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Keywords

jurisdictionappealasylumjudicial review
jurisdictionappealmotionjudicial reviewmotion to dismiss

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Ponce-Osorio v. Johnson

Facts

Katherine Ponce-Osorio, a native and citizen of El Salvador, was removed from the U.S. under an expedited order of removal on February 4, 2015. After illegally reentering the U.S. on March 16, 2015, DHS reinstated the removal order. Ponce-Osorio expressed a reasonable fear of persecution, leading the matter to be referred to an immigration judge (IJ) for consideration of her request for withholding of removal. The IJ granted withholding but denied asylum eligibility, prompting Ponce-Osorio to appeal to the BIA, which dismissed her appeal but remanded for further proceedings.

Ponce-Osorio is a native and citizen of El Salvador who was removed from the United States pursuant to a February 4, 2015, expedited order of removal. On March 16, 2015, she illegally reentered the United States. Three days later, DHS reinstated the order of removal, but, determining that she had a reasonable fear of persecution, referred the matter to an immigration judge ('IJ') for full consideration of the request for withholding of removal.

Issue

When does a reinstatement order become final for purposes of judicial review?

The instant motion to dismiss brings to this circuit an issue of first impression: when a reinstatement order becomes final for purposes of judicial review.

Rule

An order of reinstatement is not final for judicial review until the completion of necessary procedures, including any ongoing removal proceedings.

An order of reinstatement is not always final upon completion of the procedures in 8 C.F.R. 241.8(a), (b), and (c).

Analysis

The court analyzed the statutory definition of finality under the INA and concluded that a reinstatement order is not final if further proceedings are required, such as background and security checks mandated by the BIA. The court agreed with the Tenth and Ninth Circuits that a reinstatement order should be considered non-final when it is subject to further agency action, which in this case was the ongoing withholding-of-removal proceedings.

The Tenth Circuit has provided a compelling analysis of why reinstatement orders should be regarded as final only upon completion of reasonable-fear and withholding-of-removal proceedings: The term 'final' in its usual legal sense means 'ending a court action or proceeding leaving nothing further to be determined by the court or to be done except the administrative execution of the court's finding, but not precluding an appeal.'

Conclusion

The Fifth Circuit dismissed Ponce-Osorio's petition for review due to lack of jurisdiction, as the reinstatement order was deemed non-final.

The Fifth Circuit dismissed Ponce-Osorio's petition for review for want of jurisdiction.

Who won?

The government prevailed in the case because the court found it lacked jurisdiction to review the reinstatement order, which was non-final.

The court agreed with both sides, we dismiss the petition for review for want of jurisdiction.

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