Ponce-Osorio v. Johnson, No. 16-60085 (5th Cir. 2016)Annotate this Case
Petitioner challenged DHS's decision to reinstate an expedited order of removal. Although petitioner agrees that the court lacks jurisdiction, she formally opposes the motion and seeks a declaration of this circuit's rule of finality as it pertains to this circumstance. The court concluded that the Tenth Circuit has provided a compelling analysis of why reinstatement orders should be regarded as final only upon completion of reasonable fear and withholding-of-removal proceedings. The court agreed with the Tenth Circuit’s analysis and concluded that it applies even where, as here, withholding-of-removal proceedings remain ongoing only because the BIA has remanded to the IJ for background and security checks. The court agreed with Abdisalan v. Holder and adopt its bright-line rule that, when the BIA decides some issues but remands for background and security checks as to others, its decision is not final for purposes of judicial review. It follows that here, the removal proceedings are ongoing because the BIA remanded to the IJ for background and security checks. The reinstatement order is thus non-final, and the court lacked jurisdiction over the petition for review in this case.