                Case: 14-15359     Date Filed: 05/02/2016     Page: 1 of 8


                                                                              [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 14-15359
                             ________________________

                              Agency No. A093-106-814


DINO JIMENEZ-MORALES,

                                                                      Petitioner,

versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.
                             ________________________

                        Petition for Review of a Decision of the
                          Department of Homeland Security
                              ________________________

                                      (May 2, 2016)

Before MARCUS, JORDAN, and WALKER, * Circuit Judges.

JORDAN, Circuit Judge:

         In October of 2014, after having been removed to Colombia, Dino Jimenez-

Morales unsuccessfully tried to re-enter the United States without authorization

*
 Honorable John M. Walker, Jr., Circuit Judge for the United States Court of Appeals for the
Second Circuit, sitting by designation.
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near Hidalgo, Texas. The Department of Homeland Security took Mr. Jimenez-

Morales into custody and, acting pursuant to 8 U.S.C. § 1231(a)(5),

administratively reinstated his 2011 order of removal on November 1, 2014. See

Supp. A.R. 48. Because Mr. Jimenez-Morales expressed concern that he would be

harmed if returned to Colombia, he was placed in a reasonable fear proceeding

pursuant to 8 C.F.R. § 208.31. In December of 2014, before the reasonable fear

proceeding had concluded, Mr. Jimenez-Morales filed a petition for review in this

court.

         Prior to oral argument in this case, an asylum officer found that Mr.

Jimenez-Morales did not have a reasonable fear of persecution or torture if he were

removed to Colombia. See Supp. A.R. 44-47. An immigration judge, following a

hearing, ratified the asylum officer’s finding. The immigration judge found that

Mr. Jimenez-Morales did not have a reasonable fear of persecution or torture, that

he had no basis for withholding of removal, and that he could not obtain relief

under the Convention Against Torture, 8 C.F.R. § 208.18. See Supp. A.R. at 1-10.

Pursuant to 8 C.F.R. 208.31(g)(1), no further administrative appeal was available

to Mr. Jimenez-Morales from the immigration judge’s decision.

                                         I

         We first address whether we have jurisdiction to consider the petition.

When Mr. Jimenez-Morales filed the petition for review in December of 2014,


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DHS’ reinstatement of the 2011 order of removal was not final because the

reasonable fear proceeding was ongoing. That presents a jurisdictional problem

because the Immigration and Nationality Act vests circuit courts with jurisdiction

to review only “final” orders of removal. See 8 U.S.C. § 1252(a)(1); Avila v. U.S.

Att’y Gen., 560 F.3d 1281, 1284 (11th Cir. 2009).

      We agree with the Ninth and Tenth Circuits that, where an alien pursues a

reasonable fear proceeding following DHS’ initial reinstatement of a prior order of

removal, the reinstated removal order does not become final until the reasonable

fear proceeding is completed. See Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th

Cir. 2012); Luna-Garcia v. Holder, 777 F.3d 1182, 1186 (10th Cir. 2015). This is

because the reinstated removal order cannot be executed (i.e., carried out) until the

reasonable fear proceeding is over. See Luna-Garcia, 777 F.3d at 1185.           The

government is therefore correct that we did not have jurisdiction when Mr.

Jimenez-Morales filed his petition for review.

      But that is not the end of the matter. As noted, before we heard oral

argument, an immigration judge found that Mr. Jimenez-Morales did not have a

reasonable fear of persecution or torture, had no basis for withholding of removal,

and could not obtain relief under the Convention Against Torture. With that

decision, the reasonable fear proceeding came to an end, as no further

administrative review was available to Mr. Jimenez-Morales. So the question we


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must address is whether the conclusion of the reasonable fear proceeding made Mr.

Jimenez-Morales’ premature 2014 petition for review ripen into one that gave us

jurisdiction.   The government says no, while Mr. Jimenez-Morales says yes.

Exercising plenary review on this jurisdictional question, see Alexis v. U.S. Att’y

Gen., 431 F.3d 1291, 1293 (11th Cir. 2005), we agree with Mr. Jimenez-Morales.

      The government’s position finds support in decisions of the Fifth and Sixth

Circuits. Those Circuits have ruled that if there is no judicially reviewable order at

the time a petition for review is filed, jurisdiction does not exist under 8 U.S.C. §

1252(a)(1), and later events (e.g., the BIA’s dismissal of an appeal) cannot cure

that jurisdictional defect. See Moreira v. Mukasey, 509 F.3d 709, 712–714 (5th

Cir. 2007); Jaber v. Gonzalez, 486 F.3d 223, 228-30 (6th Cir. 2007).

      The Second and Third Circuits, however, have come to a different

conclusion. They generally hold that if a petition for review is premature when

filed, the petition becomes ripe (and jurisdiction vests) when subsequent agency

action renders the initial ruling final, and the petition can be adjudicated if no

action has been taken on the merits and there is no prejudice to the government.

See Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir. 2010); Khan v. U.S.

Att’y Gen., 691 F.3d 488, 494 (3d Cir. 2012).

      The question is not an easy one to answer, but we side with the Second and

Third Circuits because their approach is consistent with how we have addressed


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premature appeals in other contexts. In Robinson v. Tanner, 798 F.2d 1378 (11th

Cir. 1986), we harmonized our prior cases dealing with premature appeals and

derived two principles from those decisions. We explained that a premature notice

of appeal is valid if it is filed from an order dismissing a claim or party, and is

followed by a subsequent final judgment, even without a new notice of appeal

being filed. See id. at 1385 (citing Jetco Elec. Indus. v. Gardiner, 473 F.2d 1228,

1231 (5th Cir. 1973)). In contrast, a premature notice of appeal filed from an

interlocutory order that is not immediately appealable is not cured by a subsequent

final judgment. See Robinson, 798 F.2d at 1385 (citing United States v. Taylor,

632 F.2d 530, 531 (5th Cir. 1980)).

      The scenario we have here is much closer to the first category of premature

appeals described in Robinson. We have held, and other circuits agree, that the

reinstatement of a prior order of removal is appealable under 8 U.S.C. § 1252. See

Avila, 560 F.3d at 1284. See also Anderson v. Napolitano, 611 F.3d 275, 277-78

(5th Cir. 2010); Ponta-Garcia v. U.S. Att’y Gen., 557 F.3d 158, 163 (3d Cir. 2009);

Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003). Had Mr. Jimenez-Morales not

alleged a reasonable fear of persecution and torture, he could have obtained

immediate judicial review of the reinstatement of his 2011 removal order.

      Stated differently, the initial reinstatement order here was not, in and of

itself, an interlocutory and unreviewable act on the part of DHS. That order was


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rendered non-final only because of the ongoing reasonable fear proceeding. So

once the immigration judge ruled adversely to Mr. Jimenez-Morales in the

reasonable fear proceeding, the reinstatement of the 2011 removal order became

final.    Given that we have not taken any action on the merits, and that the

government has not alleged or shown any prejudice that would result from judicial

review, we conclude that we have jurisdiction to consider the petition.              See

Herrera-Molina, 597 F.3d at 132; Khan, 691 F.3d at 494. Cf. United States v.

Curry, 760 F.2d 1079, 1080 (11th Cir. 1985) (premature notice of appeal following

jury verdict in criminal case was effective to perfect appeal as of date when

defendant was sentenced).         The government’s motion to dismiss is therefore

denied.

                                            II

         On the merits, Mr. Jimenez-Morales argues that he is entitled to political

asylum because he has shown that he suffered persecution in Colombia based on

imputed political opinion and membership in two social groups.                See, e.g.,

Petitioner’s Initial Br. at 8. The government responds that 8 U.S.C. § 1231(a)(5)

renders Mr. Jimenez-Morales ineligible for asylum.

         The full text of § 1231(a)(5) is as follows:

         If the Attorney General finds that an alien has reentered the United
         States illegally after having been removed or having departed
         voluntarily, under an order of removal, the prior order of removal is
         reinstated from its original date and is not subject to being reopened or
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      reviewed, the alien is not eligible and may not apply for any relief
      under this chapter, and the alien shall be removed under the prior
      order at any time after the reentry.


(emphasis added). The meaning and effect of this statutory provision presents a

question of law. See Chandris, Inc. v. Latsis, 515 U.S. 347, 369 (1995). As

explained below, we conclude that asylum is not available to Mr. Jimenez-

Morales.

      In relevant part, § 1231(a)(5) provides that an alien whose order of removal

is reinstated “is not eligible and may not apply for any relief under this chapter.”

Both § 1231 and 8 U.S.C. § 1158, the statute governing asylum, are part of Chapter

12 of Title 8 of the U.S. Code. As asylum is a form of relief from removal, see

Morales-Izquierdo v. Gonzales, 486 F.3d 484, 491 (9th Cir. 2007) (en banc) (“[t]he

types of relief from removal include . . . asylum”), we join the Second and Fifth

Circuits in holding that a person like Mr. Jimenez-Morales is not eligible for and

cannot seek asylum. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 489-90 (5th Cir.

2015); Herrera-Molina, 597 F.3d at 139.

      One final matter warrants discussion. The Supreme Court has written in

dicta that, despite § 1231(a)(5)’s “absolute terms in which the bar on relief is

stated,” an alien whose prior order of removal is reinstated may seek withholding

of removal (which it has described as “the possibility of asylum”). See Fernandez-

Vargas v. Gonzales, 548 U.S. 30, 35 n.4 (2006). This language from Fernandez-
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Vargas, however, does not mean that asylum is available to someone like Mr.

Jimenez-Morales. As the Second Circuit has explained, the regulations cited by

the Supreme Court in Fernandez-Vargas—8 C.F.R. §§ 208.31(e) & 241.8(e)—deal

only with the withholding of removal and do not address asylum. See Herrera-

Molina, 597 F.3d at 139 n.8.

                                      III

      Because Mr. Jimenez-Morales is not eligible for asylum, we deny his

petition.

      PETITION DENIED.




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