    Case: 16-60085    Document: 00513524934     Page: 1   Date Filed: 05/27/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                 No. 16-60085                             FILED
                                                                      May 27, 2016
                                                                     Lyle W. Cayce
                                                                          Clerk
KATHERINE CHRISTEL PONCE-OSORIO,

                                           Petitioner,

versus

JEH JOHNSON, Secretary, Department of Homeland Security,

                                           Respondent.




                       Petition for Review of an Order of
                     the Department of Homeland Security




Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:

      Katherine Ponce-Osorio filed a petition challenging a decision of the
Department of Homeland Security (“DHS”) to reinstate an expedited order of
removal. In response, the Secretary of DHS moved to dismiss for want of jur-
isdiction. Although Ponce-Osorio agrees we lack jurisdiction, she wisely pro-
tects her appellate rights by formally opposing the motion but seeking a declar-
ation of this circuit’s rule of finality as it pertains to this circumstance.
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                                 No. 16-60085
Agreeing with both sides, we dismiss the petition for review for want of
jurisdiction.

                                        I.
      Ponce-Osorio is a native and citizen of El Salvador who was removed
from the United States pursuant to a February 4, 2015, expedited order of
removal. On March 16, 2015, she illegally reentered the United States. Three
days later, DHS reinstated the order of removal, but, determining that she had
a reasonable fear of persecution, referred the matter to an immigration judge
(“IJ”) for full consideration of the request for withholding of removal.

      Before the IJ, Ponce-Osorio requested not only withholding of removal
but also asylum. Although the IJ decided that she was ineligible for asylum,
he granted a withholding of removal. Ponce-Osorio then appealed two issues
to the Board of Immigration Appeals (“BIA”): (1) whether issuance of the
underlying expedited order of removal was a gross miscarriage of justice
because border officials had denied her right to an interview regarding credible
fear and (2) whether the DHS regulation, limiting her to a withholding-of-
removal proceeding before the IJ, conflicted with the asylum statute.

      On January 29, 2016, the BIA dismissed the appeal. The BIA concluded
that Ponce-Osorio’s eligibility for asylum was foreclosed by Ramirez-Mejia v.
Lynch, 794 F.3d 485 (5th Cir. 2015), and noted that it lacked jurisdiction to
consider her collateral challenge to the underlying expedited order of removal.
But observing that Ponce-Osorio appeared to be eligible for withholding of
removal, the BIA remanded to the IJ “for the purpose of allowing [DHS] the
opportunity to complete or update identity, law enforcement, or security inves-
tigations or examinations, and further proceedings, if necessary, for the entry
of an order as provided by 8 C.F.R. § 1003.47(h).” Within thirty days of the
BIA’s decision, Ponce-Osorio filed a petition with this court to review DHS’s
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                                      No. 16-60085
reinstatement of the expedited order of removal.

                                             II.
       Section 242 of the Immigration and Nationality Act (“INA”) confers jur-
isdiction on the courts of appeals to review final orders of removal. 8 U.S.C.
§ 1252(a)(1). An order of removal is an administrative order “concluding that
the alien is deportable or ordering deportation.” Id. § 1101(a)(47)(A). 1 Al-
though that statutory definition does not encompass reinstatement orders,
which “merely reinstate[] a previously issued order of removal or deportation,”
reinstatement orders nevertheless qualify as orders of removal under our
caselaw and thus are subject to judicial review when they are also “final”
orders. Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002).

       Review of final reinstatement orders is extremely limited.                 We may
review the lawfulness of a reinstatement order but, in general, not the merits
of the underlying order of removal. Id. We may, however, entertain a “collat-
eral attack on an underlying order of removal, including constitutional or legal
questions . . . if the alien demonstrates that administrative remedies have been
exhausted or the initial removal proceedings constituted a gross miscarriage
of justice.” Martinez v. Johnson, 740 F.3d 1040, 1042 (5th Cir. 2014).

       The instant motion to dismiss brings to this circuit an issue of first
impression: when a reinstatement order becomes final for purposes of judicial
review. Under Section 242, an “order” becomes final “upon the earlier of—(i) a
determination by the [BIA] affirming such order; or (ii) the expiration of the
period in which the alien is permitted to seek review of such order by the
[BIA].”    8 U.S.C. § 1101(a)(47)(B).         That statutory definition of finality,


       1 The INA uses the term “order of deportation,” but its definition likewise applies to
the post-REAL ID Act term “order of removal.” Abdisalan v. Holder, 774 F.3d 517, 523 n.6
(9th Cir. 2014) (en banc).
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                                    No. 16-60085
however, provides little assistance, because DHS regulations confer no means
to appeal the reinstatement of a removal order to the BIA. See 8 C.F.R. § 241.8.

      We could decide that a reinstatement order becomes final upon comple-
tion of the procedures necessary to reinstate a removal order. An alien who
illegally reenters the United States after having been removed or having vol-
untarily departed while under a removal order shall be removed by reinstating
the removal order. Id. § 241.8(a). To reinstate that order, the immigration
officer must determine (1) whether the alien has been subject to a prior order
of removal; (2) the identity of the alien; and (3) whether the alien reentered the
United States illegally. Id. If the officer determines that those requirements
are met, the alien must be provided with a written notice of the determination,
id. § 241.8(b), and then removed under the prior order of removal, id.
§ 241.8(c). The alien has no right to a hearing before an IJ. Id. § 241.8(a).

      Holding that finality turns solely on completion of the procedures neces-
sary to reinstate a removal order would completely preclude judicial review for
Ponce-Osorio, because she failed to file her petition for review within thirty
days of March 19, 2015. 2        It would also undermine judicial efficiency by
possibly requiring several separate petitions for review rather than a single
consolidated petition. For those reasons, among others, we conclude that an
order of reinstatement is not always final upon completion of the procedures
in 8 C.F.R. § 241.8(a), (b), and (c).

      Though an alien who meets the requirements for reinstatement of a
removal order “shall be removed” under the reinstated order, id. § 241.8(c),
there is an exception for an alien who “expresses a fear of returning to the




      2  See Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003) (holding that
thirty-day deadline for filing a petition for review is jurisdictional).
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                                  No. 16-60085
country designated in the order,” id. § 241.8(e). Such an alien will be referred
to an asylum officer, who must “determine whether the alien has a reasonable
fear of persecution or torture.” Id. If the officer finds reasonable fear, the case
is referred to an IJ “for full consideration of the request for withholding of
removal only.” Id. § 208.31(e).

      If the asylum officer decides that the alien does not have a reasonable
fear, the alien may appeal to an IJ. Id. § 208.31(g). If the IJ agrees with the
finding of no reasonable fear, the case is returned to DHS for removal. Id.
§ 208.31(g)(1). But if the IJ disagrees with that finding and decides that there
is reasonable fear, the alien can file an “Application for Asylum and Withhold-
ing of Removal.” Id. § 208.31(g)(2). The IJ can consider only the application
for withholding of removal. Id. § 208.31(g)(2)(i). Either party may appeal the
IJ’s decision to the BIA. Id. § 208.31(g)(2)(ii).

      The Tenth Circuit has provided a compelling analysis of why reinstate-
ment orders should be regarded as final only upon completion of reasonable-
fear and withholding-of-removal proceedings:
       The term “final” in its usual legal sense means “ending a court
   action or proceeding leaving nothing further to be determined by the
   court or to be done except the administrative execution of the court’s
   finding, but not precluding an appeal.” Webster’s Third New Int’l Dic-
   tionary 851 (1993) . . . . With regard to agency action generally, the
   Supreme Court has said that to be final, agency action must “mark the
   consummation of the agency’s decisionmaking process,” and it must
   determine “rights or obligations” or occasion “legal consequences.” Ben-
   nett v. Spear, 520 U.S. 154, 178 . . . (1997) (internal quotations omitted)
   (considering finality under the Administrative Procedures Act) . . . .
          When an alien pursues reasonable fear [and withholding of re-
   moval] proceedings, the reinstated removal order is not final in the
   usual legal sense because it cannot be executed until further agency
   proceedings are complete. And, although the reinstated removal order
   itself is not subject to further agency review, an IJ’s decision on an
   application for relief from that order is appealable to the BIA. Thus,

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                                         No. 16-60085
    the rights, obligations, and legal consequences of the reinstated re-
    moval order are not fully determined until the reasonable fear and
    withholding of removal proceedings are complete.
Luna-Garcia v. Holder, 777 F.3d 1182, 1185 (10th Cir. 2015). 3

       We agree with the Tenth Circuit’s analysis and conclude that it applies
even where, as here, withholding-of-removal proceedings remain ongoing only
because the BIA has remanded to the IJ for background and security checks.
Since April 1, 2005, DHS regulations have required such checks when the
granting of any form of relief in immigration proceedings would permit an alien
to reside in the United States. 4 If the appropriate background and security
checks have not been conducted or are no longer current, the BIA is prohibited
from issuing a decision affirming or granting any form of relief or protection
from removal. 8 C.F.R. § 1003.1(d)(6)(i).

       In such cases, the BIA “may issue an order remanding the case to the
[IJ] with instructions to allow DHS to complete or update the appropriate
identity, law enforcement, or security investigations or examinations . . . .” Id.
§ 1003.1(d)(6)(ii)(A). On remand, the IJ reacquires jurisdiction over the entire
proceedings 5 but may not reconsider issues that were previously considered
and decided by the BIA. 6 Before the IJ may enter an order, the IJ must



       3  The Ninth Circuit likewise has held―but for different reasons―that a reinstatement
order is not final until after completion of reasonable-fear and withholding-of-removal pro-
ceedings. According to that court, treating a reinstated removal order as final, despite on-
going reasonable-fear or withholding-of-removal proceedings, would make it impossible for
an alien to petition timely for review of any “yet-to-be-issued” decisions by the IJ denying
relief or finding that the alien lacks a reasonable fear of persecution. Ortiz-Alfaro v. Holder,
694 F.3d 955, 958 (9th Cir. 2012).
       4Background and Security Investigations in Proceedings Before Immigration Judges
and the Board of Immigration Appeals, 70 Fed. Reg. 4743, 4753 (Jan. 31, 2005) (codified at
8 C.F.R. §§ 1003.47(a), (b)).
       5   Matter of M-D-, 24 I. & N. Dec. 138, 141 (BIA 2007).
       6   Id.; Matter of Alcantara-Perez, 23 I. & N. Dec. 882, 884 (BIA 2006).
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                                         No. 16-60085
consider any new evidence revealed by the background and security checks and
potentially affecting relief. 7 The IJ may also “consider additional evidence if it
is material, was not previously available, and could not have been discovered
or presented at the former hearing.” 8

       In Abdisalan, the Ninth Circuit adopted the bright-line rule that “when
the [BIA] issues a decision that denies some claims but remands any other
claims for reliefs to an [IJ] . . . for further proceedings . . . , the BIA decision is
not a final order of removal with regard to any of the claims . . . .” Abdisalan,
774 F.3d at 520 (internal footnote omitted). The court noted that a “straight-
forward” reading of 8 U.S.C. § 1101(a)(47)(B)’s definition of finality “indicates
that an order of removal cannot become final for any purpose when it depends
on the resolution of further issues by the IJ on remand.” Id. at 523. The INA
refers repeatedly to “the” order in the singular, “suggest[ing] that Congress
contemplated that an alien’s removal proceedings would typically culminate in
one final order of removal.” But “[i]f there is only one final order of removal—
as is true in the absence of a motion to reopen or reconsider—it is difficult to
conceive how the order could become final at multiple points in time.” Id.
at 524. The court also noted that considerations of judicial efficiency weigh in
favor of its holding. Id. at 526.

       Decisions of both the BIA and the Eighth Circuit support the Ninth Cir-
cuit’s bright-line rule. 9 But that rule conflicts with decisions of the Third and
Seventh Circuits. In Yusupov v. Attorney General, 518 F.3d 185, 196 & n.19
(3d Cir. 2008), the Third Circuit articulated a case-by-case test for jurisdiction,



       7   Matter of M-D-, 24 I. & N. Dec. at 141.
       8   Id.
       9Goromou v. Holder, 721 F.3d 569, 576 n.6 (8th Cir. 2013); Matter of M-D-, 24 I. & N.
Dec. 138; Matter of Alcantara-Perez, 23 I. & N. Dec. 882.
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                                  No. 16-60085
holding that it has jurisdiction only where the BIA’s remand to the IJ for
background and security checks cannot affect the outcome of the removal pro-
ceedings. In Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008), the Seventh
Circuit exercised jurisdiction over a petition to review a BIA decision remand-
ing for background and security checks. The IJ had denied the applications for
asylum but granted withholding of removal. On appeal, the BIA endorsed the
IJ’s decision but remanded for background and security checks to ensure
eligibility for withholding of removal. The Seventh Circuit held that it had
jurisdiction to hear the petitioners’ appeal of the BIA’s denial of their applica-
tions for asylum because the government’s position―that the BIA’s order was
non-final―“leaves the aliens trapped: They can’t seek judicial review of the
asylum question because the [BIA’s] order is non-final, and they can’t seek
review of the IJ’s decision because it is favorable.” Id. at 513.

      We agree with Abdisalan and adopt its bright-line rule that, when the
BIA decides some issues but remands for background and security checks as
to others, its decision is not final for purposes of judicial review. The Seventh
Circuit’s concern in Viracacha is misplaced, because, at least in our circuit, a
petitioner will be able to appeal a non-remanded issue once the IJ on remand
has entered a final order of removal.

      It follows that here, the removal proceedings are ongoing because the
BIA remanded to the IJ for background and security checks. The reinstate-
ment order is thus non-final, and we lack jurisdiction over Ponce-Osorio’s peti-
tion for review. The Secretary’s motion is GRANTED, and the petition for
review is DISMISSED for want of jurisdiction.




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