JOSE ALONSO-JUAREZ V. MERRICK GARLAND, No. 15-72821 (9th Cir. 2023)
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Petitioner, a native and citizen of Mexico, reentered the United States without inspection in 2003. The Department of Homeland Security (“DHS”) ordered him removed to Mexico after reinstating an earlier removal order that had been entered against him in 1994. Petitioner expressed a fear of returning to Mexico. The asylum officer determined that Petitioner did not have a reasonable fear of such harm, and an immigration judge (“IJ”) affirmed that determination. Thirty days after the IJ’s decision—but more than thirty days after the date his removal order was reinstated—Petitioner petitioned for review on several grounds, including that the reasonable fear screening procedures established by federal regulation are inconsistent with the statutory provisions governing withholding of removal. Petitioner agreed that the thirty-day filing deadline is no longer jurisdictional, but still disagrees that his petition was untimely. Petitioner continues to maintain that Ortiz-Alfaro’s holding that petitions for review become ripe upon the conclusion of reasonable fear proceedings remains good law.
The Ninth Circuit denied Petitioner’s petition. The panel held that: (1) the thirty-day deadline for filing a petition for review set forth in 8 U.S.C. Section 1252(b)(1) is a nonjurisdictional rule; (2) Petitioner’s petition for review, which was filed within thirty days of the conclusion of his reasonable fear proceedings, but not within thirty days of the reinstatement of his removal order, was timely; and (3) the reasonable fear screening procedures established by regulation are consistent with the statutory provisions governing withholding of removal. The panel concluded that Petitioner’s petition was timely, however denied the petition on the merits.
Court Description: Immigration. Denying Jose Luis Alonso Juarez’s petition for review of an immigration judge’s decision upholding an asylum officer’s negative reasonable fear determination following the reinstatement of a prior order of removal, the panel held that: (1) the thirty-day deadline for filing a petition for review set forth in 8 U.S.C. § 1252(b)(1) is a non- jurisdictional rule; (2) Alonso’s petition for review, which was filed within thirty days of the conclusion of his reasonable fear proceedings, but not within thirty days of the reinstatement of his removal order, was timely; and (3) the reasonable fear screening procedures established by regulation are consistent with the statutory provisions governing withholding of removal.
In light of Santos-Zacaria v. Garland, 598 U.S. 411 (2023)—holding that a neighboring exhaustion provision in the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1252(d)(1), was not jurisdictional—the panel held that the thirty-day deadline for petitions for review set forth in 8 U.S.C. § 1252(b)(1) is a mandatory, non-jurisdictional rule.
The panel concluded that Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012), in which this court held that a petition arising from a reinstated order of removal is not ripe for review until the reasonable fear proceedings have concluded, was not clearly irreconcilable with the Supreme Court’s decisions in Nasrallah v. Barr, 140 S. Ct. 1683 (2020) and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021). The panel declined to adopt the Second Circuit’s contrary interpretation in Bhaktibhai-Patel Patel v. Garland, 32 F.4th 180 (2d Cir. 2022)—that a timely petition must be filed within thirty days of the reinstated order of removal— because doing so would raise grave constitutional concerns by effectively cutting off judicial review of reasonable fear and withholding-only decisions. The panel also rejected as unworkable the government’s suggestion of putting petitions in abeyance pending completion of reasonable fear or withholding-only proceedings. Accordingly, the panel held that a reinstated removal order becomes final, and the 30- day period for filing a petition for review begins, only after the reasonable fear proceedings have concluded.
To the extent Alvarado-Herrera v. Garland, 993 F.3d 1187 (9th Cir. 2021), was unclear on this point, the panel held that the reasonable fear screening regulations, 8 C.F.R.
§§ 208.31 and 1208.31, are not inconsistent with the statutory scheme for determining eligibility for withholding of removal.
The panel concluded that Alonso’s petition was timely, and in a concurrently filed memorandum disposition, denied Alonso’s petition on the merits.
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