Valderamos-Madrid v. Garland ( 2023 )

21-6221
Valderamos-Madrid v. Garland
BIA
Prieto, IJ
A201 608 828
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 23rd day of August, two thousand
twenty-three.
PRESENT:
JON O. NEWMAN,
WILLIAM J. NARDINI,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
CRISTIAN ARMANDO VALDERAMOS-
MADRID,
Petitioner,
v. 21-6221
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lorne J. Kelman, Esq., Valley Stream, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
General; Kiley Kane, Senior Litigation
Counsel; Lindsay Corliss, Trial Attorney,
Office of Immigration Litigation, United
States Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DISMISSED.
Petitioner Cristian Armando Valderamos-Madrid, a native and citizen of
Honduras, seeks review of a March 10, 2021, decision of the BIA affirming a
September 14, 2020, decision of an Immigration Judge (“IJ”) denying his
application withholding of removal and relief under the Convention Against
Torture (“CAT”). In re Cristian Valderamos-Madrid, No. A201 608 828 (B.I.A. Mar.
10, 2021), aff’g No. A201 608 828 (Immig. Ct. N.Y. City Sept. 14, 2020). We assume
the parties’ familiarity with the underlying facts and procedural history.
The government argues that we should “dismiss the petition for lack of
jurisdiction” because Valderamos-Madrid was issued a reinstated removal order
on November 21, 2019, “and he did not file a petition for review of that decision
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until April 8, 2021, well after the thirty-day filing deadline.” Respondent’s Letter
Brief in Response to the Court’s April 10, 2023, Order at 1, Valderamos-Madrid v.
Garland, No. 21-6221 (2d Cir. Apr. 11, 2023), ECF No. 30. We agree.
Our jurisdiction is limited to petitions for review filed within 30 days of
“final order[s] of removal.” 8 U.S.C. § 1251(a)(1), (b)(1). We lack jurisdiction over
Valderamos-Madrid’s petition because the 2021 BIA decision—the only decision
as to which the petition would be timely—is a decision in withholding-only
proceedings that does not constitute a final order of removal. See Bhaktibhai-Patel
v. Garland, 32 F.4th 180, 190-91 (2d Cir. 2022). The BIA’s decision denying CAT
protection following the reinstatement of Valderamos-Madrid’s prior removal
order is not itself an order of removal because it does not “determine whether [he]
is deportable,” “order deportation,” or “affect the validity of any determination
regarding [his] deportability or deportation.” Id. at 190 (internal quotation marks
omitted); see also Thompson v. Garland, No. 20-3895, 2023 WL 33336, at *1 (2d Cir.
Jan. 4, 2023).
Valderamos-Madrid’s 2021 petition is untimely as to his removal order
because it was not filed within 30 days of his 2019 removal order or the
reinstatement of that order on November 21, 2019. Bhaktibhai-Patel, 32 F.4th at 190-
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95; see also 8 U.S.C. § 1252(b)(1) (30-day deadline for petition for review); Luna v.
Holder, 637 F.3d 85, 92 (2d Cir. 2011) (“Th[e] 30-day filing requirement is
jurisdictional and is not subject to equitable tolling.”) (internal quotation marks
omitted).
For the foregoing reasons, the petition for review is dismissed. All pending
motions and applications are denied and stays vacated.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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