Alvarez Morales v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: March 8, 2023
• Docket: 21-6050
• Status: Unpublished

Opinion

21-6050 Alvarez Morales v. Garland Conroy, IJ A075 447 663 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 8th day of March, two thousand twenty- 5 three. 6 7 PRESENT: 8 ROBERT D. SACK, 9 RAYMOND J. LOHIER, JR., 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 BOLIVAR GEORDANO ALVAREZ 15 MORALES, 16 Petitioner, 17 18 v. 21-6050 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONER: James D. Brousseau, Esq., 27 Brousseau & Lee, PLLC, Falls 28 Church, VA. 29 1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 2 Attorney General; Jeffrey R. 3 Leist, Senior Litigation Counsel; 4 Jennifer A. Bowen, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a

9 decision of an Immigration Judge (“IJ”), it is hereby ORDERED,

10 ADJUDGED, AND DECREED that the petition for review is

11 DISMISSED.

12 Petitioner Bolivar Geordano Alvarez Morales, a native

13 and citizen of Ecuador, seeks review of a December 30, 2020

14 decision of an IJ affirming an asylum officer’s determination

15 that he did not establish a reasonable fear of persecution or

16 torture. In the Matter of Bolivar Geordano Alvarez Morales,

17 No. A075 447 663 (Immig. Ct. N.Y. City Dec. 30, 2020). We

18 assume the parties’ familiarity with the underlying facts and

19 procedural history.

20 The dispositive issue is whether we have jurisdiction to

21 review the IJ’s reasonable fear determination. We conclude

22 that we do not because our jurisdiction is limited to

23 petitions for review filed within 30 days of a final order of

24 removal. See Bhaktibhai-Patel v. Garland, 32 F.4th 180, 191

25 (2d Cir. 2022). 2 1 Alvarez Morales was removed from the United States in

2 1997 and reentered in 1999. The Department of Homeland

3 Security (“DHS”) reinstated his removal order in 2013,

4 subjecting him to removal under 8 U.S.C. § 1231(a)(5), which

5 provides a summary removal process. See Johnson v. Guzman

6 Chavez, 141 S. Ct. 2271, 2282 (2021) (citing 8 C.F.R.

7 §§ 241.8(a)-(c), 1241.8(a)-(c)). After a removal order is

8 reinstated, if the non-citizen “expresses a fear of returning

9 to the country designated in that [reinstated] order,” an

10 asylum officer determines whether the non-citizen has a

11 reasonable fear of persecution or torture. Bhaktibhai-Patel,

12 32 F.4th at 185 (citing 8 C.F.R. § 241.8(e)). That

13 determination is subject to review by an IJ. Id. (citing

14 8 C.F.R. § 208.31(e), (f)).

15 Where, as here, the IJ concurs with the asylum officer’s

16 finding that the non-citizen has not established a reasonable

17 fear of persecution or torture, the IJ returns the case to

18 DHS for removal of the non-citizen. Id. (citing 8 C.F.R.

19 § 208.31(g)(1)). The IJ’s concurrence and return of the case

20 is not itself a final order of removal because it does “not

21 determine whether ‘the alien is deportable or order[]

3 1 deportation,’” id. at 190 (quoting 8 U.S.C.

2 § 1101(a)(47)(A)), or “‘affect the validity’ of any

3 determination regarding an alien’s deportability or

4 deportation,” id. (quoting Nasrallah v. Barr, 140 S. Ct. 1683,

5 1691 (2020)). Our jurisdiction is limited to petitions for

6 review filed within 30 days of a “final order of removal.”

7 8 U.S.C. § 1252(a)(1), (b)(1); Bhaktibhai-Patel, 32 F.4th at

8 188. Accordingly, we dismiss the petition because the IJ’s

9 2020 reasonable fear determination is not subject to judicial

10 review and the 2021 petition is not timely to challenge the

11 1997 removal order or the 2013 reinstatement of that order.

12 See Bhaktibhai-Patel, 32 F.4th at 191; but see Tomas-

13 Ramos v. Garland, 24 F.4th 973, 980 n.3 (4th Cir.

14 2022) (finding that an IJ's negative reasonable fear

15 determination constitutes a “final order”).

16 For the foregoing reasons, the petition for review is

17 DISMISSED. All other pending motions and applications are

18 DENIED as moot and stays VACATED.

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court