cir. 2007), and Ramirez-
Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006)); see also Mejia v. Sessions,
866 F.3d 573, 588-89 (4th Cir. 2017); Villegas de la Paz v. Holder, 640 F.3d 650,
656 (6th Cir. 2010). Subparagraph (D) states that “[n]othing ... in any other
provision of [the INA] (other than this section) which limits or eliminates
judicial review, shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this section.” 8 U.S.C.
§ 1252(a)(2)(D). This provision might imply that § 1231(a)(5)’s limitation of
review of the prior order of removal does not extend to constitutional or
legal claims raised in accordance with § 1252. While our circuit has yet to
address this re-vesting theory, see Herrera-Molina, 597 F.3d at 140 n.9; Lema
v. Holder, 363 F. App’x 88, 90 (2d Cir. 2010), the theory does not permit
review of the prior order of removal because it cannot overcome the
jurisdictional filing deadline for challenging that order. Indeed, nearly all
of the circuit courts that have endorsed the re-vesting theory have
recognized that, even if § 1231(a)(5) does not itself fully insulate the prior
order of removal from judicial review, § 1252(b)(1)’s jurisdictional filing
deadline accomplishes the same result. See Moreno-Martinez v. Barr, 932 F.3d
461, 464 (6th Cir. 2019); Luna-Garcia De Garcia v. Barr, 921 F.3d 559, 564 (5th
Cir. 2019); Mejia, 866 F.3d at 589; Verde-Rodriguez v. Att’y Gen., 734 F.3d 198,
203 (3d Cir. 2013); Cordova-Soto v. Holder, 659 F.3d 1029, 1031-32 (10th Cir.
2011); see also Lara-Nieto v. Barr, 945 F.3d 1054, 1060 & n.4 (8th Cir. 2019).
Accordingly, regardless of the re-vesting theory, review of the 2016 order
of removal is unavailable in this case.
18 The statutory definition of finality therefore suggests that a
reinstatement decision cannot itself become a final order of removal. See
20
finality to the final stage of agency review available as of right to
aliens in regular removal proceedings, however, we conclude that a
reinstatement decision becomes final once the agency’s review
process is complete. An immigration officer’s decision to reinstate an
illegal reentrant’s prior order of removal under § 1231(a)(5) is
definitive and not subject to further review within the agency—and
therefore “final” for the purposes of § 1252—when the alien chooses
not to contest the decision or, if the alien does contest it, when the
immigration officer reviews and rejects the alien’s objection. See
8 C.F.R. § 241.8(a)-(c).
In this case, DHS reinstated Bhaktibhai-Patel’s order of removal
on March 9, 2019. An immigration officer concluded that Bhaktibhai-
Patel was “removable as an alien who has illegally reentered the
United States after having been previously removed” and was
therefore “subject to removal by reinstatement of the prior order.”
Cert. Admin. R. 65. Bhaktibhai-Patel acknowledged that
determination and was afforded an opportunity to contest the
determination. Id. A second immigration officer then issued a
“Decision, Order, and Officer’s Certification” that, “[h]aving
reviewed all available evidence, the administrative file and any
statements made or submitted in rebuttal, I have determined that
[Bhaktibhai-Patel] is subject to removal through reinstatement of the
prior order, in accordance with [8 U.S.C. § 1231(a)(5)].” Id. Therefore,
DHS’s reinstatement decision became final on the day of that
decision, order, and certification—March 9, 2019. Yet Bhaktibhai-
infra Part III. We assume here, however, that our precedents allow a
reinstatement decision to be treated as a final order of removal subject to
judicial review. Garcia-Villeda, 531 F.3d at 150.
21
Patel filed his petition for review on August 19, 2019, well past the 30-
day jurisdictional deadline in § 1252. 8 U.S.C. § 1252(b)(1); Ruiz-
Martinez, 516 F.3d at 118. That untimeliness denies us jurisdiction to
review DHS’s March 2019 reinstatement decision.
B
When DHS reinstated his prior order of removal, Bhaktibhai-
Patel expressed fear of persecution and torture if removed to India.
But that claim, and the withholding-only proceedings it triggered, do
not affect the finality of Bhaktibhai-Patel’s 2016 order of removal or
of DHS’s reinstatement decision. As the Supreme Court has
explained, even if an illegal reentrant obtains relief through
withholding-only proceedings, “[t]he [reinstated] removal order is
not vacated or otherwise set aside ... and DHS retains the authority to
remove the alien to any other country authorized by the statute.”
Johnson, 141 S. Ct. at 2285. The same reasoning applies to DHS’s
reinstatement decision. The validity of that decision depends only on
a determination that the alien “ha[d] been subject to a prior order of
removal,” was “previously removed” pursuant to an order of
removal, and “unlawfully reentered the United States.” 8 C.F.R.
§ 241.8(a); see also 8 U.S.C. § 1231(a)(5); Johnson, 141 S. Ct. at 2282.
Accordingly, “the finality of the order of removal” and DHS’s
decision to reinstate that order do “not depend in any way on the
outcome of the withholding-only proceedings.” Johnson, 141 S. Ct. at
2287; see also id. at 2288 (“[T]he order of removal is separate from and
antecedent to a grant of withholding of removal.”).
Our decision stating otherwise in Guerra v. Shanahan, 831 F.3d
59 (2d Cir. 2016), has been abrogated by the decision of the Supreme
Court in Johnson. We held in Guerra that an illegal reentrant’s
22
reinstated removal order is not “administratively final” during the
pendency of withholding-only proceedings and that the mandatory
detention provisions of § 1231(a) therefore do not apply to such
reentrants. Id. at 62-64 (“[A] removal order is not final during the
pendency of ... withholding-only proceedings.”). But the Supreme
Court came to the opposite conclusion in Johnson. See 141 S. Ct. at
2283-84. If Guerra provides any guidance now, it does so via its
subsidiary holding that “we have never recognized ... ‘tiers’ of
finality” pursuant to which “the finality which permits judicial
review is different from the finality which permits [the alien’s]
detention under 8 U.S.C. § 1231(a).” 831 F.3d at 63. In other words, if,
as the Supreme Court has now clarified, withholding-only
proceedings do not impact the finality of a removal order for the
purpose of § 1231’s detention provisions, see Johnson, 141 S. Ct. at
2287-88, those proceedings also do not impact the finality of an order
of removal for the purpose of judicial review under § 1252. 19
Furthermore, the logic of Johnson applies with equal force to the
question of finality under § 1252. At oral argument in Johnson, the
government argued that the “[t]erm ‘final order of removal’” in § 1252
“is ambiguous” and that “‘final’ [c]ould ... mean something different
in 1252.” Transcript of Oral Argument at 10, 24, Pham v. Guzman
Chavez (Johnson), 141 S. Ct. 2271 (2021) (No. 19-897). We do not see the
purported ambiguity. Section 1252 discusses judicial review of a
19 We therefore disagree with the Ninth Circuit’s conclusion that “a
reinstated removal order … [can be] final for detention purposes even
though it lacks finality for purposes of judicial review of [the] withholding-
only claim.” Padilla-Ramirez v. Bible, 882 F.3d 826, 836 (9th Cir. 2018); see also
Martinez v. Larose, 968 F.3d 555, 563 n.6 (6th Cir. 2020); Guerrero-Sanchez v.
Warden York Cty. Prison, 905 F.3d 208, 218-19 & n.8 (3d Cir. 2018).
23
“final order of removal.” 8 U.S.C. § 1252(a)(1). As Nasrallah
recognized, the INA provides a specific definition for that term in
§ 1101(a)(47). See Nasrallah, 140 S. Ct. at 1691. To use the government’s
own words, “the definition of ‘finality’ in 1101(a)(47) ties finality to
whether the agency’s review has been completed.” Transcript of Oral
Argument, supra, at 10. Thus, in § 1231(a)(1) and § 1252 alike,
“Congress focused our attention on the agency’s review proceedings”
as the decisive metric for determining the finality of a removal order.
Johnson, 141 S. Ct. at 2284 (emphasis omitted). When it comes to an
illegal reentrant, both the prior order of removal and DHS’s decision
to reinstate that order are definitive and unreviewable within the
agency—and therefore final—before withholding-only proceedings
even begin. See id. at 2288 (“[T]he order of removal is separate from
and antecedent to a grant of withholding of removal.”).
In reaching the opposite conclusion in a case predating Johnson
and Nasrallah, the Tenth Circuit reasoned that an illegal reentrant’s
“reinstated removal order is not final in the usual legal sense” until the
withholding-only proceedings conclude “because [the removal order]
cannot be executed” until that time. Luna-Garcia v. Holder, 777 F.3d
1182, 1185 (10th Cir. 2015) (emphasis added) (citing Catlin v. United
States, 324 U.S. 229, 233 (1945), and Webster’s Third New International
Dictionary 851 (1993)); see also Ponce-Osorio v. Johnson, 824 F.3d 502,
505-06 (5th Cir. 2016) (adopting this reasoning); Jimenez-Morales v.
U.S. Att’y Gen., 821 F.3d 1307, 1308 (11th Cir. 2016) (same). Yet by
searching for a definition of finality outside the INA, the Tenth
Circuit’s decision ignores the clear implication of the INA’s specific
definition of finality, which ties finality to whether the agency’s
24
review of the removal order is complete. See 8 U.S.C.
§ 1101(a)(47)(B). 20
In sum, in his petition challenging DHS’s decision to reinstate
his 2016 order of removal and the immigration judge’s subsequent
decision to deny withholding-only relief, Bhaktibhai-Patel asks us to
review “questions of law and fact ... arising from ... action[s] taken or
proceeding[s] brought to remove [him] from the United States.”
8 U.S.C. § 1252(b)(9). The INA permits us to exercise jurisdiction to
decide such questions only if Bhaktibhai-Patel’s petition allows us to
exercise “judicial review” over “a final order [of removal].” Id. The
petition, however, does not timely seek review of a final order of
removal. Bhaktibhai-Patel filed this petition after the jurisdictional
deadlines to review his 2016 order of removal and DHS’s March 2019
decision to reinstate his prior order of removal had passed, and the
immigration judge’s withholding-only decision is not an order of
removal at all.
20 The Tenth Circuit purported to find further support for its position in the
Supreme Court’s test for “final agency action” under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 704. But that test also undermines the
Tenth Circuit’s position. Under the APA, “to be final, agency action must
‘mark the consummation of the agency’s decisionmaking process,’ and it
must determine ‘rights or obligations’ or occasion ‘legal consequences.’”
Luna-Garcia, 777 F.3d at 1185 (quoting Bennett v. Spear, 520 U.S. 154, 178
(1997)). With respect to an illegal reentrant, the agency “consummat[es]” its
“decisionmaking process” regarding the removal order before the
withholding-only proceedings begin, and the order occasions unalterable
“legal consequences” regardless of the outcome of those proceedings.
Bennett, 520 U.S. at 178; see Johnson, 141 S. Ct. at 2285-88.
25
III
One might observe that our opinion produces a seemingly odd
result, in that we recognize that an illegal reentrant may obtain
judicial review of DHS’s decision to reinstate a prior order of removal,
see Garcia-Villeda, 531 F.3d at 150, but simultaneously hold that a
reentrant generally may not obtain judicial review of subsequent
withholding-only proceedings. 21 This oddity, however, results from
questionable precedent that implicitly holds that a reinstatement
decision itself qualifies as a final order of removal under § 1252.
That holding, which we have never explained, rests on an
unstable foundation. Although DHS’s reinstatement decision
arguably “order[s] deportation” and therefore falls within the INA’s
definition of an order of removal, that decision may never “become
final” because it cannot be appealed to the BIA. 8 U.S.C. § 1101(a)(47);
see 8 C.F.R. § 241.8(a). Moreover, holding that DHS’s reinstatement
decision qualifies as an order of removal conflicts with 8 U.S.C.
§ 1231(a)(5), which provides for the “reinstate[ment]” of a “prior order
or removal,” not the issuance of a new one. 8 U.S.C. § 1231(a)(5)
(emphasis added). Additionally, while we refer in this opinion to the
prior order’s reinstatement as a “reinstatement decision,” § 1231(a)(5)
does not authorize the agency to make a discretionary decision.
Rather, once DHS determines that an individual is an illegal
21 To be sure, review may be available when the withholding-only
proceedings conclude within 30 days of DHS’s reinstatement decision and
the reentrant files a petition for review before that period expires. A court
would likely have jurisdiction to review the withholding-only proceedings
in that case if we accept our court’s implicit conclusion that DHS’s
reinstatement decision itself qualifies as a final order of removal. See Garcia-
Villeda, 531 F.3d at 150.
26
reentrant, “the prior order of removal is reinstated from its original
date.” 8 U.S.C. § 1231(a)(5) (emphasis added). Thus, § 1231(a)(5) does
not condition the reinstatement of the prior order on any subsequent
order that DHS may issue; the statute instead directs that the prior
order is automatically reinstated by operation of law.
Some circuit courts have reasoned that § 1252 authorizes
judicial review of reinstatement decisions because, even though
“[r]einstatement orders are not literally orders of removal,” such
orders “give effect to previously issued [removal] orders.” Castro-
Cortez v. INS, 239 F.3d 1037, 1044 (9th Cir. 2001), abrogated on other
grounds by Fernandez-Vargas, 548 U.S. 30; see also Ojeda-Terrazas v.
Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002) (exercising jurisdiction to
review a reinstatement decision despite concluding that “a
reinstatement order is not literally an ‘order of removal’”). Other
courts have said that § 1252 grants jurisdiction to review a
reinstatement decision because “[t]he reinstatement itself operates as
the functional equivalent of a final order of removal.” Arevalo v.
Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003) (emphasis added). Section 1252,
however, provides jurisdiction only over a petition to review a “final
order of removal,” and § 1101(a)(47) provides a specific definition of
that term. See Nasrallah, 140 S. Ct. at 1691. Neither § 1252 nor
§ 1101(a)(47) addresses the “functional equivalent” of an order of
removal, Arevalo, 344 F.3d at 9, or an order that “give[s] effect to
previously issued [removal] orders,” Castro-Cortez, 239 F.3d at 1044.
An order is either a “final order of removal” or it is not. 22
22 Notably, the Supreme Court in Johnson declined to endorse our decision
in Garcia-Villeda and the other cases noted here. See Johnson, 141 S. Ct. at
27
IV
We hold today that the INA does not permit judicial review of
illegal reentrants’ withholding-only decisions in some cases. We so
hold despite the “strong presumption favoring judicial review of
administrative action.” Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691, 698
(2021). “The presumption favoring judicial review of administrative
action is just that—a presumption.” Block v. Cmty. Nutrition Inst., 467
U.S. 340, 349 (1984). The presumption applies only in the presence of
“ambiguity” and recedes when a “statute’s language or structure
forecloses judicial review.” Salinas, 141 S. Ct. at 698 (internal
quotation marks omitted). Here, as we have explained, the language
and structure of §§ 1101(a)(47) and 1252 foreclose judicial review of
withholding-only decisions. 23
To be sure, when Congress seeks to “preclude judicial review
of constitutional claims,” we “require [a] heightened showing” of
clear congressional intent “in part to avoid the ‘serious constitutional
question’ that would arise if a federal statute were construed to deny
any judicial forum for a colorable constitutional claim.” Webster v.
Doe, 486 U.S. 592, 603 (1988). This consideration does not undermine
our reading of the statute because an illegal reentrant challenging a
2285 n.6 (“express[ing] no view on whether” cases such as these “are
correct”).
23 This result is not surprising given the statutory purpose to provide for
the summary removal of illegal reentrants. See 8 U.S.C. § 1231(a)(5)
(providing that a reinstated order of removal “is not subject to being
reopened or reviewed” and that “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”).
28
withholding-only decision does not have a “colorable constitutional
claim.” Webster, 486 U.S. at 603.
The Ninth Circuit strained to interpret § 1252 as conferring
jurisdiction to review withholding-only decisions based on its view
that “the Suspension Clause unquestionably requires some judicial
intervention in deportation cases.” Ortiz-Alfaro v. Holder, 694 F.3d 955,
958 (9th Cir. 2012) (internal quotation marks omitted). The Supreme
Court, however, has recently confirmed that the Suspension Clause
applies only when an alien “contest[s] the lawfulness of [his]
restraint” and “seek[s] release.” DHS v. Thuraissigiam, 140 S. Ct. 1959,
1969-70 (2020); see also id. at 1969 (“[T]he essence of habeas corpus is
an attack by a person in custody upon the legality of that custody, and
... the traditional function of the writ is to secure release from illegal
custody.”) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). As
in Thuraissigiam, the Suspension Clause plays no role in challenges to
withholding-only decisions because aliens in such challenges do not
“seek release” from custody or “contest[] the lawfulness of [a]
restraint” the government imposes. Id. at 1969-70. Rather,
withholding-only decisions, and any challenges to those decisions,
concern only the alien’s removal to a specific country. While an illegal
reentrant is subject to § 1231(a)’s detention provisions during the
pendency of his withholding-only proceedings, see Johnson, 141 S. Ct.
at 2284, “the Government is happy to release him—provided the
release occurs in the cabin of a plane bound for” the country
designated in the reinstated removal order. Thuraissigiam, 140 S. Ct. at
1970.
Illegal reentrants also lack colorable due process claims in the
context of withholding-only decisions. To be sure, the Supreme Court
has generally held that “the Fifth Amendment entitles aliens to due
29
process of law in deportation proceedings.” Reno v. Flores, 507 U.S.
292, 306 (1993) (citing Yamataya v. Fisher (Japanese Immigrant Case), 189
U.S. 86, 100-01 (1903)). 24 The procedural due process analysis
proceeds in two steps. First, “a plaintiff must show a deprivation of a
protected life, liberty or property interest.” Bross v. Turnage, 889 F.2d
1256, 1257 (2d Cir. 1989). Second, we “look at the factors set forth in
Mathews v. Eldridge, 424 U.S. 319 (1976),” to determine whether the
procedure provided is constitutionally sufficient. Abdullah v. INS, 184
F.3d 158, 164 (2d Cir. 1999).
An alien’s due process claim arising from removal
proceedings—like all due process claims—must relate to an alleged
deprivation of a “liberty or property interest.” Yuen Jin v. Mukasey,
538 F.3d 143, 156 (2d Cir. 2008); see also U.S. Const. amend. V (“No
person shall ... be deprived of life, liberty, or property, without due
process of law.”). For that reason, we have held that aliens cannot
raise due process challenges “in the context of discretionary relief,”
Yuen Jin, 538 F.3d at 157, because “a benefit is not a protected
entitlement if government officials may grant or deny it in their
discretion,” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).
Accordingly, “aliens have no constitutionally-protected ‘liberty or
property interest’ in ... a discretionary grant of relief for which they
are otherwise statutorily ineligible.” Hernandez v. Sessions, 884 F.3d
107, 112 (2d Cir. 2018).
Withholding-only proceedings involve mandatory relief. But
illegal reentrants still must identify a liberty or property interest
protected by due process before they can claim that the procedures
24 This general rule, however, has limited application to “an alien at the
threshold of initial entry.” Thuraissigiam, 140 S. Ct. at 1964.
30
provided in such a proceeding are constitutionally deficient. Illegal
reentrants possess no “right to be and remain in the United States.”
Japanese Immigrant Case, 189 U.S. at 101. They have already been
ordered removed. Furthermore, we doubt that illegal reentrants
possess a protected interest in statutory withholding or CAT relief. A
right to such relief is not “enumerated in the Bill of Rights.” Obergefell
v. Hodges, 576 U.S. 644, 663 (2015). Nor can such relief be said to have
“always been [an aspect] of the liberty protected by the Due Process
Clause,” Foucha v. Louisiana, 504 U.S. 71, 80 (1992), considering that
these forms of immigration relief did not exist until 1980 and 1998,
respectively, see Refugee Act of 1980, Pub. L. No. 96-212, § 203(e), 94
Stat. 102, 107 (enacting statutory withholding); Foreign Affairs
Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-
277, div. G., § 2242(b), 112 Stat. 2681-761, 2681-822 (directing
executive agencies to implement the CAT). 25
We have previously said that a protectable interest cannot be
based on the United Nations Protocol Relating to the Status of
Refugees or the CAT. See Yuen Jin, 538 F.3d at 159 (“[N]either the
Protocol nor the CAT are self-executing treaties. They therefore do not
create private rights that petitioners can enforce in this court beyond
those contained in their implementing statutes and regulations (i.e.,
the INA).”). We presume that “international agreements, even those
directly benefiting private persons, generally do not create private
rights,” Medellin v. Texas, 552 U.S. 491, 506 n.3 (2008), and in any event
“clear congressional action supersedes prior treaty obligations to the
25 Statutory withholding and CAT relief also do not fall within the narrow
category of “certain personal choices central to individual dignity and
autonomy” that the Supreme Court has come to recognize as protected
“fundamental liberties.” Obergefell, 576 U.S. at 663.
31
extent they are inconsistent,” Guaylupo-Moya v. Gonzales, 423 F.3d 121,
136 (2d Cir. 2005). The government follows withholding-only
proceedings for illegal reentrants pursuant to its understanding of its
treaty obligations, but that procedure cannot give illegal reentrants a
right that Congress has specifically denied. See 8 U.S.C. § 1231(a)(5).
Although “we have suggested in dicta that an alien’s interest”
in statutory withholding “may well enjoy some due process
protection not available to an alien claiming only admission,” Yuen
Jin, 538 F.3d at 157 (citing Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.
1984), and Yiu Sing Chun v. Sava, 708 F.2d 869, 877 (2d Cir. 1983)),
those dicta do not apply to illegal reentrants. In these cases, we
recognized that “constitutionally protected liberty or property
interests may have their source in positive rules of law creating a
substantive entitlement to a particular government benefit.”
Augustin, 735 F.2d at 37; see also Wolff v. McDonnell, 418 U.S. 539, 558
(1974) (“[A] person’s liberty is equally protected, even when the
liberty itself is a statutory creation of the State.”). We then suggested
that “8 U.S.C. § 1253(h),” the original statutory withholding
provision, “creates a substantive entitlement to relief from
deportation or return to” a country in which an alien will face
persecution. Augustin, 735 F.2d at 37; see also Yiu Sing Chun, 708 F.2d
at 877 (stating that “a refugee who has a well-founded fear of
persecution in his homeland has a protectable interest recognized by
... statute”). But while the INA might create a substantive entitlement
to statutory withholding and CAT relief for aliens in general, it
explicitly denies any such entitlement to illegal reentrants, specifying
32
that illegal reentrants are “not eligible and may not apply for any
relief” the INA would otherwise provide. 8 U.S.C. § 1231(a)(5). 26
Even if illegal reentrants had a protected interest in
withholding-only relief, however, the procedures provided under the
applicable regulations are “constitutionally sufficient.” Swarthout v.
Cooke, 562 U.S. 216, 219 (2011). “Due process is flexible, … and it calls
for such procedural protections as the particular situation demands.”
Jennings, 138 S. Ct. at 852. Illegal reentrants who apply for
26 Some courts have suggested that § 1231(a)(5)’s bar does not apply to
withholding of removal because withholding of removal is a form of
“protection” rather than “relief.” Garcia v. Sessions, 856 F.3d 27, 39 (1st Cir.
2017) (applying Chevron deference to such an interpretation); Ramirez-Mejia
v. Lynch, 794 F.3d 485, 489 (5th Cir. 2015). Yet the ordinary meaning of
“relief”—any “redress or benefit,” United States v. Denedo, 556 U.S. 904, 909
(2009)—plainly encompasses withholding of removal. The conference
report for the IIRIRA states that § 1231(a)(5) renders an illegal reentrant
“not eligible to apply for any relief under the INA” and shortly thereafter
refers to withholding of removal as a “form of relief.” H.R. Rep. 104-828, at
216 (1996) (Conf. Rep.). This court has also described withholding of
removal as a form of relief. See, e.g., Hong Fei Gao v. Sessions, 891 F.3d 67, 76
(2d Cir. 2018) (“Withholding of removal is a mandatory form of relief.”);
Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d Cir. 2007) (“A petitioner who has
not personally experienced persecution on a protected ground is ineligible
to obtain withholding of removal relief.”) (internal quotation marks and
alteration omitted). Accordingly, “neither statute nor caselaw supports any
argument that either asylum or withholding of removal is not in fact
‘relief.’” Cazun v. Att’y Gen., 856 F.3d 249, 256 n.13 (3d Cir. 2017); see also
R-S-C v. Sessions, 869 F.3d 1176, 1184 n.8 (10th Cir. 2017). There is no reason
to think that § 1231(a)(5) does not apply to illegal reentrants’ eligibility for
withholding of removal relief. The statute providing aliens the right to
apply for asylum is as categorical as the statute providing withholding
relief, yet this court has already held in Herrera-Molina that illegal reentrants
are ineligible to apply for asylum. 597 F.3d at 139; see also 8 U.S.C.
§ 1158(a)(1).
33
withholding-only relief receive at least two levels of review—from an
asylum officer and an immigration judge—within the Executive
Branch. 8 C.F.R. § 208.31. We are not persuaded that due process
requires a third level of judicial review. See Mathews, 424 U.S. at 348(noting that procedural due process requires only “that the
procedures be tailored, in light of the decision to be made, to the
capacities and circumstances of those who are to be heard, to insure
that they are given a meaningful opportunity to present their case”)
(internal quotation marks and citation omitted).
Finally, we note that Congress’s decision to preclude judicial
review for withholding-only decisions raises no due process concerns
with respect to illegal reentrants, such as Bhaktibhai-Patel, who have
failed to effect an entry into the country. “While aliens who have
established connections in this country have due process rights in
deportation proceedings ... Congress is entitled to set the conditions
for an alien’s lawful entry into this country.” Thuraissigiam, 140 S. Ct.
at 1963-64. “[A]s a result,” aliens who have not “effected an entry”
into the United States have “only those rights regarding admission
that Congress has provided by statute” and “cannot claim any greater
rights under the Due Process Clause.” Id. at 1964, 1982-83.
The Supreme Court has explained that “an alien who is
detained shortly after unlawful entry cannot be said to have ‘effected
an entry.’” Id. at 1982. Bhaktibhai-Patel was apprehended the same
day he unlawfully reentered the country. 27 Aliens such as
27 The alien in Thuraissigiam, whom the Supreme Court held not to have
“effected an entry,” “succeeded in making it 25 yards into U.S. territory
before he was caught.” Thuraissigiam, 140 S. Ct. at 1982. We do not
understand Thuraissigiam’s holding to be confined to that specific scenario.
34
Bhaktibhai-Patel do not “effect[] an entry” into the United States and
therefore “ha[ve] only those rights regarding admission that
Congress has provided by statute.” Thuraissigiam, 140 S. Ct. at 1982-
83. And if those rights do not include access to judicial review for
withholding-only proceedings, such aliens “cannot claim any greater
rights under the Due Process Clause.” Id. at 1964.
CONCLUSION
Illegal reentrants are “not eligible and may not apply for any
relief under” the INA and “shall be removed under the prior order at
any time after the reentry.” 8 U.S.C. § 1231(a)(5). While the
government nevertheless offers a process for illegal reentrants to
pursue statutory withholding and CAT relief, the INA does not
permit us review agency withholding-only decisions unless we do so
while reviewing a final order of removal. Because Bhaktibhai-Patel
seeks review of withholding-only decisions but no final order of
removal subject to judicial review, we DISMISS his petition for lack
of jurisdiction.
The Supreme Court cautioned that adopting too permissive a standard for
effecting an entry “would undermine the ‘sovereign prerogative’ of
governing admission to this country and create a perverse incentive to enter
at an unlawful rather than a lawful location.” Id. at 1983 (quoting Landon v.
Plasencia, 459 U.S. 21, 32 (1982)).
35