Ruiz-Perez v. Garland
| Decision Date | 30 September 2022 |
| Docket Number | 20-61133 |
| Parties | Hortencia Ruiz-Perez, Petitioner, v. Merrick Garland, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Petition for Review of an Order of the Board of Immigration Appeals No. A 028 896 887
Before SMITH, DUNCAN, and OLDHAM, Circuit Judges.
Does cancelation of an alien's removal order count as immigration "relief"? Cancelation of removal provides benefits superior to asylum's benefits-which we have deemed relief. Cancelation, it follows, is also relief.
Hortencia Ruiz-Perez petitions for review of a decision that she is ineligible to have her removal order canceled. But Ruiz-Perez is ineligible for any relief because her removal order was reinstated after she illegally reentered the country following a prior removal. Having concluded that cancelation of removal is relief, we deny her petition for review.
Ruiz-Perez is a Mexican citizen who seeks permanent U.S. residence. She first came to the United States in 1999. At the border, she gave immigration officers a false name. The officers arrested her and returned her to Mexico.
The next day, Ruiz-Perez again tried to cross the border. She told immigration officers she was an American citizen. The officers knew she was lying, so they arrested her again. This time, the government charged her with "Attempted Illegal Entry by False and Misleading Representation." She pleaded guilty, and a federal court sentenced her to 75 days' imprisonment.
The Immigration and Naturalization Service ordered Ruiz-Perez removed. It deemed her inadmissible because she had lied about having U.S. citizenship. It removed Ruiz-Perez to Mexico after her incarceration.
Two years later, Ruiz-Perez illegally reentered the United States. She settled with her husband-a lawful permanent U.S resident-and oldest son near San Antonio. They lived there together for about seven years and had two more children.
Ruiz-Perez says she and her children endured serious abuse from her husband. Most of the abuse she recounts happened in the United States, though she describes two incidents in Mexico. In one of the U.S. incidents, Ruiz-Perez's youngest son suffered a serious injury.
After that, Ruiz-Perez separated from her husband and has not lived with him, although she sometimes sees him in public in the San Antonio area, where she has continued to live for more than a decade.
A few years ago, however, the Bexar County Sheriff's Office arrested Ruiz-Perez for assaulting her neighbor's children during a property-line dispute. The district attorney charged Ruiz-Perez with a crime but later dismissed the charges after he could not convince a witness to testify. The arrest alerted immigration officials to Ruiz-Perez's presence in the United States.
The Department of Homeland Security reinstated Ruiz-Perez's removal order. It concluded she was eligible for reinstatement because she was an "alien who has illegally reentered the United States after having previously been removed." It told Ruiz-Perez she could "contest [that] determination by making a written or oral statement to an immigration officer" but said she had no "right to a hearing before an immigration judge."
Ruiz-Perez never contested that reinstatement order. Instead, she applied for two alternative procedures. First, she asked the Executive Office for Immigration Review to cancel her removal order and to adjust her immigration status to make her a lawful permanent resident. Second, she requested withholding of removal and protection under the Convention Against Torture ("CAT"). An immigration judge ("I.J.") reviewed both applications.
During an initial hearing, the government claimed that Ruiz-Perez was ineligible for cancelation of removal because she was subject to a reinstated removal order. The I.J. allowed Ruiz-Perez to testify in support of her application for withholding of removal and directed further briefing on the cancelation issue. The government then moved to pretermit Ruiz-Perez's application for cancelation.
Ruiz-Perez countered that, because of her husband's abuse, the Violence Against Women Act ("VAWA") makes her eligible for cancelation even after a reinstated removal order. VAWA, she said, prescribes rules "different than those for general permanent or nonpermanent residents." She pointed to language from a 2006 amendment that explains that immigration officials "shall continue to have discretion to consent to an alien's reapplication for admission after a previous order of removal, deportation, or exclusion." [1]
The I.J. denied Ruiz-Perez's applications for cancelation and withholding of removal. He explained that the 2006 amendment is irrelevant because an application for cancelation is not a reapplication for admission. He concluded that he lacked jurisdiction to decide Ruiz-Perez's cancelation application and so did not "discuss" it. Separately, he reasoned that Ruiz-Perez was ineligible for withholding of removal or CAT protection. Accordingly, he ordered her removed to Mexico.
Ruiz-Perez appealed to the Board of Immigration Appeals ("BIA") on both grounds. Regarding the jurisdictional holding, she said an application for cancelation of removal should be treated as a reapplication for admission.
The BIA dismissed the appeal. It agreed with the I.J. that he lacked jurisdiction to consider Ruiz-Perez's cancelation application. But it offered a different reason: Ruiz-Perez is ineligible to apply for cancelation because the INA forbids an alien subject to a reinstated removal order to receive any immigration "relief." It also concluded that the I.J.'s factfindings supported his denial of Ruiz-Perez's application for withholding of removal and CAT protection.
Ruiz-Perez petitioned this court for review. She abandons her bid for withholding of removal and challenges only the BIA's conclusion that she is ineligible for cancelation of removal. She asks that we vacate the BIA's decision and remand for consideration of whether she satisfies the remaining criteria for cancelation under VAWA.
We begin with a brief note on our jurisdiction. We can review "final order[s] of removal." 8 U.S.C. § 1252(a)(1). But a petitioner must file a petition "not later than 30 days after the date of the final order of removal." § 1252(b)(1). So the question, "What qualifies as a final order of removal?" is central to our jurisdiction.
We have held that a reinstatement order is not final until an application for withholding of removal or CAT protection is decided. Ponce-Osorio v. Johnson, 824 F.3d 502, 505-07 (5th Cir. 2016) (per curiam). More recently, however, the Supreme Court called that holding into question. We now know an order denying CAT protection does not count as a "final order of removal because it is not an order 'concluding that the alien is deportable or ordering deportation.'" Nasrallah v. Barr, 140 S.Ct. 1683, 1691 (2020) (quoting 8 U.S.C. § 1101(a)(47)(A)). Nor do such orders "merge into" the final removal order because they do not "affect the validity of the final order"- they may change only the "country of removal." Ibid.
The story is the same for orders that deny withholding of removal. Those are not "final order[s] of removal" because granting withholding leaves a removal order "in full force." Johnson v. Guzman Chavez, 141 S.Ct. 2271, 2285 (2021). The government retains "numerous options" for removing an alien subject to a withholding order. Ibid. So an application for withholding of removal does not mean that a removal decision is still "pending." Id. at 2286. Instead, "removal orders and withholding-only proceedings address two distinct questions," and "the finality of the order of removal does not depend in any way on the outcome of the withholding-only proceedings." Id. at 2287.
Nasrallah and Johnson may mean that a petitioner who wishes to challenge a reinstatement order in federal court must file within 30 days of the reinstatement order-without waiting for withholding-only proceedings to conclude. That's what the Second Circuit recently held in Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190-95 (2d Cir. 2022).
But even that conclusion relies on the premise that a reinstatement order is a "final order of removal" under Section 1252. Id. at 195-96. Again, we have held that it is. Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002).
That conclusion, too, may require reassessment in the wake of Nasrallah and Johnson. One might think that a reinstatement order is not a "final order concluding that the alien is deportable or ordering deportation," Nasrallah, 140 S.Ct. at 1691 (quotation omitted), because a reinstatement order presupposes a "prior order of removal" and because the statute does not authorize a new removal order-it "reinstate[s] [one] from its original date," 8 U.S.C. § 1231(a)(5).[2] And the removal occurs "under the prior order." Ibid.
Even if that's true, a panel of this court would need to conclude that Nasrallah and Johnson "unequivocally overrule[d] prior precedent" before applying new jurisdictional rules to our review of reinstatement orders. Bonvillian Marine Serv. v. Pellegrin (In re Bonvillian Marine Serv., Inc.), 19 F.4th 787, 792 (5th Cir. 2021) (quotation omitted). That standard sets a high bar- our rule of orderliness is "strict and rigidly applied." Ibid.
We flag these questions for future litigants because, although we are obliged to "assess our own jurisdiction before exercising [our] judicial power," Mejia v Barr, 952 F.3d 255, 261 (5th Cir. 2020) (quotation omitted), adversarial briefing helps. And soon we must decide whether to reassess the extent of our jurisdiction to hear...
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