Jorge Alvarado-Perez v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 21, 2024
• Docket: 22-1050
• Status: Unpublished

Opinion

USCA4 Appeal: 22-1050 Doc: 54 Filed: 05/21/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1050

JORGE MARCELINO ALVARADO-PEREZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of an Immigration Judge.

Submitted: May 10, 2024 Decided: May 21, 2024

Before RUSHING and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Petition dismissed by unpublished per curiam opinion.

ON BRIEF: Alina Marie Kilpatrick, LEGAL AID JUSTICE CENTER, Richmond, Virginia, for Petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Mary Jane Candaux, Assistant Director, Sabatino F. Leo, Assistant Director, Remi O. Da Rocha-Afodu, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

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PER CURIAM:

Jorge Alvarado-Perez, a native and citizen of Guatemala, illegally reentered the

United States in 2021. On March 11, 2021, the Department of Homeland Security

reinstated the removal order originally entered against him in 2011. Because Alvarado-

Perez expressed a fear of returning to Guatemala, an asylum officer conducted a screening

interview to determine whether he reasonably feared persecution or torture in his home

country. The asylum officer concluded that Alvarado-Perez failed to establish a reasonable

fear of such harm, and an immigration judge concurred in that determination. On January

11, 2022, Alvarado-Perez petitioned this Court for review of the negative reasonable fear

finding. We placed the case in abeyance for Martinez v. Garland, 86 F.4th 561 (4th Cir.

2023), and received supplemental briefing from the parties after that decision.

Under our decision in Martinez, we lack jurisdiction to review Alvarado-Perez’s

petition because it was not filed within 30 days of a final order of removal. This Court has

jurisdiction to review a “final order of removal,” 8 U.S.C. § 1252(a)(1), but a petition for

such review “must be filed not later than 30 days after the date of the final order of

removal,” 8 U.S.C. § 1252(b)(1). That deadline is jurisdictional and not subject to

equitable tolling. Salgado v. Garland, 69 F.4th 179, 181 (4th Cir. 2023). Alvarado-Perez

filed his petition for review more than ten years after his original order of removal and ten

months after reinstatement of that order. Measured against either benchmark, see Martinez,

86 F.4th at 568, Alvarado-Perez’s petition was untimely, depriving us of jurisdiction to

review it.

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Alvarado-Perez contends that his petition was timely because he filed it within 30

days of the immigration judge’s order sustaining the negative reasonable fear

determination. But as we held in Martinez, that decision is not a “final order of removal”

reviewable under 8 U.S.C. § 1252(a)(1), nor does it affect the finality of the March 2021

decision reinstating his prior removal order. Martinez, 86 F.4th at 567, 570. Alvarado-

Perez presents no legitimate reason why the holding of Martinez would not apply to his

case.

Because Alvarado-Perez did not petition for review within 30 days of a qualifying

final order of removal, we must dismiss his petition for lack of jurisdiction. We also deny

his motion to hold this case in abeyance for the possibility that the petitioner in Martinez

may file a petition for a writ of certiorari.

PETITION DISMISSED