Rodriguez Suriel v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: April 21, 2023
• Docket: 19-3422
• Status: Unpublished

Opinion

19-3422 Rodriguez Suriel v. Garland BIA Farber, IJ A037 633 508 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 21st day of April, two thousand twenty- 5 three. 6 7 PRESENT: 8 ROSEMARY S. POOLER, 9 JOSEPH F. BIANCO, 10 MYRNA PÉREZ, 11 Circuit Judges. 12 _____________________________________ 13 14 ESMERALDO ANTONIO RODRIGUEZ 15 SURIEL, AKA ANTONIO RODRIGUEZ, 16 AKA MARCOS ANTONI, AKA GERALDO 17 RODRIGUEZ, 18 Petitioner, 19 20 v. 19-3422 21 NAC 22 MERRICK B. GARLAND, UNITED 23 STATES ATTORNEY GENERAL, 24 Respondent. 25 _____________________________________ 26 27 1 FOR PETITIONER: Paul B. Grotas, Esq., New York, 2 NY. 3

4 FOR RESPONDENT: Brian M. Boynton, Principal Deputy 5 Assistant Attorney General; 6 Jeffery R. Leist, Senior Litigation 7 Counsel; Kathleen Kelly Volkert, 8 Trial Attorney, Office of 9 Immigration Litigation, United 10 States Department of Justice, 11 Washington, DC.

12 UPON DUE CONSIDERATION of this petition for review of a

13 Board of Immigration Appeals (“BIA”) decision, it is hereby

14 ORDERED, ADJUDGED, AND DECREED that the petition for review

15 is DISMISSED for lack of jurisdiction.

16 Petitioner Esmeraldo Antonio Rodriguez Suriel, a native

17 and citizen of the Dominican Republic, seeks review of a

18 September 20, 2019 decision of the BIA affirming a February

19 22, 2019 decision of an Immigration Judge (“IJ”), which denied

20 his motion to reopen his withholding-only proceedings to seek

21 withholding of removal and protection under the Convention

22 Against Torture (“CAT”). In re Rodriguez Suriel, No. A037

23 633 508 (B.I.A. Sept. 20, 2019), aff’g No. A037 633 508

24 (Immigr. Ct. N.Y.C. Feb. 22, 2019).

25 Rodriguez Suriel was ordered removed in 2003, and that

26 2003 order was reinstated after his unlawful reentries in

2 1 2009 and 2017. Following the 2017 entry he was referred to

2 an IJ for withholding-only proceedings. He was removed again

3 after the IJ and the BIA denied withholding of removal and

4 CAT relief. He again reentered and now challenges the

5 agency’s denial of his motion to reopen his withholding-only

6 proceedings.

7 Although the parties do not address jurisdiction, “we

8 have an independent obligation” to determine jurisdiction.

9 Zaluski v. INS, 37 F.3d 72, 73 (2d Cir. 1994). Our

10 jurisdiction in this context is limited to “final order[s] of

11 removal.” 8 U.S.C. § 1252(a)(1). A final order of removal

12 “conclud[es] that the alien is deportable or order[s]

13 deportation.” 8 U.S.C. § 1101(a)(47)(A); Bhaktibhai-Patel

14 v. Garland, 32 F.4th 180, 189 (2d Cir. 2022) (removal orders

15 “affect the validity of the conclusion that an alien may or

16 must be removed from the United States” (internal quotation

17 marks and citation omitted)). Since the parties briefed this

18 case, we have held that a decision in withholding-only

19 proceedings is not such an order because it “concern[s] an

20 alien’s eligibility for statutory withholding and CAT

21 relief,” it “do[es] not determine whether the alien is

3 1 deportable or order deportation,” and it does not “affect the

2 validity of any determination regarding an alien’s

3 deportability or deportation . . . . Rather, if an immigration

4 judge grants an application for withholding of removal, he

5 prohibits DHS from removing the alien to a particular country,

6 not from the United States.” Bhaktibhai-Patel, 32 F.4th at

7 190–91 (alterations adopted) (internal quotation marks and

8 citations omitted). Because Rodriguez Suriel challenges the

9 denial of a request to reopen withholding-only proceedings,

10 we lack jurisdiction as the denial of reopening relates only

11 to withholding of removal and CAT relief and does not

12 implicate removability. See id. The petition is otherwise

13 untimely to challenge the 2003 removal order or the

14 reinstatement of the order in 2017. See id. at 191–93.

15 For the foregoing reasons, the petition for review is

16 DISMISSED for lack of jurisdiction. All pending motions and

17 applications are DENIED and stays VACATED.

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