The Seventh Circuit recently considered its authority to review the denial of withholding of removal in withholding-only proceedings following reinstatement of a prior final order of removal. F.J.A.P. v. Garland, No. 21-2284 (7th Cir. Feb. 27, 2024). The court concluded that that a reinstated order of removal was not final for purposes of judicial review under 8 USC § 1252 until the agency had completed withholding proceedings under the Convention Against Torture (CAT), including the subsection requiring a petition for judicial review of a removal order to be filed within 30 days of the final order of removal.

The appellate court was reviewing a decision by the Board of Immigration Appeals (BIA) concerning Mr. F.J.A.P., a petitioner from El Salvador. F.J.A.P. had been removed from the United States to El Salvador in 2010. However, he eventually returned to the United States in response to threats from the MS-13 gang and after having filed a report to the police. After his return, DHS reinstated his original removal order. Mr. F.J.A.P. then applied for withholding-only relief under the CAT, which an immigration judge granted. However, the BIA reversed this decision in a brief two-page order. Mr. F.J.A.P. petitioned the Seventh Circuit for review while the appellate court stayed the petitioner’s physical removal pending a decision on the petition for review.

The court first addressed whether it had jurisdiction to review Mr. F.J.A.P.’s claim. In reviewing the statute, 8 USC § 1252, the Seventh Circuit interpreted the plain meaning of the term "final" to mean that a reinstatement order does not become final for purposes of judicial review until the agency has also concluded withholding proceedings. The court also found that the plain meaning of “final” tracks legal understanding and pointed to Black’s Law Dictionary definition of final as “last; conclusive; definitive; terminated; completed,” and in reference to legal actions, “a judgment is ’final’ if no further judicial action…is required” (6th ed. 1990). The court concluded that a reinstatement order does require further agency action when a noncitizen enters withholding proceedings.

Even though the noncitizen has been determined deportable, the agency’s work is not completed, and it may not remove the noncitizen until agency withholding review is complete. See 8 CFR § 1208.5(a) (explaining that a noncitizen cannot be removed “before a decision is rendered on his or her…application”). The court reaffirmed its prior precedent holding the 30-day deadline to petition for review post BIA-final order of removal is a nonwaivable jurisdictional requirement and not a waivable, mandatory, claims-processing rule. Thus, a petitioner must petition for review within 30 days of a final order of removal in the Seventh Circuit with no exceptions. Here, the petitioner’s removal order became final in 2010 and this removal order was reinstated approximately a year and a half before the petition for review was filed. Mr. F.J.A.P. petitioned for review within 30 days of the BIA’s denial of his withholding and CAT applications following reinstatement of the final order, thus his petition was timely filed with the court, despite the long passage of time from the issuance of the reinstatement order.

The court proceeded to address the merits of the case, finding that the BIA had not applied the correct standard of review to the immigration judge’s (IJ) decision. The BIA was required to review the immigration judge’s factual findings for clear error, not apply a de novo review. However, the BIA failed to address the immigration judge’s key factual findings and instead gave more weight to certain facts than others. The court also found that the BIA did not adequately explain how the IJ erred in concluding that noncitizen would likely be tortured for having reported the MS-13’s threats to the police, which the IJ based on record evidence including a State Department country conditions report indicating gangs controlled Salvadoran police. The court thus granted Mr. F.J.A.P.’s petition and remanded the case to the BIA for reconsideration of the immigration judge’s decision under the correct standard of review.

Implications for Practitioners

The Seventh Circuit’s holding affirms the increasing and favorable trend for circuit courts to allow for judicial review of final orders of removal under 8 USC § 1252. See Argueta-Hernandez v. Garland, 87 F.4th 698 (5th Cir. 2023) (finding that the 30-day filing deadline following withholding proceedings runs from the BIA’s final order at the conclusion of those proceedings); Kolov v. Garland, 78 F.4th 911 (6th Cir. 2023) (affirming that a noncitizen subject to a reinstated removal order files a timely petition for review if it is filed within 30 days of the agency’s dismissal of his withholding of removal and protection under the CAT claims); Alonso-Juarez v. Garland, 80 F.4th 1039 (9th Cir. 2023) (finding that a noncitizen's reinstated removal order became final, for purposes of time limit for judicial review, upon conclusion of reasonable-fear proceedings); and Arostegui-Maldonado v. Garland, 75 F.4th 1132 (10th Cir. 2023) (finding that a reinstated removal order became final for purposes of judicial review at conclusion of withholding-of-removal proceedings before BIA).

However, under Second Circuit and Fourth Circuit precedents, Mr. F.J.A.P.’s petition for review would not be timely. For instance, the Second Circuit has held that the denial of withholding was not a “final order of removal” that the court could review and the time to appeal a deportation-reinstatement decision runs from the final reinstatement decision. Bhaktibhai-Patel v. Garland, 32 F.4th 180 (2d Cir. 2022). The Fourth Circuit similarly held that it lacked jurisdiction to review petitioner’s petition for review of the BIA’s denial of relief in withholding-only proceedings because he did not file the petition within 30 days of the reinstatement order. The court concluded that withholding-only orders do not affect removability thus depriving the court of jurisdiction to consider his withholding-only claims. Martinez v. Garland, 86 F.4th 561 (4th Cir. 2023).

Practitioners in the Second and Fourth circuits should carefully review this Seventh Circuit decision when arguing that their circuit court has authority to review the BIA’s denial of withholding of removal or CAT protection if filed within 30 days of that denial. This is true even if the final order of removal in withholding-only proceedings following reinstatement has been final for many years.