Inestroza-Tosta v. Attorney Gen.

105 F.4th 499

CARLOS ALBERTO INESTROZA-TOSTA, Petitioner v. ATTORNEY GENERAL United States of America

No. 22-1667

United States Court of Appeals, Third Circuit

Argued: November 1, 2023

Filed: June 21, 2024

On Petition for Review of an Order of the Board of Immigration Appeals (BIA 1:A094-901-655), Immigration Judge: Jason L. Pope

Anand V. Blakrishnan [ARGUED], American Civil Liberties Union, 125 Broad Street - 18^th Floor, New York, NY 10004, Cheryl Lin [ARGUED], Suite 255, 338 Palisade Avenue, Jersey City, NJ 07307, Counsel for Petitioner

Merrick B. Garland, Linda Y. Cheng, Jenny C. Lee [ARGUED], United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Kristin A. Macleod-Ball, Trina A. Realmuto, National Immigration Litigation Alliance et al., 10 Griggs Terrace, Brookline, MA 02446, Counsel for Amicus-Petitioners

Before: JORDAN, ROTH, and AMBRO, Circuit Judges

OPINION OF THE COURT

JORDAN, Circuit Judge.

I. INTRODUCTION

Not every statutory filing deadline serves to limit the jurisdiction of federal courts. Some deadlines are simply claim-processing rules. The Supreme Court recently held that the exhaustion rule contained in 8 U.S.C. § 1252(d)(1) - a provision governing judicial review of deportation orders - is just such a nonjurisdictional "claim-processing rule." Santos-Zacaria v. Garland, 598 U.S. 411, 419, 143 S.Ct. 1103, 215 L.Ed.2d 375 (2023). Today, we follow the logic of that decision and hold that the 30-day deadline for a would-be immigrant - an "alien," in statutory parlance - to seek judicial review of a "final order of removal" is likewise nonjurisdictional. That particular deadline is set in 8 U.S.C. § 1252(b)(1). To understand when the deadline is up, however, it is necessary to know when an order of removal becomes "final." Our decision today also answers that question. An order of removal is not final until a decision has been made on the alien's request for withholding of removal.

Applying those conclusions to this case, we rule that the petitioner, Carlos Inestroza-Tosta, timely sought review of the Board of Immigration Appeals' denial of his requests for statutory withholding of removal and relief under the Convention Against Torture. Nevertheless, his petition fails on the merits. Although he suffered persecution in the past, he cannot demonstrate a clear probability of future harm based on a protected status or trait, as required by 8 U.S.C. § 1231(b)(3). Accordingly, while his petition for review was timely, it must be denied.

II. BACKGROUND

A. Statutory Background

When an alien unlawfully reenters the United States after having been previously removed, "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed," and "the alien is not eligible and may not apply for any relief[.]" 8 U.S.C. § 1231(a)(5). In short, he can be removed "at any time." Id. An alien subject to a reinstated removal order may, however, seek to remain in the United States through withholding of removal if he claims a reasonable fear of persecution or torture if he were sent back to his home country. When that kind of claim is made, the alien is directed to an asylum officer for a reasonable-fear interview. 8 C.F.R. § 241.8(e). If the asylum officer finds that the alien "has not established a reasonable fear of persecution or torture," the alien may ask an immigration judge ("IJ") to review that determination. 8 C.F.R. § 208.31(f). If the IJ disagrees with the asylum officer's determination, the IJ places the alien in "withholding-only proceedings," Johnson v. Guzman Chavez, 594 U.S. 523, 530, 141 S.Ct. 2271, 210 L.Ed.2d 656 (2021), and then determines de novo the alien's eligibility for withholding of removal. 8 C.F.R. § 208.31(g)(2).

In that circumstance, the alien may seek two forms of relief that fall under the category of withholding of removal: statutory withholding of removal under 8 U.S.C. § 1231(b)(3) and withholding relief under the Convention Against Torture¹ ("CAT relief") (collectively, "withholding-only relief"). To be eligible for statutory withholding of removal, the alien must show that his "life or freedom would be threatened in [his] country because of [his] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). To be eligible for CAT relief, he must show that "it is more likely than not that he . . . would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2).

B. Factual Background

Carlos Alberto Inestroza-Tosta, a native and citizen of Honduras, illegally entered the United States in 2006. The Department of Homeland Security ("DHS") removed him to his home country later that year, but Inestroza-Tosta illegally re-entered the U.S. in 2008. He was removed again. He then came back illegally for a third time in 2010. On March 5, 2021, government agents apprehended Inestroza-Tosta after his arrest in New Jersey for aggravated assault. His prior order of removal was reinstated.

Inestroza-Tosta responded to the threat of a third deportation by claiming that he feared returning to Honduras. Consequently, he was referred to an asylum officer, who determined that he did not have a reasonable fear of persecution or torture if sent to his home country. An IJ disagreed with that assessment, vacated the asylum officer's finding, and placed Inestroza-Tosta in withholding-only proceedings. Inestroza-Tosta then filed an application for statutory withholding of removal and CAT relief with United States Citizenship and Immigration Services ("USCIS").

In March 2021, he also applied to USCIS for a so-called "U visa." Such a visa is available to an alien who has "suffered substantial physical or mental abuse as a result of having been a victim" of certain crimes, and who has been helpful to law enforcement in "investigating or prosecuting [the] criminal activity" upon which his petition is based.² 8 U.S.C. § 1101(a)(15)(U)(i); see 8 C.F.R. § 214.14(b). Inestroza-Tosta claimed to be eligible for a U visa because, two years earlier, he had been violently attacked by three individuals in New Jersey and afterwards helped law enforcement investigate the crime. Hoping he would obtain a U visa, Inestroza-Tosta asked for his withholding-only hearing to be continued, pending a decision on his U visa application. The IJ delayed Inestroza-Tosta's withholding-only hearing four times, the last for technical difficulties.

Eventually, the IJ set a date for the hearing, but Inestroza-Tosta tried to have his withholding-only proceedings administratively closed.³ The government opposed the request, and the IJ took the government's side. The IJ doubted that administrative closure was available during withholding-only proceedings because precedent from the Board of Immigration Appeals ("BIA") providing for administrative closure concerned aliens whose removal was actively in litigation, not ones who, like Inestroza-Tosta, had already been ordered to leave. Furthermore, while the IJ "believe[d] the applicant's pending U visa application . . . to be particularly strong . . . considering the injuries that were suffered by the applicant in the aggravated assault attack," the IJ considered the prospect of a visa grant to be too speculative, given USCIS's more than three-month delay in processing Inestroza-Tosta's U visa application. (A.R. at 23.) Because closing or continuing the proceedings would "result in undue delay and could result in prolonged detention of this applicant indefinitely[,]" the IJ denied Inestroza Tosta's motion for administrative closure. (A.R. at 23.)

The IJ then took up Inestroza-Tosta's motions for statutory withholding of removal and CAT relief. Inestroza-Tosta testified that, in his hometown of Tegucigalpa, Honduras, he had various encounters with members of MS-13, a notorious criminal gang. Gang members had menaced him and his friends at school, threatening violence if they did not join the gang. Those threats were made real sometime in 2001 or 2002 when gang members stabbed Inestroza-Tosta in the arm when he rebuffed their recruitment efforts. He never saw the same individual attackers again.

After completing school, Inestroza-Tosta moved in with his grandfather in Jesus de Otoro to avoid MS-13. It didn't work. In June 2007, five other members of MS-13 attacked him, and he was wounded with a machete under his left shoulder blade because he refused to sell drugs for the gang. He did not know his attackers' names but recognized them as local drug dealers. Inestroza-Tosta was hospitalized for two days. He thinks the police arrested his attackers for a night and released them, but he does not know for sure and never saw them again. Worried that the gang would kill him, Inestroza-Tosta fled to Olancho, a three-to five-hour bus ride away. A year or two later, while in Olancho, his apartment building was shot at, but he was not hit. He believed he was being targeted by MS-13 again. Aside from MS-13, Inestroza-Tosta did not identify anyone else whom he feared.

While the IJ believed Inestroza-Tosta's testimony and considered the 2007 attack to be persecution and torture, he held that Inestroza-Tosta had failed to establish that he was attacked because of his membership in a particular social group ("PSG"), as required by 8 U.S.C. § 1231(b)(3). Nor was his proffered PSG - namely those who are "gang [ ] violence recipient[s]" - recognized by law. (A.R. at 27.) Likewise, Inestroza-Tosta had not demonstrated an objective fear of future harm. He did not assert that MS-13 was tracking him or would likely target him if he returned to Honduras, fourteen years after they attacked him in Jesus de Otoro. Finally, Inestroza-Tosta could only speculate that MS-13 had shot at his apartment in Olancho. Thus, the IJ denied his motion for statutory withholding of removal.

The IJ also denied his application...