Alonso-Juarez v. Garland
| Docket Number | 15-72821 |
| Decision Date | 08 September 2023 |
| Parties | JOSE LUIS ALONSO-JUAREZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
1
JOSE LUIS ALONSO-JUAREZ, Petitioner,
v.
MERRICK B. GARLAND, Attorney General, Respondent.
No. 15-72821
United States Court of Appeals, Ninth Circuit
September 8, 2023
Argued and Submitted October 4, 2022 Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-709-355
Vicky Dobrin (argued) and Hilary Han, Dobrin &Han PC, Seattle, Washington, for Petitioner.
Shahrzad Baghai (argued), Trial Attorney, Office of Immigration Litigation; Sabatino F. Leo, Assistant Director, Office of Immigration Litigation; Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division; United States Department of Justice, Washington, D.C.; for Respondent.
Kristin Macleod-Ball and Trina A. Realmuto, National Immigration Litigation Alliance, Brookline, Massachusetts, for Amici Curiae National Immigration Litigation Alliance, Center for Gender & Refugee Studies, Florence Immigrant and Refugee Rights Project, and Northwest Immigrant Rights Project.
Lee Gelernt and Anand Balakrishnan, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, New York; Cody Wofsy, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, California; for Amicus Curiae American Civil Liberties Union.
Before: Mary H. Murguia, Chief Judge, and William A Fletcher and Mark J. Bennett, Circuit Judges.
SUMMARY[*]
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.
OPINION
MURGUIA, CHIEF CIRCUIT JUDGE
Jose Luis Alonso Juarez ("Alonso"), 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. Because Alonso expressed a fear of returning to Mexico, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Alonso 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-Alonso 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.[1]
In briefing and at oral argument, the government conceded that Alonso's petition was timely pursuant to Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012), in which we held that a petition is not ripe for review until the aforementioned reasonable fear proceedings have concluded. Under Ortiz-Alfaro, a petition for review should be filed within thirty-days of the conclusion of reasonable fear proceedings. Id. at 958.
Several weeks after we heard oral argument, the government filed a letter under Federal Rule of Appellate Procedure ("FRAP") 28(j) challenging our jurisdiction to entertain Alonso's petition for review, and those of petitioners similarly situated. The government's position that we lacked jurisdiction was based on a Second Circuit decision that held that recent Supreme Court precedent- Nasrallah v. Barr, 140 S.Ct. 1683 (2020) and Johnson v. Guzman Chavez, 141 S.Ct. 2271 (2021)-requires petitioners to file their petition for review of an IJ's reasonable fear determination within thirty days of the removal order's reinstatement. See Bhaktibhai-Patel v. Garland, 32 F.4th 180, 193 (2d Cir. 2022). Under the Second Circuit's standard, Alonso's petition for review would be untimely.
Months later, the government changed course based on subsequent Supreme Court precedent-Santos-Zacaria v. Garland, 598 U.S. 411 (2023)-holding that a neighboring provision in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252(d)(1), was not jurisdictional. Santos-Zacaria, 598 U.S. at 416. The government now contends that the reasoning in Santos-Zacaria overrules our prior holding that 8 U.S.C. § 1252(b)(1), the INA provision that establishes the thirty-day filing deadline for petitions like Alonso's, is jurisdictional. See, e.g., Magtanong v. Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007). Alonso agrees that the thirtyday filing deadline is no longer jurisdictional, but still disagrees that his petition was untimely. Alonso continues to maintain that Ortiz-Alfaro's holding that petitions for review become ripe upon the conclusion of reasonable fear proceedings remains good law.
Today, we reach three conclusions. First, we agree with the parties that, under Santos-Zacaria, the thirty-day
deadline set forth in 8 U.S.C. § 1252(b)(1) is a non-jurisdictional rule. Second, we conclude that neither Nasrallah nor Guzman Chavez is "clearly irreconcilable" with our decision in Ortiz-Alfaro. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). Accordingly, Alonso's petition for review, which was filed within thirty days of the conclusion of his reasonable fear proceedings, is timely. Third, on the merits, we reject Alonso's argument that the reasonable fear screening procedures established by regulation are inconsistent with the statutory provisions governing withholding of removal. To the extent our holding in Alvarado-Herrera v. Garland, 993 F.3d 1187 (9th Cir. 2021), was unclear on this point, we clarify today that the reasonable fear screening proceedings are not inconsistent with the statutory provisions governing withholding of removal. We therefore deny Alonso's petition.
I.
Alonso is a native and citizen of Mexico. He first unlawfully entered the United States in January 1990. Alonso first came to the attention of immigration officials in August 1992, following an Oregon state drug conviction. He was removed to Mexico in September 1992, but he later returned and reentered without inspection. In March 1994, Immigration and Naturalization Service officers apprehended Alonso and charged him with being subject to removal for entering the United States without inspection. The IJ issued an order of removal at an in absentia hearing in December 1994. In December 1998, Alonso voluntarily returned to Mexico based on the 1994 removal order, but he re-entered the United States, again without inspection, in August of 2003.
In June 2015, Alonso was arrested and detained based on the December 1994 removal order. DHS reinstated the removal order in July 2015, and referred Alonso to a reasonable fear screening interview with an asylum officer after he expressed a fear of persecution and torture if removed to Mexico.
The asylum officer found Alonso's testimony credible but concluded that Alonso failed to establish a reasonable fear of persecution or torture. Alonso requested that an IJ review the asylum officer's reasonable fear determination. In September 2015, the IJ affirmed the asylum officer's negative reasonable fear determination. Alonso then filed a petition for review within thirty days of the IJ's affirmance of the negative reasonable fear decision.
II.
A prior removal order can be reinstated for noncitizens who "reenter[] the United States illegally after having been removed or having departed voluntarily, under an order of...
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