Mukantagara v. Mullin

Opinion

Appellate Case: 24-4071 Document: 71 Date Filed: 07/14/2026 Page: 1 FILED

United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 14, 2026 Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

AGNES MUKANTAGARA; EBENEZER SHYAKA,

Plaintiffs - Appellants,

v. No. 24-4071 (D.C. No. 2:20-CV-00897-RJS)

MARKWAYNE MULLIN, Secretary, U.S. (D. Utah) Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; MICHAEL CRABTREE, USCIS Field Office Director, Salt Lake City; ANDREW LAMBRECHT, USCIS District Office Director, Denver; JOSEPH B. EDLOW, Director, ∗

Defendants - Appellees.

_________________________________

ORDER

_________________________________

Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges.

_________________________________

This matter is before the court on the government’s Petition for Rehearing En

Banc and on plaintiffs’ Opposition thereto.

Secretary Markwayne Mullin and Director Joseph Edlow are substituted for

∗

former Secretary Kristi Noem and Senior Official Performing the Duties of Director Kika Scott pursuant to Fed. R. App. P. 43(c)(2).

Appellate Case: 24-4071 Document: 71 Date Filed: 07/14/2026 Page: 2

In light of the Supreme Court’s holding in Mullin v. Doe, No. 25–1083, 2026 WL

1825840 (U.S. June 25, 2026), and our independent duty to examine our own jurisdiction,

Williams v. Akers, 837 F.3d 1075, 1077 n.2 (10th Cir. 2016) (citation omitted), we grant

the government’s request for panel rehearing. See Fed. R. App. P. 40(f). The request for

rehearing en banc is denied as moot.

We VACATE the January 12, 2026 judgment and order supplemental briefing on

the questions set forth below. Both parties should address the first two questions, and the

government should also address the third.

1. Whether Mullin v. Doe’s statement that “[i]f the final agency action is unreviewable, then so too are subsidiary determinations,” 2026 WL 1825840, at *10, calls into question our holding in Mukantagara v. Noem that 8 U.S.C. § 1252(a)(2)(B)(ii) allows for review of USCIS’s subsidiary determinations under 8 U.S.C. § 1157(c)(4)?

2. Whether judicial review of USCIS’s determination that Ms. Mukantagara and Mr.

Shyaka were not refugees at the time of their admission to the United States is available? If so, what is the basis for that review?

3. Throughout this litigation, the government has taken at least two positions on whether the termination decision is reviewable in a petition for review. In the last panel hearing, it argued that Mr. Shyaka and Ms. Mukantagara could “supplement the record to include USCIS’s initial termination [decision] if needed for a [petition for review].” See Mukantagara II Resp. Br. at 42; id. at 40–42. But in its response to Mr. Shyaka’s petition for review, the government argued that USCIS’s termination decision was “not part of the administrative record before the [BIA] and thus may not be considered by the Court on review.” See Shyaka v. Blanche, Case No. 21-9583, Dkt. No. 26, at 2. Which is the government’s position?

The parties’ simultaneous supplemental briefs shall be filed within 21 days of the

date of this order. The briefs may be no longer than 25 pages in a 13- or 14-point font,

and while they need not comply with the content requirements of Fed. R. App. P. 28(a),

3

Appellate Case: 24-4071 Document: 71 Date Filed: 07/14/2026 Page: 3

they should be organized in a manner that is helpful to the court. Hard copies need not be

submitted.

The court intends to set argument in this matter before September 1, 2026;

accordingly, requests for extension of time are strongly discouraged. The Clerk’s Office

will contact the parties to schedule the oral argument.

Entered for the Court

Per Curiam