[00:00:01] Speaker 00:
Good morning. May it please the court. My name is Glenda Aldana of the Northwest Immigrant Rights Project. On behalf of Petitioner Pedro Aldana-Diaz, I'd like to reserve three minutes for rebuttal.

[00:00:11] Speaker 04:
I'm sorry, what's your name again?

[00:00:13] Speaker 00:
Glenda Aldana, no relation to the petitioner.

[00:00:16] Speaker 04:
Because it has Glenda Madrid here.

[00:00:18] Speaker 00:
Aldana Madrid.

[00:00:19] Speaker 04:
Okay, thank you. Sorry, I was just...

[00:00:21] Speaker 00:
No, no problem. It's the first last name that controls typically. Yes, I'd like to reserve three minutes for rebuttal.

[00:00:28] Speaker 00:
Mr. Aldana fled his native Honduras to seek asylum. Because he was previously removed under an order of removal, he was placed in reinstatement proceedings, during which his previous removal order was reinstated, and he was instructed by the government to wait for the government to set him up for a reasonable fear interview in order to ascertain his claim for protection from removal. However, for almost five years, Mr. Aldana has been waiting for the government to hear his claim, to no avail. Diligently pursuing his rights, he secured counsel to represent him in those RFI proceedings, and in order to preserve a future need for judicial review should it become necessary.

[00:01:07] Speaker 00:
He filed this petition within 30 days of Riley B. Bondi, where the Supreme Court made clear that individuals similarly situated needed to file petitions for review within 30 days of the reinstatement order, not as previously understood to be the law in this circuit and many others, which was 30 days from the conclusion of the agency's review of fear-based claims. Respondent argues that this court should not entertain Mr. Aldana's petition because it lacks jurisdiction and because it was untimely filed and may not be equitably told. Respondent is wrong on both accounts, and I'd like to briefly address Rule 26B2 before focusing the remainder of my remarks on jurisdiction and Navarrete if that's okay with the court.

[00:01:47] Speaker 00:
So quickly with respect to Federal Rule of Appellate Procedure 26 , which is respondent's primary argument to claim that the Irwin presumption has been rebutted with respect to the filing deadline at 1252 .

[00:02:00] Speaker 00:
The respondent's argument is wrong for two reasons. First, because there is no tension between Irwin and Rule 26 , as it reflects separation of powers principles. The types of filings mentioned in B-2 implicate a court of appeals ability to hear certain cases in their entirety. Yet it is Congress that has the authority to set the lower federal court's jurisdiction. And so the rule makes clear that courts may not do that unless specifically authorized by law. That is, unless Congress instructs them to.

[00:02:31] Speaker 00:
And the way Congress does this is by drafting statutory language that is consistent with equitable tolling and does not rebut the Irwin presumption.

[00:02:43] Speaker 00:
Recognizing the Irwin presumption here does not require reading anything into the statute, as this court has recognized in Smith v. Davis, where it noted that where Congress has not acted to preclude equitable tolling, it intended for it to apply and to be employed consistent with standard equitable concepts and governing precedent. Second, even if Rule B-2 were to be considered to be in conflict with Erwin, it simply is insufficient to rebut that presumption because Supreme Court case law has said time and again that the analysis concerns congressional intent with regard to a specific statute of limitations, and that analysis requires looking at that specific statute, its text, its context, and its structure.

[00:03:24] Speaker 00:
Rule 26 was not written by Congress, and it is not statute specific. It is a general prohibition on extending deadlines for certain types of notices and petitions not the statute of limitations, that 1252 be one in particular. And as was stated earlier in the earlier argument, if Rule 26B2 so plainly applied, the Supreme Court would not have needed to remand the question of whether equitable tolling was permitted in Jairovi Department of Defense, yet it did so. And this court in Alonso Juarez, if Rule 26B2 so clearly applied in this context, This court would not have left that question open at footnote three.

[00:04:02] Speaker 01:
So let me see if I'm tracking your argument, counsel. I take it then that's the distinction you would make for nutraceutical. The nutraceutical is about court rules, not a statute. And so if we're applying the Irwin presumption – And we're directed by the Supreme Court to look beyond even the statute in question, but we should only look to other statutory provisions, not to court rules, that that's something separate and apart from the Irwin analysis. Is that the argument you're making?

[00:04:33] Speaker 00:
Yes, Your Honor. And in fact, HARO was decided after Nutraceutical, which is from 2019, and HARO could have easily said, this is not amenable to equitable tolling, see nutraceutical, see federal rule 26B2, but the court did not do that. And in fact, nutraceutical... Which case are you referring to? HARO v. Department of Defense, in which case the court found that the 60-day statute of limitations for filing a petition for review... of a Merit System Protection Board decision was not jurisdictional and remanded the equitable tolling question. And notably there, it noted that rebutting that presumption would be a high bar.

[00:05:07] Speaker 00:
And one more point about nutraceutical, Your Honor. The fact that that case dealt with federal rules and not a statute meant that the Irwin presumption did not factor into the court's analysis at all. And in fact, the question that the court asked was not whether equitable tolling was inconsistent with the statute, but whether the text of the rule left room for such flexibility. So it was looking at it exactly backwards. It was looking at whether equitable tolling could be read in, not whether equitable tolling should be read out, which is what the Irwin presumption and the analysis requires us to look at.

[00:05:42] Speaker 01:
What about counsel from the prior arguments point that Congress was aware of Rule 26B2 in the context of drafting this provision?

[00:05:56] Speaker 01:
and might have incorporated that thinking, you know, we don't need to say anything more because there's already a court rule that applies a more stringent requirement.

[00:06:04] Speaker 00:
Your Honor, there's simply no support for that. The rule was not written by Congress. And the case that the government relies upon, O'Havi Department of Defense from the Federal Circuit, 20 years old, it at most spoke about Congress expressing a general intent. But the Supreme Court has told us time and again that the analysis is statute-specific. Just last month in Enbridge, the court said, the presumption is rebutted where tolling would be inconsistent with the text of the relevant statute. And the Sixth Circuit and Oxlack-Perez and the DC Circuit and Nelson v. SCC both found that the analysis, the logic of nutraceutical did not extend to statutory limitations periods because, again, nutraceutical was about federal court rules.

[00:06:45] Speaker 00:
And so there is no tension, really, between Rule 26b-2 and recognizing the Irwin presumption. But even if there were, the general intent to not allow for tolling of certain notices and petitions is insufficient to meet the high bar that is required to meet and to demonstrate that the Irwin presumption has been rebutted. As the Sixth Circuit found in Oxlack-Bettis, in Nutraceutical, it was much easier to find that equitable tolling did not apply because there was no presumption to begin with.

[00:07:16] Speaker 00:
And that's why general rules were sufficient to demonstrate that equitable tolling have no place in extending the rules there. And so if I may, I would like to move on to jurisdiction unless the court has any questions about tolling.

[00:07:31] Speaker 00:
So respondent argues, and a panel of the circuit agreed in Navarrete Vivandi, that this court has no jurisdiction to review a petition for review where a non-citizen is not raising a challenge to the underlying removal order. And I recognize there's been a call to rehear Navarrete on bank. And what we would first ask is that you consolidate our case with Navarrete so that it may be heard on bank alongside it. Because this case presents arguments that bear directly on the ultimate question in Navarrete that were not argued and presented to the court there.

[00:08:02] Speaker 01:
And namely, the argument is – I'm not sure you want to do that.

[00:08:08] Speaker 01:
I would think you would want to argue as to why your case is distinct from Navarrete as opposed to wanting to consolidate it because they're – as I see it, these are different situations. Your client is in the same camp as the last group. He is challenging the reinstatement order. on what you present are colorable grounds.

[00:08:30] Speaker 01:
And so that seems to me to be different from what happened with the Navarrete panel.

[00:08:36] Speaker 01:
So I don't know. I mean, I'm not quite sure why we would want to consolidate any type of en banc proceedings with this case.

[00:08:44] Speaker 00:
Sure, Your Honor. And point well taken. That was actually my secondary point, which is we actually do not believe Navarrete controls here.

[00:08:50] Speaker 01:
Why don't you speak to that?

[00:08:51] Speaker 00:
And that is because Mr. Aldana raises a claim that under Monsalvo Velasquez, which the Supreme Court decided last year.

[00:09:01] Speaker 00:
He is actually, individuals in reasonable fear proceedings challenging the outcome of those proceedings are in fact challenging a term of the removal order. And under Monsalvo Velasquez, courts pretty plainly have jurisdiction over those claims. And what Monsalvo Velasquez did last year was recognize or clarify, I suppose, a different way of conceptualizing jurisdiction over petitions for review that bear here. Because traditionally, in tracking this court's language with respect to jurisdiction over RFI proceedings, This court has tracked the language of 1252A1 and B9.

[00:09:38] Speaker 00:
1252A1 provides for judicial review of a final order of removal. And the case law of the circuit is clear that reinstatement orders are final orders of removal. And 1252B9 provides that PFRs are the sole vehicles for judicial review of all questions of law and fact. arising from any action taken or proceeding brought to remove a non-citizen from the United States. And when this court has spoken of jurisdiction, it has tracked that language. In Ayala v. Sessions, this court said, we clearly have jurisdiction over timely petitions for review of reasonable fear determinations that arise out of reinstatement of ordinary removal orders.

[00:10:16] Speaker 00:
And...

[00:10:17] Speaker 00:
Monsalvo recognized the fact that A1 and B9 are read together when it said that 1252 authorizes courts to review final orders of removal and address questions of law arising from them. And then it quoted directly to A1. It cited directly A1 and B9. And then it said, and pretty plainly, that language permits a court to review all terms in a final order of removal without requiring a challenge to removability. Here, the reinstatement order Page 1 of the administrative record, by its plain text, decrees that Mr. Aldana is subject to removal in accordance with Section 241C5 of the INA and HCFR 241.8.

[00:11:00] Speaker 00:
And that regulation provides for the reasonable fear process to ascertain a non-citizen's fear of persecution and torture. at subsection E and at subsection F, notes that the execution of the reinstated order of removal shall be administered in accordance with this part. So just as the Supreme Court had a final order specifying that the government could remove an individual, so does this court have a final order specifying that the government may remove Mr. Aldana in accordance with certain procedures and a petition asking the court to settle a dispute over what that order means.

[00:11:36] Speaker 00:
And so for that reason, we believe that Navarrete does not control here and Mr. Aldana is in fact raising a colorable claim challenging the final order of removal.

[00:11:46] Speaker 01:
And just to be clear, you're not saying that a challenge to the reinstatement order would be frivolous or without any merit?

[00:11:54] Speaker 00:
No, Your Honor. The challenge is to the RFI process that is part of that order of removal, that is a term of that order of removal and that is provided for in that order of removal. And so, no, it would not be frivolous in any way. Unfortunately, at this point, we're left to speculate as to what the challenge might be because the government has not... allowed Mr. Aldana the opportunity to present his claim, but he is acting diligently to pursue, to preserve that right to judicial review because he is bringing literal life and death claims to prevent his removal.

[00:12:28] Speaker 00:
And that is, I guess, Your Honor, with something else that I would like to emphasize is we believe that Navarrete was wrongly decided. We don't believe Navarrete controls here. But what we would like to underscore is that the government's position in this case would run contrary to decades of practice, not just by this court, but by the Supreme Court. In Santo Zacaria, the Supreme Court exercised jurisdiction over claims that arose out of the reinstatement process, but that did not challenge the reinstatement order.

[00:12:58] Speaker 00:
The non-citizen there only challenged the withholding only claims. In Ayala Visayas, this court exercised jurisdiction in that same posture. In Uc Encarnacion Vivandi, post Riley, this court exercised jurisdiction in the similar context And it's very worrisome because the government's position extends beyond the reinstatement process. It goes and raises the question as to whether individuals in regular 240 removal proceedings are actually able to file petitions for review if they concede removability, as many of them do.

[00:13:34] Speaker 00:
and only challenge the agency's determinations as to withholding of removal or CAT. And that is, again, contrary to the practice in this court.

[00:13:42] Speaker 00:
And this court and the Supreme Court have told us that in order to do this, Congress must speak clearly, and there must be clear and convincing evidence that it is Congress's intent to foreclose judicial review. and simply there is no indication from Congress that that is the case. And I see that it's unclear whether my time for rebuttal is included in here.

[00:14:00] Speaker 04:
No, it's not. I mean, yes, it is. So you have one minute and a half left.

[00:14:03] Speaker 00:
Okay, then I would like to reserve the rest of my time for rebuttal. Thank you.

[00:14:19] Speaker 02:
Good morning. May it please the court, Robert Tennyson for the government.

[00:14:22] Speaker 04:
Good morning.

[00:14:24] Speaker 02:
This court doesn't need to address any of these issues.

[00:14:29] Speaker 02:
Really, this court needs to just look at whether it's colorable or not, whether tolling applies or not. Really, the petitioner hasn't made a challenge to the reinstatement at this point. There is none.

[00:14:42] Speaker 02:
And any prospective challenge to withholding is down the road. If this were just... an everyday case in which a petitioner filed a PFR and then filed a brief in which they say, you know, a PFR from say asylum withholding and cap and filed a brief that said, we don't challenge any of those things. We would summarily, this court would summarily dismiss it. We would file a motion for summary dismissal and this court would grant it because they forfeited or waived any challenge to any substantive issue in the underlying order or in the order that's before the court.

[00:15:17] Speaker 02:
Here, the only order that's before the court is a reinstatement order. And at the very least, putting aside whether or not you need something colorful, they need to offer a challenge. They've waived and forfeited a challenge to that order.

[00:15:29] Speaker 04:
Well, let's go through that because it looks like a petitioner here in the petition states that he petitions for review by this court of the removal order entered by U.S. Immigration and Customs Enforcement, a component agency of the Department of Homeland Security pursuant to 8 U.S.C. Section 1231A5.

[00:15:51] Speaker 04:
And then he goes on to say that the order was issued on September 14, 2021, and encloses a copy of the DHS reinstatement order pursuant to 1252C's requirement that a petition for review and order a removal shall attach a copy of this order. So it seems like he's petitioning for review of the DHS reinstatement order, not just withholding a removal or CAT order, which also doesn't really exist because his reasonable fear proceedings haven't commenced, correct?

[00:16:31] Speaker 02:
Insofar as I'm aware, they've not commenced.

[00:16:33] Speaker 04:
All right. So I'm trying to figure out, under our precedent— A reinstatement order seems to be a final order of removal. I think the case of Vega-Arguiano-Barr says that. We have repeatedly held that the phrase final order of removal in 1252A1 covers both a final order of removal and a final restatement order.

[00:16:59] Speaker 04:
I don't know that Riley disturbs that holding. Riley has clarified that an order of removal must have the same characteristics as an order of deportation, which is defined as, quote, an order concluding that the non-citizen is deportable or ordering deportation.

[00:17:26] Speaker 04:
So I'm trying to figure out...

[00:17:29] Speaker 04:
The DHS order says in accordance with Section 241A5 of the Act, Immigration Nationality Act, you are removable as a non-citizen who has illegally re-entered the United States after having been previously removed or departed voluntarily while under an order of exclusion, deportation, or removal and are therefore subject to removal by reinstatement of the prior order.

[00:17:59] Speaker 04:
So all that seems to fall squarely within the definition of an order, quote, an order concluding that the non-citizen is deportable or ordering deportation that rightly states clearly and rightly. So, I want to understand your view. I was trying to understand it from your friend on the previous case in your position, because it seems like the petitioner here checked that he did not wish to make a statement contesting his determination.

[00:18:40] Speaker 04:
Rendering the order final. So tell me, give me your best response.

[00:18:45] Speaker 02:
OK, so I think there are three, maybe four questions in there that I that to respond to. The first thing has to do with the petitioner complied with Rule 15 under this court and identify and did for purposes of Rule 15 follow the requirements. He attached a copy of the rules. He attached the copy of the reinstatement order. And he mentioned that he was challenging that. I don't think we're challenging that part of this. What we are saying is that in the opening brief and in the reply brief, the petitioner has effectively forfeited or waived any challenge to that reinstatement.

[00:19:19] Speaker 02:
They're not calling into dispute anything about the reinstatement itself. And right now, that's the only order. So that's part one.

[00:19:26] Speaker 04:
Well, but you respond. The government responds to that in your brief. Right. So I think that argument has to be set aside under our case law because you did address it. So go to your next point.

[00:19:41] Speaker 02:
OK, so the second point on Riley and why?

[00:19:45] Speaker 02:
Let's start with Nasrallah. Guzman, Chavez and Riley are clearly inconsistent with this court's prior precedent on how it construes reinstatement.

[00:19:56] Speaker 02:
First, let's look at what Riley did, right? We had previously, or at least beginning before Nasrallah, we had thought that we wait until the end of proceedings. We get to the end of withholding only proceedings. And at that point, we have a final order. And this court had thought, that's your final order. We hook jurisdiction at that point.

[00:20:16] Speaker 02:
What Nasrallah begins to do is say, well, we're going to look at the statutory definition now, 1101A47A, to figure out Whether or not that is a final order of removal or it's something else.

[00:20:29] Speaker 02:
And so under that, well, a CAD order is not. And there's other reasons for thinking that. There's a particular history with regard to CAD orders and how the real ID handles those and separates them out and then makes them subject to petitions for review. Because, I don't know, previously in a number of circuits you had to go into habeas to get those, to have those reviewed.

[00:20:50] Speaker 02:
Then we move to Guzman-Chavez, right? And that deals with withholding only. It has to do with petitioners and post-removal order detention, and whether or not someone who's sitting around waiting for withholding only proceedings is still subject to detention, pre-removal detention or post-removal detention. And the determination is, again, well, that withholding only thing may not be a final order of removal. We're looking specifically at 1101A47, again, to determine whether that is and it's not.

[00:21:24] Speaker 04:
May not be.

[00:21:25] Speaker 02:
Or is not?

[00:21:26] Speaker 04:
Well, you said may not, but that's very interesting that you said may not.

[00:21:30] Speaker 02:
Because in Guzman-Chavez, there was this little hook with regard to, well, we're only talking about a detention provision. What Riley does is say, no, it's not just detention provisions. It is what is part of the final order of review. And that's what makes Riley different. Riley says...

[00:21:50] Speaker 02:
These things that were before and how we conceived of what a final order is before. You shouldn't be doing that.

[00:21:57] Speaker 04:
I just read you language from Riley, though, that is inconsistent with what you're saying or doesn't quite match up. And you have a high bar here on Miller versus Bandy. So I understand the argument that you're making, but you have to really hit the hit the target here. And I'm not sure in light of the statements that I just read to you from Riley that that we can be that clear. I understand you might be, but I'm not sure I can be that clear. So I appreciate your efforts here, though.

[00:22:27] Speaker 02:
Yes. So I think that really the key thing is just a call for this court to go back and look at these specific provisions.

[00:22:35] Speaker 02:
The deportability, you know, what is an order of removal? And it's an order of finding someone removable, right? I mean, or it is a finding of removability or an order, you know, it's an order of Finding someone – finding removability or ordering someone removed.

[00:22:53] Speaker 01:
Well, so that's – That's the key. No, no.

[00:22:56] Speaker 01:
That's your problem because it's disjunctive. So it's not just about removability, right? An order of removal is also about the order that's actually ordering someone to be removed, and that is a reinstatement order.

[00:23:12] Speaker 01:
And so – because the other problem that I had, and I mentioned this in the last case, is Riley is not a reinstatement case. It says nothing about – it doesn't speak to the nature of a reinstatement order, whether it's in the same vein as something else or not. And so how – if neither Riley nor Nasrallah or Gonzalez – With the detention – Guzman-Chavez. Guzman-Chavez. If none of those are reinstatement order cases, how can this trilogy be enough to overcome clear precedent for the Ninth Circuit?

[00:23:48] Speaker 02:
Let me sort of do – think about how we got to Riley in the first place, right?

[00:23:55] Speaker 02:
Because Santos-Zacarea, there we had the exhaustion provision, right? And – We had argued that it was jurisdictional for the longest time.

[00:24:10] Speaker 02:
And what came about in Santos-Sacarias was this response that, well, no, just because of the nature of the provision. If it's going to be jurisdictional, it needs to be some clear rule that it's jurisdictional.

[00:24:26] Speaker 02:
And that upended everything.

[00:24:30] Speaker 02:
But one thing that it did is this court subsequently, under Miller v. Gamney, found that Santos-Zacaria changed how we should look at the 1252b1 deadline. That, hey, that's a drive-by jurisdictional rule. We should consider that to be no longer jurisdictional, right? No longer a jurisdictional bar, but that it is subject to waiver. It's a mandatory bar. It's subject to waiver, and so on and so forth.

[00:24:57] Speaker 02:
And by the same token, I think that In the same way that the analytical principle that sits behind Santos-Zacaria allowed this court to, under Miller v. Gamme, say that 1251B1 is no longer a jurisdictional rule, that that same sort of analytical principle, when we look at 1101A47, lets us do the same thing here.

[00:25:22] Speaker 02:
And I see your point with regard to, it's not just defining removability, but on that second point, I mean, if we look specifically at the reinstatement statute, It nowhere says that someone should be ordered reinstated or anything like that.

[00:25:35] Speaker 02:
Rather, it states that if the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily under an order of removal, the prior order of removal is reinstated. That's it.

[00:25:51] Speaker 02:
There is no order of reinstatement. There is no, the Attorney General shall order the reinstatement under the prior order. It's just that If you make these findings, that previous order gets reinstated. It's not subject to review or reopening, and I assume that's before the administrative agency.

[00:26:10] Speaker 02:
And so that's the reason why we say that, you know, why the government's position is that we don't, that one, this court can look at it again under Miller v. Gannon, and two, that this actually meets that high standard, that there's no determination of removability here. I think we all agree that that's the case. And insofar as whether or not it's an order of removal, well, it's...

[00:26:33] Speaker 02:
It is reinstated, right? The findings are not you're being found removable and therefore we're ordering it.

[00:26:39] Speaker 01:
Let me ask you this. In Monsalvo Velasquez, the court made clear that challenges to removal orders does not mean that one has to challenge removability, which I take to be kind of a core argument in your presentation today. It said, no, we're looking at final – you're challenging final orders of removal. The statute doesn't speak to removability. It's talking about the order of removal. And so here you have the petitioner who's challenging the order of removal, set aside whether you agree that it's in order.

[00:27:17] Speaker 01:
It shouldn't matter whether he's challenging removability itself if he's challenging the order of removal. And on top of that, if the notice of removal is citing to the regulations that include a reasonable fear interview, then petitioner is challenging an aspect of that order of removal. Why isn't that enough?

[00:27:38] Speaker 02:
Right. So this is the four corners argument, right? Because really what we're looking at – I think the petitioner's argument is at the end of the day, what we're really looking – When the order of removal is – we're looking at what that four corners of the document is, and we're trying to figure out if any aspect of it is wrong. And I think that's what you're saying to me as well, correct?

[00:27:56] Speaker 01:
I'm saying the order of removal encompasses all the different components of it, and part of it is a reasonable fear determination. And another part of it is whether someone is removable, the aspects that would make him removable, in the same way that Monsalvo Velasquez – you know, broaden the lens of what is an order of removal, some of those elements might be removability and other things might be other aspects. And if we're reviewing the order, the challenge to the order, it's all of those components, not just the removability aspects.

[00:28:31] Speaker 02:
I think there are two responses to that. First, I think Monsalvo sort of, the Supreme Court decision in Monsalvo carved out sort of these cat-only determinations specifically and said, look, we're not, you know, The dissent says something about that. We don't have to address that today because they're different But second there was the other point that in Monsalvo they were talking about the final order of removal out of standard 240 proceedings and ultimately how you construed voluntary departure which had to do with which somehow affected the The manner in which someone is removed, right?

[00:29:14] Speaker 01:
But not the removability. There's nothing about voluntary departure that says I should not be removed at all. It's whether I should be allowed to be removed under a certain mechanism. And that's my point here.

[00:29:29] Speaker 01:
The challenge to the final order of removal here – is a challenge to a certain aspect of it, and that's the reasonable fear process, which has yet to play out.

[00:29:38] Speaker 02:
Has yet to play out. And that sort of makes this difficult. I think Judge Ware last question. Yes, Judge Ware.

[00:29:45] Speaker 03:
So, okay. I think I'm looking at Aldana Diaz's Aldana, his reinstatement order.

[00:30:00] Speaker 03:
And I think why we think that a reading statement order is an order of removal is because basically that's what it says. It says decision order and officer certification.

[00:30:18] Speaker 03:
And then there's the next line is having reviewed all available evidence, the administrative file, and any statements made or submitted in rebuttal. I have determined. that the above named alien is subject to removal. So he's decided he's subject to removal through reinstatement of the prior order. And then he signs that and that's his order. And it's that he's subject to removal.

[00:30:51] Speaker 03:
Just like the original, only it's through a different process. And I think if the agency had to have seen this as an order of removal to have written this order.

[00:31:10] Speaker 02:
It's interesting you're right that the language of the reinstatement order is, you know, from the government's perspective on how reinstatement orders should be read, not ideal.

[00:31:21] Speaker 02:
But I believe that really, if you look at it carefully, It says that the alien is subject to removal under the reinstatement of the earlier order. It's not finding that the alien is removable or that the individual is removable.

[00:31:39] Speaker 02:
What it's saying is that prior order now has effect.

[00:31:47] Speaker 02:
And insofar as that's the case, that's not a finding of removability.

[00:31:51] Speaker 02:
But again, this court doesn't need to resolve that. And I know your position, Your Honor, that we may be beyond this. But at bottom, there isn't a challenge. The petitioner didn't check a box saying that they were going to challenge the removability findings before the agency. She's not challenging anything with regard to the in-statement now.

[00:32:15] Speaker 02:
And so there's nothing for this court. Ultimately, this is a case where there isn't a challenge to the underlying decision that is currently before the court.

[00:32:25] Speaker 04:
Thank you.

[00:32:36] Speaker 00:
Thank you, Your Honors. Just really quickly, respondent's argument barely engages with Monsalvo, which makes clear that a challenge to removability is not required and that a challenge to a term of the final order of removal is sufficient. And here, Mr. Aldana has stated such a challenge.

[00:32:56] Speaker 00:
This court has found that the original removal order may not be executed against a non-citizen again unless it is reinstated by an authorized official. And it has found for a while that under Castro-Cortez, the INS, and other cases that reinstatement orders are final orders of removal. Nasrallah did not change this. In fact, Nasrallah reinforces finding judicial review available here because Nasrallah rejected the government's argument that if a CAT order was not a final order and it was not merged into a final order, then no statute would allow the court to exercise jurisdiction. The court expressly rejected that.

[00:33:27] Speaker 00:
And I'd like to close, Your Honor, by just reminding the court of what's at stake here. The Supreme Court has recognized time and again that deportation is all the more replete with danger where individuals are claiming persecution or torture if they are returned to their home countries. This court has time and again affirmed the availability of judicial review for individuals in this very posture by recognizing that review in the courts of appeals is essential to the proper constitutional functioning of the system. Nothing in Riley changed that. In this court, and Alonso Juarez also said that Congress has not provided any indication that judicial review should be foreclosed in this context.

[00:34:02] Speaker 00:
Again, nothing has changed, and the government's arguments to the contrary do not address this.

[00:34:06] Speaker 04:
So what's the relief that you're seeking?

[00:34:09] Speaker 00:
Your Honor, we would ask that the court find that it has jurisdiction over Mr. Aldana's petition, that it may equitably toll the filing deadline, and that it hold the petition in abeyance in accordance with the Supreme Court's instructions in Riley, because we recognize the reasonable fear proceedings have not even commenced. Mr. Aldana is still waiting. And so we would ask that you hold this petition in abeyance.

[00:34:28] Speaker 04:
Thank you.

[00:34:29] Speaker 00:
Thank you so much.

[00:34:31] Speaker 04:
So, Ms. Aldana Madrid and Mr. Tennyson, thank you for your oral argument presentations in this case. The case of Aldana Diaz versus Blanche is now submitted.