Martinez v. Garland

86 F.4th 561

Jose Antonio MARTINEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.American Civil Liberties Union, Amicus Supporting Jurisdiction,andPierre Riley, Amicus Supporting Petitioner.

No. 22-1221

United States Court of Appeals, Fourth Circuit

Argued: May 3, 2023

Decided: November 16, 2023

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED: Michael Evertsen Ward, ALSTON & BIRD, LLP, Washington, D.C., for Petitioner. Robert Dale Tennyson, Jr., UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian Boynton, Principal Deputy Assistant Attorney General, Carl McIntyre, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Lee Gelernt, Anand Balakrishnan, New York, New York, Cody Wolfsy, Immigrants' Rights Project, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, San Francisco, California, for Amicus American Civil Liberties Union. Dimitar P. Georgiev-Remmel, Washington, D.C., Keith Bradley, SQUIRE PATTON BOGGS (US) LLP, Denver, Colorado, for Amicus Pierre Riley.

Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit Judge.

Dismissed by published opinion. Judge Rushing wrote the majority opinion, in which Chief Judge Diaz joined. Senior Judge Floyd wrote an opinion concurring in the judgment.

RUSHING, Circuit Judge:

After Jose Antonio Martinez illegally reentered the United States, the Department of Homeland Security (DHS) reinstated the removal order previously entered against him. Martinez expressed fear of returning to his native country and was placed in withholding-only proceedings. The immigration judge and the Board of Immigration Appeals denied relief, and Martinez petitioned our Court for review within 30 days of the Board's decision. But that decision was not a "final order of removal." 8 U.S.C. § 1252(b)(1). Because Martinez did not timely file his petition within 30 days of any final order of removal, the Immigration and Nationality Act (INA) deprives us of jurisdiction to consider it.

I.

Martinez, a native and citizen of Honduras, entered the United States without inspection in 2004. DHS apprehended him in 2013 and placed him in removal proceedings. During those proceedings, Martinez expressed fear of the gangs in Honduras, who had targeted and killed his family members. He also admitted that, before he came to the United States, he had killed a man with a machete, was convicted of homicide, and spent seven years in prison as a result. An immigration judge ordered Martinez removed in 2018, and DHS removed him to Honduras in early 2019.

Two months later, Martinez illegally reentered the United States. DHS apprehended him again in 2020. Because Martinez had already been ordered removed, he was subject to the streamlined removal process for illegal reentrants.¹

In such cases, "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed." 8 U.S.C. § 1231(a)(5). An immigration officer simply obtains the alien's prior order of removal, confirms the alien's identity, and determines whether the alien's reentry was unauthorized. 8 C.F.R. § 241.8(a)(1)-(3). The alien receives written notice of the immigration officer's determination and the opportunity to contest it. Id. § 241.8(b). If the officer declines to reconsider his determination, he reinstates the prior removal order and "the alien shall be removed." Id. § 241.8(c); see 8 U.S.C. § 1231(a)(5) ("[T]he alien shall be removed under the prior order at any time after the reentry."). The alien has no right to a hearing before an immigration judge. 8 C.F.R. § 241.8(a).

Although an illegal reentrant may not challenge a reinstated removal order and may not pursue discretionary relief like asylum, see 8 U.S.C. § 1231(a)(5), he nevertheless may seek to prevent DHS from removing him to the particular country designated in his reinstated removal order. See Johnson v. Guzman Chavez, — U.S. —, 141 S. Ct. 2271, 2282, 210 L.Ed.2d 656 (2021). Two avenues of relief are available: statutory withholding of removal under 8 U.S.C. § 1231(b)(3)(A) and protection under regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Section 1231(b)(3)(A) prohibits the government from removing an alien to a country where his "life or freedom would be threatened . . . because of [his] race, religion, nationality, membership in a particular social group, or political opinion." And the CAT forbids the government from removing an alien to a country where he is likely to be tortured. See 8 U.S.C. § 1231 note (United States Policy with Respect to Involuntary Return of Persons in Danger of Subjection to Torture); see also 8 C.F.R. § 208.16(c). But withholding of removal is not available via either path if "there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States." 8 U.S.C. § 1231(b)(3)(B)(iii); 8 C.F.R. § 208.16(d)(2); cf. 8 C.F.R. § 208.17 (deferral of removal under the CAT for aliens subject to mandatory denial of withholding of removal under 8 C.F.R. § 208.16(d)(2)).

The process for seeking statutory withholding or CAT protection goes as follows. When an alien subject to a reinstated removal order expresses fear of returning to his native country, an asylum officer will interview him. 8 C.F.R. § 241.8(e); see id. § 208.31(a)-(c). If the asylum officer determines that the alien has a reasonable fear of persecution or torture, he refers the case to an immigration judge for full consideration of the alien's entitlement to statutory withholding or CAT protection. Id. §§ 208.31(e), 1208.31(e). These are called "withholding-only" proceedings. See Guzman Chavez, 141 S. Ct. at 2282-2283. If, however, the asylum officer finds that the alien does not have a reasonable fear of persecution or torture, the alien is entitled to have that finding reviewed by an immigration judge. 8 C.F.R. §§ 208.31(g), 1208.31(g). If the immigration judge agrees with the asylum officer, the alien is removed. Id. § 1208.31(g)(1). But if the immigration judge concludes that the alien does have a reasonable fear, then the immigration judge will conduct withholding-only proceedings to consider in full the alien's claim to withholding of removal or CAT protection. Id. § 1208.31(g)(2). A dissatisfied litigant can appeal the immigration judge's withholding-only decision to the Board. Id. § 1208.31(e), (g)(2)(ii).

In this case, the immigration officer reinstated Martinez's order of removal on January 15, 2020. Martinez did not contest the immigration officer's determination, but he expressed fear of persecution or torture in Honduras. The asylum officer interviewed Martinez and determined he had not established a reasonable fear of persecution or torture. Martinez sought review of that decision, and the immigration judge disagreed with the asylum officer, concluding that Martinez had shown a reasonable fear. As a result, Martinez's case was moved to withholding-only proceedings to determine whether he was entitled to statutory withholding or CAT protection.

Upon full consideration of Martinez's claims, the immigration judge denied relief. Based largely on Martinez's testimony in his initial removal proceedings that he had murdered a man with a machete, the immigration judge found serious reasons for believing that Martinez committed a serious nonpolitical crime before he arrived in the United States. As a result, Martinez was ineligible for withholding of removal under Section 1231(b)(3)(A) or the CAT. See 8 U.S.C. § 1231(b)(3)(B)(iii); 8 C.F.R. § 208.16(d)(2). The immigration judge also denied deferral of removal under the CAT, concluding Martinez had not shown that the Honduran government would acquiesce in his torture.

Martinez appealed, and on February 25, 2022, the Board affirmed. On March 3, 2022, Martinez filed a petition for review with this Court.

II.

We have an independent obligation to assure ourselves of jurisdiction to decide an appeal. See Sprint Nextel Corp. v. Wireless Buybacks Holdings, LLC, 938 F.3d 113, 122 (4th Cir. 2019). After receiving supplemental briefs from the parties on this topic, we conclude that we lack jurisdiction to resolve Martinez's petition for review because he did not file it within 30 days of a final order of removal.

A.

We begin with the INA. Section 1252 authorizes us to review only "final order[s] of removal." 8 U.S.C. § 1252(a)(1); see Amaya v. Rosen, 986 F.3d 424, 429 (4th Cir. 2021) ("The [INA] limits this Court's jurisdiction to final orders of removal."). An order of removal is an order of an authorized official "concluding that the alien is deportable or ordering deportation."² 8 U.S.C. § 1101(a)(47)(A); see Kouambo v. Barr, 943 F.3d 205, 209 (4th Cir. 2019). That order becomes final when the Board of Immigration Appeals affirms it or when the time for seeking Board review expires, whichever comes first. See 8 U.S.C. § 1101(a)(47)(B)(i)-(ii). Under Section 1252's "zipper clause," once we have a final order of removal before us, we can consider along with it "all questions of law and fact . . . arising from any action taken or proceeding brought to remove [the] alien from the United States." 8 U.S.C. § 1252(b)(9); see Guerrero-Lasprilla v. Barr, — U.S. —, 140 S. Ct. 1062, 1070, 206 L.Ed.2d 271 (2020). But review of such questions is "available only in judicial review of a final order" of removal. 8 U.S.C. § 1252(b)(9).

To obtain judicial review, an alien must file a petition for review within 30 days "of the final order of removal." Id. § 1252(b)(1); see id. § 1252(a)(5) ("[A] petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal."). The 30-day deadline is " ...