F.J.A.P. v. Garland

94 F.4th 620

F.J.A.P., Petitioner, v. Merrick GARLAND, Attorney General of the United States, Respondent.

No. 21-2284

United States Court of Appeals, Seventh Circuit

Argued September 7, 2023

Decided February 27, 2024

Petition for Review of a Decision of the Board of Immigration Appeals. No. AXXX-XX0-000 Harry Graver, Attorney, Jones Day, Washington, DC, Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL, for Petitioner.

Andrew Nathan O'Malley, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Brennan, St. Eve, and Jackson-Akiwumi, Circuit Judges.

St. Eve, Circuit Judge.

Thirteen years ago, F.J.A.P.¹ was removed from the United States. Upon his return to El Salvador, he endured months of petty extortion by the gang MS-13. Then that extortion escalated. The gang demanded $2,000 by the next day or they would kill F.J.A.P. and his family. F.J.A.P. fled—first to a relative's home nearby and then back to the United States. It was not long before U.S. officials discovered his presence and reinstated his original removal order. F.J.A.P. then applied for withholding-only relief under the Convention Against Torture, which an immigration judge granted. The Board of Immigration Appeals reversed, and F.J.A.P. petitions for review. Today we address whether a court of appeals can review F.J.A.P.'s claim for relief.

I. Background²

F.J.A.P. first entered the United States from El Salvador in 2000. After he pleaded guilty to a misdemeanor and later violated parole, the Department of Homeland Security ("DHS") removed him to El Salvador in 2010.

F.J.A.P. remained in El Salvador for four years. While there, he lived with his father in the village of Las Trancas and drove to Universidad Gerardo Barrios in Usulutan to attend college classes. He also worked as a taxi driver to earn extra money.

Eventually, MS-13 began extorting F.J.A.P. for money while he drove back and forth between Las Trancas and Usulutan. To avoid trouble, he complied with their demands for $20 a week. Then the trouble intensified. Two members of the gang came to F.J.A.P.'s home, handed him a cell phone, and told him someone wanted to speak with him. When F.J.A.P. took the phone, the person on the line claimed to be in prison and demanded $2,000 by the following day or the gang would "kill you all."

F.J.A.P. reported the demand and threat to the police in a formal complaint and then went into hiding. He lived with a relative thirty minutes away from Las Trancas, never leaving the house, until returning to the United States.

Not long after he arrived for the second time in the United States, F.J.A.P.'s cousin called to tell him that MS-13 was "looking for both of [them]." Then, in 2015, F.J.A.P. learned that the gang had murdered that same cousin in front of his pregnant wife. F.J.A.P. believes his cousin was murdered because he refused to divulge F.J.A.P.'s location.

Eventually, law enforcement again detained F.J.A.P., and DHS reinstated his order of removal on January 22, 2020. After he expressed fear for his life if he returned to El Salvador, F.J.A.P. was placed in withholding-only proceedings. At the initial level of review, an asylum officer found that F.J.A.P. did not have a reasonable fear of persecution or torture.

The immigration judge disagreed, determining that F.J.A.P. had a credible claim he would be tortured if DHS returned him to El Salvador. In granting F.J.A.P.'s application for withholding under the Convention Against Torture (CAT), the immigration judge reasoned that his testimony was credible for its consistency and corroboration.

The immigration judge based his decision to grant CAT relief on the following facts: F.J.A.P. had been called by a seemingly high-ranking member of MS-13, F.J.A.P.'s life was threatened, and the gang's demand was high—$2,000. The opinion further relied on a 2019 Human Rights Report describing the violence and brutality of MS-13, its control of the country and the roadways, and the government corruption in El Salvador, making it unlikely that F.J.A.P. could avoid the gang if he returned to the country. The immigration judge also credited the fact that F.J.A.P. had reported the extortion to the police and then fled, finding it likely that MS-13 would retaliate against this behavior. In light of these facts, the immigration judge granted CAT relief on July 7, 2020.

The government appealed this decision to the Board of Immigration Appeals ("Board"). The Board reversed the immigration judge's decision to grant CAT relief in a brief, two-page order, finding that the immigration judge's decision was "based on assumptions and a series of hypotheticals." It stated that the judge's determination that F.J.A.P. was likely to be tortured or killed was an unsupported prediction. Specifically, the Board found three clearly erroneous "hypothetical suppositions." First, the Board dismissed any finding related to the phone call F.J.A.P. received demanding $2,000, reasoning that the record contained no evidence that the caller actually was a high-ranking gang member. Second, the Board concluded that there was insufficient evidence that the gang had any interest in harming F.J.A.P. And third, the Board discounted any personal threat F.J.A.P. might face because the 2019 Human Rights Report established only general corruption throughout El Salvador.

On this basis, the Board vacated the immigration judge's order granting relief and ordered F.J.A.P. removed to El Salvador on June 14, 2021. F.J.A.P. petitioned the Seventh Circuit to review that decision on July 13, 2021. We issued a stay on his removal until the resolution of that petition. While awaiting a decision on this petition, F.J.A.P. requested that the Board reopen proceedings due to ineffective assistance of counsel. The Board denied that request and F.J.A.P. has separately petitioned this court for review of that denial.

II. Analysis

F.J.A.P. challenges the Board's reversal of CAT relief. He argues that the Board misapplied clear error review and lacked substantial evidence to support reversal.

In response, the government initially argued that we lack jurisdiction because F.J.A.P.'s petition was untimely, coming more than 30 days after the reinstatement of his removal order. The government has since withdrawn that argument, conceding that § 1252(b)(1)'s 30-day filing deadline began to run at the conclusion of agency withholding proceedings.

In supplemental briefing shortly before oral argument, the government also argued for the first time that § 1252(b)(1) is a mandatory claims-processing rule, not a jurisdictional rule. Stone v. INS explained that the predecessor statute to § 1252(b)(1) was jurisdictional. 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Relying on Stone, our circuit precedent similarly holds that § 1252(b)(1)'s filing deadline is jurisdictional. Sankarapillai v. Ashcroft, 330 F.3d 1004, 1005 (7th Cir. 2003); see also Chavarria-Reyes v. Lynch, 845 F.3d 275, 277 (7th Cir. 2016). We are aware that the Supreme Court's recent decision in Santos-Zacaria v. Garland called the jurisdictionality of § 1252(b)(1) into question, but it did not directly overrule Stone. 598 U.S. 411, 143 S. Ct. 1103, 1113, 215 L.Ed.2d 375 (2023) (finding that § 1252(d)(1)'s exhaustion requirement is nonjurisdictional). The government's argument has merit. See Alonso-Juarez v. Garland, 80 F.4th 1039, 1046-47 (9th Cir. 2023) (holding that § 1252(b)(1) is a nonjurisdictional claims-processing rule); Argueta-Hernandez v. Garland, 87 F.4th 698, 705 (5th Cir. 2023) (same); see also Martinez v. Garland, 86 F.4th 561, 574 (4th Cir. 2023) (Floyd, J., concurring in the judgment) (noting that Santos-Zacaria "strongly suggests" the 30-day deadline is a claims-processing rule). But see Salgado v. Garland, 69 F.4th 179, 181 & n.1 (4th Cir. 2023) (holding that § 1252's filing deadline is jurisdictional); see also Kolov v. Garland, 78 F.4th 911, 917 & n.4 (6th Cir. 2023) (citing Stone for the proposition that the filing deadline is "mandatory and jurisdictional" and declining to consider whether Santos-Zacaria has called that holding into question). But until Stone is overturned by the Court itself, we must continue to apply it. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).

With that, we must independently assure ourselves of our jurisdiction, which we review de novo. Villa v. Barr, 924 F.3d 370, 372 (7th Cir. 2019).

A. Jurisdiction

Under 8 U.S.C. § 1252(a)(1), we have jurisdiction to review "final order[s] of removal." When a reinstated order of removal becomes "final" is crucial because, under 8 U.S.C. § 1252(b)(1), a "petition for review must be filed not later than 30 days after the date of the final order of removal."

F.J.A.P. filed his petition with this court on July 13, 2021, 29 days after the agency concluded withholding proceedings on June 14, 2021, but almost a year and a half after his order of removal was reinstated in January 2020. So, if a reinstated order of removal becomes final on the day issued, regardless of placement in withholding proceedings, F.J.A.P. filed too late. But if a reinstated order of removal becomes final for purposes of judicial review under § 1252 only after the conclusion of withholding proceedings, as both parties now agree, F.J.A.P. timely filed his petition for review.

1. Relevant Statutory and Regulatory Scheme

Before we can determine when the 30-day filing deadline expired in F.J.A.P.'s case, we must review the relevant statutory and regulatory provisions implicated in his petition.

a. Statutory History

Congress passed the Immigration and Nationality Act ("INA") in 1952 and repeatedly amended it in the decades that followed. Four acts shaped the specific law governing F.J.A.P.'s case, including two significant overhauls to the INA in 1996: the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant...