22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi
1 United States Court of Appeals 2 for the Second Circuit 3 4 August Term, 2023 5 6 Argued: April 18, 2024 7 Decided: July 8, 2025 8 __________________ 9 10 Docket No. 22-6024 11 12 VILMA ESPERANZA CASTEJON-PAZ, 13 14 Petitioner, 15 16 v. 17 18 PAMELA BONDI, UNITED STATES ATTORNEY GENERAL 19 20 Respondent. * 21 _____________________________________ 22 23 Docket No. 22-6349 24 25 GERMAN ALEJANDRO CERRATO-BARAHONA, 26 27 Petitioner, 28 29 v. 30 31 PAMELA BONDI, UNITED STATES ATTORNEY GENERAL 32 33 Respondent. **
* The Clerk of Court is respectfully directed to amend the official caption as set forth above. ** The Clerk of Court is respectfully directed to amend the official caption as set forth above. 1 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 _________________ 2 3 On Petition for Review from Orders 4 of the Department of Homeland Security 5 _________________
6 Before: CALABRESI, PARKER, and PARK, Circuit Judges.
7 8 8 U.S.C. § 1252(b)(1) states that, in immigration proceedings, “[t]he petition 9 for review must be filed not later than thirty days after the date of the final order 10 of removal.” Our court held in Bhaktibhai-Patel v. Garland that this rule was 11 jurisdictional and stripped us of the ability to review untimely petitions. 32 F.4th 12 180, 188 (2d Cir. 2022). Recently, in Riley v. Bondi, the Supreme Court disagreed 13 and held that § 1252(b)(1) is not a jurisdictional rule, but a claim-processing 14 requirement that may be waived by the parties. No. 23-1270, 2025 WL 1758502, at 15 *10 (U.S. June 26, 2025). 16 Petitioners Castejon-Paz and Cerrato-Barahona filed for review well over 17 thirty days after their final removal orders. Although this would have divested 18 our court of jurisdiction under Bhaktibhai-Patel, we hold that Bhaktibhai-Patel’s 19 jurisdictional holding has been abrogated by Riley. Because the thirty-day filing 20 deadline is nonjurisdictional and the Government has waived application of it to 21 the petitions, in the cases before us, § 1252(b)(1) poses no bar to our court hearing 22 either petition. 23 These petitions were referred (along with a motion to dismiss for lack of 24 jurisdiction in Cerrato-Barahona’s case) to our panel to decide the jurisdictional 25 question. We today hold that our court has jurisdiction, DENY the motion to 26 dismiss in Cerrato-Barahona’s case and respectfully order the Clerk of Court to 27 order briefing on the merits and to assign both petitions to appropriate panels in 28 the ordinary course. 29 _____________________________________ 30 31 JON E. JESSEN, Law Offices of Jon E. Jessen, LLC, 32 Stamford, CT, for Petitioner Castejon-Paz 33 34 XAVIER A. PALACIOS, Palacios Law Group, Mineola, NY, 35 for Petitioner Cerrato-Barahona
2 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 2 DAWN S. CONRAD (Erica B. Miles, Assistant Director, on 3 the brief), Senior Litigation Counsel, Office of 4 Immigration Litigation, for Brian M. Boynton, Principal 5 Deputy Assistant Attorney General, Civil Division, U.S. 6 Department of Justice, Washington, DC, for Respondent 7 8 TRINA REALMUTO (Kristin Macleod-Ball, on the brief), 9 National Immigration Litigation Alliance, Brookline, 10 MA, for amici curiae National Immigration Litigation 11 Alliance, Bronx Defenders, Brooklyn Defender Services, Legal 12 Aid Society, and Make the Road New York 13 14 THOMAS SCOTT-RAILTON (John Harland Giammatteo, 15 State University of New York at Buffalo School of Law, 16 Buffalo, NY, on the brief), Gupta Wessler LLP, 17 Washington, DC, for amici curiae Richard Frankel, Amanda 18 Frost, John Harland Giammatteo, David Hausman, David C. 19 Vladeck, and Tiffany Yang 20 21 R. TRENT MCCOTTER (Gene P. Hamilton, America First 22 Legal Foundation, Washington, DC, on the brief), Boyden 23 Gray PLLC, Washington, DC, for amicus curiae America 24 First Legal Foundation 25 _____________________________________ 26 27 CALABRESI, Circuit Judge:
28 8 U.S.C. § 1252(b)(1) states that, in immigration proceedings, “[t]he petition
29 for review must be filed not later than thirty days after the date of the final order
30 of removal.” In these tandem appeals, two petitioners sought judicial review of
31 their immigration proceedings well beyond thirty days after their removal orders.
3 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 This raised—in both cases—a threshold question of whether our court has
2 jurisdiction to hear these petitions under § 1252(b)(1). We hold today that we do.
3 Although noncitizens subject to a reinstated removal order are not eligible
4 “for any relief” under the Immigration Nationality Act, 8 U.S.C. § 1231(a)(5), the
5 United States adheres to two treaties that prohibit the removal of a noncitizen to a
6 country when the noncitizen faces a threat of persecution or torture in that
7 country. 1 Proceedings pursuant to these treaties do not contest the Government’s
8 right to remove the individual, but instead determine whether removal to a
9 specific country should be withheld. Accordingly, they are known as
10 “withholding-only proceedings.” Johnson v. Guzman Chavez, 594 U.S. 523, 530
11 (2021).
12 Petitioner Vilma Esperanza Castejon-Paz, a citizen of Honduras, was subject
13 to a 2012 removal order that was reinstated in 2014. She initiated withholding-
14 only proceedings, asserting that she feared persecution in Honduras at the hands
1Pursuant to these treaties, the United States allows for withholding of removal either when a person’s “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion,” United Nations Convention Relating to the Status of Refugees, July 28, 1951, art. 33(1), 19 U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176; see also 8 U.S.C. § 1231(b)(3)(A), or “there are substantial grounds for believing that he would be in danger of being subjected to torture” in that country, United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, art. 3, 1465 U.N.T.S. 85; see also 8 CFR §§ 208.16–208.17, 1208.16–1208.17. 4 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 of the MS-13 gang and of her abusive ex-husband. In a December 2021 order, an
2 immigration judge agreed with the asylum officer’s determination that Castejon-
3 Paz had failed to tie her fear of persecution to a statutorily protected ground.
4 Castejon-Paz petitioned this court for review in January 12, 2022.
5 Petitioner German Alejandro Cerrato-Barahona, a citizen of Honduras, was
6 subject to an October 2010 removal order that was reinstated in June 2019. His
7 July 2022 petition seeks review of a June 2022 order in his withholding-only
8 proceedings, in which the immigration judge, agreeing with an asylum officer’s
9 determination, held that Cerrato-Barahona had failed to demonstrate credibly any
10 reasonable possibility of persecution or torture.
11 Under 8 U.S.C.
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22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi
1 United States Court of Appeals 2 for the Second Circuit 3 4 August Term, 2023 5 6 Argued: April 18, 2024 7 Decided: July 8, 2025 8 __________________ 9 10 Docket No. 22-6024 11 12 VILMA ESPERANZA CASTEJON-PAZ, 13 14 Petitioner, 15 16 v. 17 18 PAMELA BONDI, UNITED STATES ATTORNEY GENERAL 19 20 Respondent. * 21 _____________________________________ 22 23 Docket No. 22-6349 24 25 GERMAN ALEJANDRO CERRATO-BARAHONA, 26 27 Petitioner, 28 29 v. 30 31 PAMELA BONDI, UNITED STATES ATTORNEY GENERAL 32 33 Respondent. **
* The Clerk of Court is respectfully directed to amend the official caption as set forth above. ** The Clerk of Court is respectfully directed to amend the official caption as set forth above. 1 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 _________________ 2 3 On Petition for Review from Orders 4 of the Department of Homeland Security 5 _________________
6 Before: CALABRESI, PARKER, and PARK, Circuit Judges.
7 8 8 U.S.C. § 1252(b)(1) states that, in immigration proceedings, “[t]he petition 9 for review must be filed not later than thirty days after the date of the final order 10 of removal.” Our court held in Bhaktibhai-Patel v. Garland that this rule was 11 jurisdictional and stripped us of the ability to review untimely petitions. 32 F.4th 12 180, 188 (2d Cir. 2022). Recently, in Riley v. Bondi, the Supreme Court disagreed 13 and held that § 1252(b)(1) is not a jurisdictional rule, but a claim-processing 14 requirement that may be waived by the parties. No. 23-1270, 2025 WL 1758502, at 15 *10 (U.S. June 26, 2025). 16 Petitioners Castejon-Paz and Cerrato-Barahona filed for review well over 17 thirty days after their final removal orders. Although this would have divested 18 our court of jurisdiction under Bhaktibhai-Patel, we hold that Bhaktibhai-Patel’s 19 jurisdictional holding has been abrogated by Riley. Because the thirty-day filing 20 deadline is nonjurisdictional and the Government has waived application of it to 21 the petitions, in the cases before us, § 1252(b)(1) poses no bar to our court hearing 22 either petition. 23 These petitions were referred (along with a motion to dismiss for lack of 24 jurisdiction in Cerrato-Barahona’s case) to our panel to decide the jurisdictional 25 question. We today hold that our court has jurisdiction, DENY the motion to 26 dismiss in Cerrato-Barahona’s case and respectfully order the Clerk of Court to 27 order briefing on the merits and to assign both petitions to appropriate panels in 28 the ordinary course. 29 _____________________________________ 30 31 JON E. JESSEN, Law Offices of Jon E. Jessen, LLC, 32 Stamford, CT, for Petitioner Castejon-Paz 33 34 XAVIER A. PALACIOS, Palacios Law Group, Mineola, NY, 35 for Petitioner Cerrato-Barahona
2 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 2 DAWN S. CONRAD (Erica B. Miles, Assistant Director, on 3 the brief), Senior Litigation Counsel, Office of 4 Immigration Litigation, for Brian M. Boynton, Principal 5 Deputy Assistant Attorney General, Civil Division, U.S. 6 Department of Justice, Washington, DC, for Respondent 7 8 TRINA REALMUTO (Kristin Macleod-Ball, on the brief), 9 National Immigration Litigation Alliance, Brookline, 10 MA, for amici curiae National Immigration Litigation 11 Alliance, Bronx Defenders, Brooklyn Defender Services, Legal 12 Aid Society, and Make the Road New York 13 14 THOMAS SCOTT-RAILTON (John Harland Giammatteo, 15 State University of New York at Buffalo School of Law, 16 Buffalo, NY, on the brief), Gupta Wessler LLP, 17 Washington, DC, for amici curiae Richard Frankel, Amanda 18 Frost, John Harland Giammatteo, David Hausman, David C. 19 Vladeck, and Tiffany Yang 20 21 R. TRENT MCCOTTER (Gene P. Hamilton, America First 22 Legal Foundation, Washington, DC, on the brief), Boyden 23 Gray PLLC, Washington, DC, for amicus curiae America 24 First Legal Foundation 25 _____________________________________ 26 27 CALABRESI, Circuit Judge:
28 8 U.S.C. § 1252(b)(1) states that, in immigration proceedings, “[t]he petition
29 for review must be filed not later than thirty days after the date of the final order
30 of removal.” In these tandem appeals, two petitioners sought judicial review of
31 their immigration proceedings well beyond thirty days after their removal orders.
3 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 This raised—in both cases—a threshold question of whether our court has
2 jurisdiction to hear these petitions under § 1252(b)(1). We hold today that we do.
3 Although noncitizens subject to a reinstated removal order are not eligible
4 “for any relief” under the Immigration Nationality Act, 8 U.S.C. § 1231(a)(5), the
5 United States adheres to two treaties that prohibit the removal of a noncitizen to a
6 country when the noncitizen faces a threat of persecution or torture in that
7 country. 1 Proceedings pursuant to these treaties do not contest the Government’s
8 right to remove the individual, but instead determine whether removal to a
9 specific country should be withheld. Accordingly, they are known as
10 “withholding-only proceedings.” Johnson v. Guzman Chavez, 594 U.S. 523, 530
11 (2021).
12 Petitioner Vilma Esperanza Castejon-Paz, a citizen of Honduras, was subject
13 to a 2012 removal order that was reinstated in 2014. She initiated withholding-
14 only proceedings, asserting that she feared persecution in Honduras at the hands
1Pursuant to these treaties, the United States allows for withholding of removal either when a person’s “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion,” United Nations Convention Relating to the Status of Refugees, July 28, 1951, art. 33(1), 19 U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176; see also 8 U.S.C. § 1231(b)(3)(A), or “there are substantial grounds for believing that he would be in danger of being subjected to torture” in that country, United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, art. 3, 1465 U.N.T.S. 85; see also 8 CFR §§ 208.16–208.17, 1208.16–1208.17. 4 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 of the MS-13 gang and of her abusive ex-husband. In a December 2021 order, an
2 immigration judge agreed with the asylum officer’s determination that Castejon-
3 Paz had failed to tie her fear of persecution to a statutorily protected ground.
4 Castejon-Paz petitioned this court for review in January 12, 2022.
5 Petitioner German Alejandro Cerrato-Barahona, a citizen of Honduras, was
6 subject to an October 2010 removal order that was reinstated in June 2019. His
7 July 2022 petition seeks review of a June 2022 order in his withholding-only
8 proceedings, in which the immigration judge, agreeing with an asylum officer’s
9 determination, held that Cerrato-Barahona had failed to demonstrate credibly any
10 reasonable possibility of persecution or torture.
11 Under 8 U.S.C. § 1252(b)(1), “[t]he petition for review must be filed not later
12 than thirty days after the date of the final order of removal.” In Bhaktibhai-Patel v.
13 Garland, we held (1) that adverse determinations in withholding-only proceedings
14 are not “final order[s] of removal” under § 1252(b)(1); and (2) also that the thirty-
15 day filing requirement was jurisdictional, and when not satisfied, deprived us of
16 the power to review a petition. 2 32 F.4th 180, 188 (2d Cir. 2022). Operating in
2To be clear, Bhaktibhai-Patel was not written on a blank slate. Instead, the case applied previous cases interpreting § 1252(b)(1). Bhaktibhai-Patel, 32 F.4th at 188 (citing Ruiz-Martinez v. Mukasey, 516 F.3d 102, 118 (2d Cir. 2008) (“§ 1252(b)(1) is indeed jurisdictional in nature.”)). We refer to Bhaktibhai-Patel throughout this opinion, however, for two reasons: (1) it is the most recent precedential affirmation of our holding that § 1252(b)(1) is jurisdictional and (2) it was the first instance in which we held that an 5 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 tandem, Bhaktibhai-Patel’s two holdings prevented courts from reviewing petitions
2 where the petitioner did not appeal within thirty days of the final order of removal.
3 Because Petitioners filed their petitions more than thirty days after their final
4 orders of removal, Bhaktibhai-Patel required that we dismiss these appeals for lack
5 of jurisdiction. Bhaktibhai-Patel’s jurisdictional holding, however, was abrogated
6 by the Supreme Court in Riley v. Bondi, which held that § 1252(b)(1)’s thirty-day
7 filing deadline is not jurisdictional. Riley v. Bondi, No. 23-1270, 2025 WL 1758502,
8 at *10 (U.S. June 26, 2025). Accordingly, Bhaktibhai-Patel’s holding that
9 § 1252(b)(1)’s thirty-day filing requirement is jurisdictional is no longer the law of
10 our Circuit.
11 In Riley, the Supreme Court expressly held that § 1252(b)(1)’s thirty-day
12 filing deadline is a “claim-processing rule,” Riley, 2025 WL 1758502 at *8, that can
13 be subject to waiver or forfeiture, see Wilkins v. United States, 598 U.S. 152, 158
14 (2023). Here, the Government waived application of the thirty-day filing rule as
15 to both petitions. As a result, § 1252(b)(1) poses no bar to our court resolving these
16 petitions on their merits.
immigration judge’s final disposition of withholding-only proceedings did not constitute a final order as described in § 1252(b)(1). 6 22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 CONCLUSION
2 Riley held that § 1252(b)(1) is a claim-processing rule, and accordingly
3 Bhaktibhai-Patel’s jurisdictional holding is no longer the law of our Circuit. We
4 therefore DENY Respondent’s motion to dismiss Cerrato-Barahona’s petition for
5 lack of jurisdiction. And since the Government has waived the thirty-day filing
6 deadline, § 1252(b)(1) does not bar our court from hearing these petitions. Having
7 settled the jurisdiction question posed to us, in the interest of judicial economy, we
8 respectfully direct the Clerk of Court to order briefing on the merits in both these
9 cases and to assign them to appropriate panels in the ordinary course.