Alejandro Ortiz-Alfaro v. Eric Holder, Jr. , 694 F.3d 955 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO ORTIZ-ALFARO, 
Petitioner, No. 10-73057
v.
 Agency No.
A029-677-022
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 7, 2012—Seattle, Washington
Filed August 27, 2012
Before: Barry G. Silverman and Mary H. Murguia,
Circuit Judges, and Leslie E. Kobayashi,
District Judge.*
Opinion by Judge Murguia
*The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
9855
ORTIZ-ALFARO v. HOLDER 9857
COUNSEL
Stephen William Manning, Immigrant Law Group PC, Port-
land, Oregon, for the petitioner.
Monica Antoun; Jennifer A. Singer, Department of Justice,
Washington, D.C., for the respondent.
OPINION
MURGUIA, Circuit Judge:
Petitioner Alejandro Ortiz-Alfaro (“Ortiz”) seeks review of
8 C.F.R. § 208.31, arguing the regulation is unlawful because
it precludes him from applying for asylum. The Government
asks us to dismiss for lack of jurisdiction because the Depart-
ment of Homeland Security (“DHS”) is still considering
whether Ortiz has a reasonable fear of persecution, which may
permit Ortiz to apply for withholding of removal. We dismiss
Ortiz’s petition for lack of jurisdiction.
I
If an alien removed pursuant to a removal order subse-
quently reenters the United States illegally, the original
removal order may not be executed against him again unless
it is reinstated by an authorized official. Morales-Izquierdo v.
Gonzales, 486 F.3d 484, 487 (9th Cir. 2007) (en banc). Before
DHS can remove an alien pursuant to a reinstated removal
9858 ORTIZ-ALFARO v. HOLDER
order, DHS must comply with procedures set forth in 8 C.F.R.
§§ 241.8(a) and (b). See Galindo-Romero v. Holder, 640 F.3d
873, 877 (9th Cir. 2011). First, under 8 C.F.R. § 241.8(a), an
immigration officer must “(1) obtain the prior order related to
the alien, (2) confirm that the alien under consideration is the
same alien who was previously removed or voluntarily
departed, and (3) confirm that the alien unlawfully reentered
the United States.” Lin v. Gonzales, 473 F.3d 979, 983 (9th
Cir. 2007). Per 8 C.F.R. § 241.8(b), the officer must then give
the alien written notice of his determination that the alien is
subject to removal and provide him with an opportunity to
make a statement contesting the determination. See id. If these
requirements are met, the alien “shall be removed” under the
prior removal order. 8 C.F.R. § 241.8(c).
However, § 241.8(e) creates an exception by which an alien
who asserts “a fear of returning to the country designated” in
his reinstated removal order is “immediately” referred to an
asylum officer who must determine if the alien has a reason-
able fear of persecution or torture in accordance with 8 C.F.R.
§ 208.31.1 If the officer decides that the alien does have a rea-
sonable fear of persecution or torture, the case is referred to
an immigration judge (“IJ”) “for full consideration of the
request for withholding of removal only.” 8 C.F.R.
§ 208.31(e).
1
The regulations envision that an alien like Ortiz who illegally reenters
the country could nevertheless be eligible for withholding of removal and
relief under the Convention Against Torture if he is able to establish a rea-
sonable fear of persecution or torture if he were removed to Mexico. 8
C.F.R. § 241.8(e). The removal statute, however, says that an alien who
illegally reenters “is not eligible and may not apply for any relief under
this chapter,” 8 U.S.C. § 1231(a)(5), which would seem to include with-
holding of removal. The Government’s position is that the Convention
Against Torture nevertheless constrains the Attorney General from remov-
ing aliens to countries where they would be persecuted or tortured, not-
withstanding the statute. We assume without deciding that Ortiz is not
statutorily precluded from receiving these forms of relief despite his illegal
reentry.
ORTIZ-ALFARO v. HOLDER 9859
On the other hand, where the asylum officer decides that
the alien has not established a reasonable fear of persecution
or torture, the alien may appeal the asylum officer’s determi-
nation to an IJ. 8 C.F.R. § 208.31(g). If the IJ agrees with the
officer’s negative fear determination, the case is “returned to
the Service for removal.” 8 C.F.R. § 208.31(g)(1). The regula-
tions do not provide any means for the alien to appeal the IJ’s
decision regarding a reasonable fear of persecution to the
Board of Immigration Appeals (“BIA”). If, however, the IJ
disagrees with the officer’s determination and decides that the
alien has established a reasonable fear, the alien can file an
“Application for Asylum and Withholding of Removal,”
though the IJ can only consider the alien’s application for
withholding of removal, not asylum. 8 C.F.R. § 208.31(g)(2).
Either party can seek BIA review of the IJ’s decision to grant
or deny withholding of removal. 8 C.F.R. § 208.31(g)(2)(ii).
The regulations provide no means by which an alien with a
reinstated removal order may apply for asylum. According to
the Government, DHS cannot execute a reinstated removal
order until the reasonable fear proceedings are complete.
II
Ortiz is a Mexican national who first entered the United
States in 1989. An IJ ordered Ortiz removed to Mexico on
March 1, 2001. That same day, Ortiz was deported and reen-
tered the United States. On September 7, 2010, DHS issued
Ortiz a “Notice of Intent/ Decision to Reinstate Prior Order,”
Form I-871, which reinstated his 2001 removal order.
Because Ortiz asserted a fear of persecution and torture if
returned to Mexico, a reasonable fear screening was held
before an asylum officer, in accordance with 8 C.F.R.
§ 208.31(b). After the asylum officer found that Ortiz had not
established a reasonable fear of persecution or torture, Ortiz
requested that an IJ review the officer’s reasonable fear deter-
mination. Review of the asylum officer’s determination by an
IJ has yet to take place.
9860 ORTIZ-ALFARO v. HOLDER
Soon after the asylum officer issued his determination find-
ing that Ortiz had not established a reasonable fear of persecu-
tion, Ortiz filed this petition, arguing that the reinstatement
regulations are unlawful because they preclude him from
seeking asylum.
III
[1] Before we can decide the merits of Ortiz’s challenge to
the regulations, we must determine whether we have jurisdic-
tion over his petition for review. “The carefully crafted con-
gressional scheme governing review of decisions of the BIA
limits this court’s jurisdiction to the review of final orders of
removal,” “even where a constitutional claim or question of
law is raised.” Alcala v. Holder, 563 F.3d 1009, 1013, 1016
(9th Cir. 2009); see 8 U.S.C. § 1252(a)(1). An “order of
removal” is an administrative order concluding that an alien
is removable or ordering removal, such as a reinstated
removal order. § 1252(a)(1). The parties dispute whether
Ortiz’s reinstated removal order is final.
Finality is defined by 8 U.S.C. § 1101(a)(47), which states
that removal orders become final “upon the earlier of—(i) a
determination by the [BIA] affirming such order; or (ii) the
expiration of the period in which the alien is permitted to seek
review of such order by the [BIA].” However, this statutory
definition of finality does not dictate a clear answer here
because there is no way to appeal the reinstatement of a
removal order to the BIA. See generally 8 C.F.R. § 241.8.
There are compelling arguments in favor of finding that
Ortiz’s reinstated removal order is final even though DHS is
still in the process of deciding whether Ortiz should be
removed from the United States. DHS has completed all the
procedures necessary to reinstate Ortiz’s 2001 removal order,
which distinguishes this case from Alcala and Galindo-
Romero. In both Alcala, 563 F.3d at 1012-13, and Galindo-
Romero, 640 F.3d at 879, we dismissed for lack of jurisdic-
ORTIZ-ALFARO v. HOLDER 9861
tion because DHS had not yet carried out the procedures
required by 8 C.F.R. § 241.8(a) and (b) to reinstate a prior
removal order. Additionally, resolving the issues presented by
Ortiz’s petition for review will not undermine the reinstate-
ment of the removal order, as Ortiz has not challenged the
validity of the reinstatement or the underlying prior removal
order. Moreover, any future decision by an IJ that grants or
denies Ortiz relief will have no effect on the reinstatement of
Ortiz’s 2001 removal order.
[2] Concluding that the reinstated removal order is final,
however, would make it impossible for Ortiz to timely peti-
tion for review of any IJ decisions denying him relief or find-
ing that he does not have a reasonable fear. The point at
which a removal order becomes final is critical for the pur-
poses of timely petitioning for judicial review. A “petition for
review must be filed no later than thirty days after the date of
the final order of removal.” 8 U.S.C. § 1252(b)(1). This filing
deadline is mandatory and jurisdictional. Magtanong v. Gon-
zales, 494 F.3d 1190, 1191 (9th Cir. 2007). If Ortiz’s removal
order became final when it was reinstated, then the thirty-day
deadline for a petition for review would have expired in Octo-
ber 2010. All petitions filed by Ortiz after October 2010,
which would necessarily include petitions for review of any
yet-to-be-issued IJ decisions denying Ortiz relief or finding
that he lacks a reasonable fear of persecution, would be dis-
missed as untimely. “[B]ecause the Suspension Clause
‘unquestionably’ requires ‘some judicial intervention in
deportation cases,’ ” depriving Ortiz the opportunity for judi-
cial review of a determination that he lacks a reasonable fear
of persecution could raise serious constitutional concerns.
Lolong v. Gonzales, 484 F.3d 1173, 1177 (9th Cir. 2007) (en
banc) (quoting INS v. St. Cyr, 533 U.S. 289, 300 (2001)). In
order to preserve judicial review over petitions challenging
administrative determinations made pursuant to 8 C.F.R.
§ 208.31(e) or (g), we hold that where an alien pursues rea-
sonable fear and withholding of removal proceedings follow-
ing the reinstatement of a prior removal order, the reinstated
9862 ORTIZ-ALFARO v. HOLDER
removal order does not become final until the reasonable fear
of persecution and withholding of removal proceedings are
complete.
Our decision comports with other cases where we recently
considered when a removal order becomes final in different
contexts than the one presented here. In Li v. Holder, we held
that we had jurisdiction to review a BIA decision affirming
the denial of asylum and remanding for the IJ to complete
background checks required for withholding of removal. 656
F.3d 898, 904 (9th Cir. 2011). In Li, the Government argued
that the removal order was not final and that we lacked juris-
diction to decide the petitioner’s asylum claim because the
BIA had remanded to the IJ for the completion of background
checks. Id. at 901. We disagreed and held that the BIA’s order
dismissing the appeal of the asylum claim was “necessarily a
final order” because the petitioner’s asylum claim was
decided by the BIA on the merits and would not be at issue
on remand. Id. at 904.
We have also held that, where the BIA affirms the denial
of one form of relief but remands for further consideration of
alternative relief, there is no final order of removal until the
BIA rejects the last form of relief. Go v. Holder, 640 F.3d
1047, 1051-52 (9th Cir. 2011). In Go, the BIA affirmed the
IJ’s denial of asylum and withholding of removal in May
2005, but remanded for further proceedings regarding relief
under the Convention Against Torture (“CAT”). Id. at 1050.
In March 2006, the BIA issued a second decision rejecting the
petitioner’s CAT claim. Id. at 1051. The petitioner then
appealed the BIA’s May 2005 and March 2006 decisions to
this Court in a single petition. Id. We concluded that we had
jurisdiction to review the May 2005 decision even though the
petitioner did not seek review of that decision until after the
thirty-day deadline for petitioning for review of a final
removal order. Id. We reasoned that the removal order did not
become final until March 2006, when the BIA rejected the
final form of relief—the CAT claim. Id. at. 1051-52. We
ORTIZ-ALFARO v. HOLDER 9863
explained that, while the BIA’s May 2005 decision was the
final administrative order with respect to the asylum and with-
holding of removal claims, it was not a final order because it
left open the possibility that the alien would receive CAT
relief and never have to leave the country. Id. at 1051-52
(“Go’s final order of removal is contingent, at least in part, on
the denial of his claim for asylum, his withholding claim, and
his claim pursuant to the CAT.”).
Go appears to be at odds with Li because Go held that there
was no final removal order until all forms of relief were
denied while Li held that the final removal order was not con-
tingent on the denial of all forms of relief. Nevertheless, in
both cases all administrative proceedings had concluded at the
time we decided that we had jurisdiction. Even in Li, where
the petition for review was originally filed while the back-
ground checks were pending, by the time we issued our deci-
sion, DHS had successfully completed the background checks
and the IJ had filed documentation confirming the grant of
withholding of removal. See 656 F.3d at 899. In contrast,
Ortiz’s reasonable fear screening is still ongoing. As long as
administrative proceedings are ongoing in Ortiz’s case, his
reinstated removal order is not final. Accordingly, we lack
jurisdiction to consider Ortiz’s challenge to the regulations.
As the Government stated at oral argument, dismissing for
lack of jurisdiction will not prevent Ortiz from obtaining judi-
cial review of his challenge to the regulations because he can
present this claim again after DHS completes the reasonable
fear and/or withholding of removal proceedings. If the IJ
determines that Ortiz does not have a reasonable fear of perse-
cution, Ortiz will have no further recourse under 8 C.F.R.
§ 208.31, and may petition for review of the regulations at
that time. If the IJ disagrees with the asylum officer’s deter-
mination that Ortiz has not shown a reasonable fear of perse-
cution, Ortiz will be able to challenge the regulations after the
IJ issues a decision denying or granting relief.
9864 ORTIZ-ALFARO v. HOLDER
[3] Construing Ortiz’s reinstated removal order to be a
final order of removal will deprive him of the ability to timely
petition for review of administrative determinations regarding
his reasonable fear of persecution or torture and his eligibility
for relief. Because DHS has not completed all proceedings
pursuant to 8 C.F.R. § 208.31 that will determine whether or
not Ortiz will be removed, we lack jurisdiction to review
Ortiz’s petition.
DISMISSED for lack of jurisdiction.