Farooq v. Attorney Gen.
| Decision Date | 08 February 2023 |
| Docket Number | 20-2950 |
| Parties | SUHAIL FAROOQ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Argued on September 20, 2022
On Petition for Review of an Order from the Board of Immigration Appeals (Agency No. A214-821-489) Immigration Judge: Shelly W. Schools
Rachel M. Rosenberg, Will W. Sachse, Dechert LLP, Counsel for Petitioner.
Brian Boynton, Principal Deputy Assistant Att'y General, Civil Division Melissa Neiman-Kelting Assistant Director Office of Immigration Litigation, Margot P. Kniffin, United States Department of Justice, Counsel for Respondent.
Before: AMBRO [*] , RESTREPO, and FUENTES, Circuit Judges.
Petitioner Suhail Farooq, a noncitizen convicted of wire fraud petitions for review of his final order of removal. Following an appeal, the Board of Immigration Appeals ("BIA") affirmed Farooq's order of removal because his conviction constituted a "particularly serious crime" but remanded the matter for further fact-finding on his Convention Against Torture ("CAT") claim. At the Immigration Judge's ("IJ") behest, Farooq waited until the remanded proceedings on his CAT claim concluded before filing his petition for review. Consequently, he untimely filed.
This Court does not have jurisdiction over untimely filed petitions for review. A petition for review of a final order of removal must be filed within 30 days after the order becomes final. 8 U.S.C. § 1252(b)(1). Pursuant to 8 U.S.C. § 1101(a)(47)(A), a final order of removal is an order that "conclud[es] that the alien is deportable or order[s] deportation." That is the case even if the BIA affirmed the final order of removal but remanded the case for further proceedings on the CAT claim. See Nasrallah v. Barr, 140 S.Ct. 1683, 1692 (2020) (). Nevertheless, we have jurisdiction over this matter because the Immigration Judge officially misled Farooq by instructing him to wait to file the petition until the remand proceedings concluded. Huang v. I.N.S., 47 F.3d 615, 617 (3d Cir. 1995) (citation omitted) ( an appellate tribunal has jurisdiction to review an otherwise untimely appeal if the petitioner was "misled by the court") .
On the merits, Farooq argues that the BIA erred by misapplying the two-step legal framework, set out in In re N-A-M-, 24 I. &N. Dec. 336, 342 (BIA 2007), for determining whether a conviction constitutes a "particularly serious crime" for purposes of the Immigration and Nationality Act ("INA"). We agree. The Government concedes error but asserts that remand is futile. We disagree. Thus, we will grant the petition and remand to the BIA.
Petitioner Suhail Farooq is a native and citizen of India. He arrived in the United States on a nonimmigrant B-1 visa in October 2017, which he overstayed. Once in the United States, Farooq engaged in a wire fraud scheme and was subsequently convicted of wire fraud under 18 U.S.C. § 1343. In June 2019, he was sentenced to 15 months in prison.
Following Farooq's conviction, the Department of Homeland Security ("DHS") served him with a Notice to Appear ("NTA"), charging him as removable under both 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States for a time longer than permitted, and 8 U.S.C. § 1227(a)(2)(A)(i), for his conviction for wire fraud within five years after admission.
Following a removal hearing, the Immigration Judge denied Farooq's request for adjustment of status, asylum, and statutory withholding of removal, but granted his request for deferred protection under the CAT, finding that he would likely experience torture if removed to his home country of India. Farooq was not eligible for statutory withholding of removal because his conviction for wire fraud constituted a "particularly serious crime" under the INA, thus the Immigration Judge entered an order of removal against him. The parties cross-appealed this decision to the BIA, which issued a ruling in July 2020.
The BIA agreed with the Immigration Judge's determination that Farooq's wire fraud conviction qualified as a "particularly serious crime," rendering him ineligible for statutory withholding. On the other hand, the BIA found that the Immigration Judge's grant of deferred removal under the CAT did "not contain adequate findings of fact or conclusions of law concerning [Farooq's] request for protection," because it disregarded the effect of "the passage of time [and Farooq's] ability to relocate in India" on "the likelihood of [his] future torture." JA 87. Consequently, the BIA affirmed the order of removal but remanded the proceedings for further fact-finding on the CAT claim.
Farooq did not file his petition for review of the BIA's removal order within 30 days of the BIA's ruling, because the Immigration Judge told him "that he should not file his appeal prior to the . . . renewed ruling on deferral of removal under CAT." See Pet'r Br. at 11-12; see also id. at 11 n.1.
The BIA had jurisdiction over this case pursuant to 8 C.F.R. § 1003.1(b)(3) (). In turn, we have judicial review over "final orders of removal" issued by the BIA, as well as any "questions of law and fact . . . arising from . . . action[s] taken or proceeding[s] brought to remove" a noncitizen from the United States. See 8 U.S.C. § 1252(b)(9); Nasrallah v. Barr, 140 S.Ct. 1683, 1690 (2020). Section 1252(b)(1) imposes a temporal limit on our jurisdiction: we can only review petitions "filed not later than 30 days after the date of [a] final order" of removal. See Verde-Rodriguez v. Att'y Gen. U.S., 734 F.3d 198, 201 (3d Cir. 2013) ().
An "order of removal" is one that "conclud[es] that the alien is deportable or or-der[s] deportation." 8 U.S.C. § 1101(a)(47)(A). An "order of removal" "become[s] final" "upon the earlier of-(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals." Id. § 1101(a)(47)(B).
Here, Farooq untimely filed his petition for review more than 30 days after the BIA affirmed his final order of removal. Both parties contend that the 30-day timeline governing our jurisdiction over Farooq's petition should run from "the immigration judge's August 27, 2020 decision, entered following the Board's remand for a 'new decision' addressing deferral of removal under the CAT." Resp. Br. at 2; Pet'r Br. at 11. They ask us to adopt a rule to that effect: that an order becomes final when "the BIA, or IJ on remand, has ruled on all claims for relief that may be consolidated for appellate review." Pet'r Br. at 6 (emphasis in original). The parties' proposal would allegedly serve the aims of "judicial efficiency and comprehensive disposition of immigration claims." Resp. Br. at 18. However, such a rule would treat CAT orders as "final orders of removal" in a manner inconsistent with the Supreme Court's recent guidance in Nasrallah.
In Nasrallah, the Supreme Court held that a CAT order is "distinct from a final order of removal and does not affect the validity of the final order of removal." 140 S.Ct. at 1692. Although CAT orders are entered "during and incident to [an] administrative proceeding on removability," id. (internal quotation marks omitted), they do not "disturb the final order of removal" or "merge into the final order of removal," Johnson v. Guzman Chavez, 141 S.Ct. 2271, 2288 (2021) (citing Nasrallah, 140 S.Ct. at 1691).
By operation, CAT orders "prohibit[] DHS from removing the alien to [a] particular country, not from the United States" and do not address "the antecedent question [of] whether an alien is to be removed from the United States." Johnson, 141 S.Ct. at 228586 (emphasis in original); see also Abdulai v. Ashcroft, 239 F.3d 542, 545 (3d Cir. 2001) (superseded by statute on other grounds) ("Withholding of removal . . . confers only the right not to be deported to a particular country-not a right to remain in this one."); 8 C.F.R. § 1208.16(f) (). Even if CAT relief is granted, a petitioner's underlying removal order "remains in full force" and the agency "retains the authority to remove the alien to any other country authorized by the statute." See Johnson, 141 S.Ct. at 2285.
From Nasrallah and Johnson, it follows that "the validity of removal orders is not affected by the grant of withholding-only relief" and ongoing CAT proceedings cannot "render non-final an otherwise 'administratively final'" order of removal. Johnson, 141 S.Ct. at 2288 (citing Nasrallah, 140 S.Ct. at 2287-88). CAT orders do not affect our jurisdiction over final orders of removal.[1] In sum, pursuant to Nasrallah, we do not have jurisdiction to review untimely filed petitions. However, there are exceptions to that rule.
There are two exceptions to the otherwise strict 30-day jurisdictional time bar set out in § 1252(b)(1). Scott v. Att'y Gen. of U.S., 422 Fed.Appx. 123 126 (3d Cir. 2011) (per curiam) (citing Singh v. I.N.S., 315 F.3d 1186, 1188 (9th Cir. 2003...
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