[00:00:00] Speaker 01:
The United States Court of Appeals for the Ninth Circuit is now in session.

[00:00:07] Speaker 05:
All right, good afternoon and welcome to the Ninth Circuit hearing argument remotely by Zoom.

[00:00:14] Speaker 05:
I can see everyone's squares and the clock and Mr. De La Torre and Mr. Anderson, can you both hear me?

[00:00:22] Speaker 00:
Yes, Your Honor.

[00:00:24] Speaker 05:
So my name is Bridget Beatty.

[00:00:27] Speaker 05:
I have my chambers here in Phoenix.

[00:00:29] Speaker 05:
I'm very pleased today to be sitting with senior judges, Michael Hawkins and Rick Clifton.

[00:00:35] Speaker 05:
Judge Hawkins is here in Phoenix and Judge Clifton is in Hawaii.

[00:00:41] Speaker 05:
We have set the time for 15 minutes per side this afternoon, but you are not required to use all of that time.

[00:00:48] Speaker 05:
We wanted to give you sufficient time because the case raises some important jurisdictional issues.

[00:00:53] Speaker 05:
but don't feel as if you need to use the entire time if you feel that you've made all the points you want to make and we've stopped asking you questions.

[00:01:02] Speaker 05:
Mr. De La Torre, whenever you're ready to proceed, please go ahead and do you wish to reserve some time for rebuttal?

[00:01:10] Speaker 00:
Yes, Your Honor.

[00:01:10] Speaker 00:
We would like to reserve four minutes.

[00:01:13] Speaker 05:
Please watch the clock.

[00:01:15] Speaker 00:
Thank you, Your Honor.

[00:01:17] Speaker 00:
First of all, good afternoon, judges.

[00:01:23] Speaker 00:
May it please the court, Salvador de la Torre Jr.

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for the petitioner, Jose Guadalupe Navarrete.

[00:01:30] Speaker 00:
I'll begin with our idea of the case summary.

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We believe that the court should remand the case, and we base that belief on the development of the record.

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The missing facts leading us are unable to lead us into whether the government acquiesced in its harm.

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But before we get there, the court must decide whether it has jurisdiction.

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We believe that in this case, in the initial onset, it wasn't as complicated as it is now.

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Before Riley, the government and the petitioner both agreed that the petition for review was timely and that it was submitted to the court at the proper moment.

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Post Friday, we are now tasked with the questions whether the court has jurisdiction and whether the petitioner has waived his ability to seek review based on not challenging the final order of removal.

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We would argue that he has challenged the final order of removal.

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We would argue that in our initial brief,

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Before Riley, that was the understood way of challenging your final order of removal.

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Again, as noted in the opening brief for the respondent, they noted the immigration judge's decision becomes the final agency decision.

[00:03:16] Speaker 00:
This is also provided to us by Andrade V. Garcia.

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Post Reilly, Justice Thomas in his concurrence argued that the Fourth Circuit may not have jurisdiction to hear the challenge or the petition for review because then Reilly did not expressly challenge his final order of removal.

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The final order of removal was issued in this case a year prior to Reilly being decided.

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The final order of removal, according to the Supreme Court in Riley, in this case, was issued in January of 2024.

[00:04:01] Speaker 05:
So Mr. De La Torre, I appreciate that it seems that the landscape has changed while this petition has been pending and being litigated.

[00:04:12] Speaker 05:
You've mentioned Riley.

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There was also the earlier decision in Nasrallah and Monsalvo, where the court has raised this issue of whether

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An order denying relief under the Convention Against Torture of Cat is a final order.

[00:04:31] Speaker 05:
So it has been something the Supreme Court has been discussing before Riley and not just solely in the concurrence of Justice Thomas.

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What I'd like to know from you is what is it that you consider the final order of removal?

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in this case.

[00:04:51] Speaker 05:
From what you just said a moment ago, I think you were saying the January order of reinstatement, reinstating the earlier order of removal.

[00:05:01] Speaker 00:
According to Justice Thomas, Your Honor, that's what he would have us believe.

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For our position, we would argue that the final order is issued once the conclusion of the reasonable fear review hearing is met.

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Once the judge orders whether he is

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denied or affirmed or vacated on that decision, that should be the final order of removal.

[00:05:27] Speaker 05:
So what you're arguing is the denial of cat relief, that that order becomes the final order of removal.

[00:05:33] Speaker 00:
Correct, Your Honor.

[00:05:34] Speaker 00:
And that would be the most logical way of deciding a case.

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And I think it is highlighted in Justice Sotomayor's dissent, where she clearly

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states in her dissent that the illogical way of deciding Riley makes the respondents in those cases petition twofold.

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It bifurcates the case into challenging the final order of removal prior to a decision in the case and also challenging the decisions of the case.

[00:06:14] Speaker 05:
So you're talking about Riley, but if you go back to Nasrallah, which was decided in 2020, the court defined the final order of removal as the order concluding, I'm quoting here, concluding that the alien is deportable or ordering deportation.

[00:06:32] Speaker 05:
And then also held that a cat order or an order denying cat relief did not merge into the final order of removal.

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So this has been, you know, nearly six years now that this has been

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the court's holding that that is what a final order of removal is.

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I don't think it's just justice Thomas's concurrence and Riley or that justice sort of Mayor's dissent changes what's now pretty well established precedent.

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And again, if the court were to take that position,

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Our argument is that we nonetheless should be able to merit at least passing the threshold for the petition for review.

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If the court found... It was pretty clear that what Mr. Neverett challenged was the denial of cat relief.

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Correct.

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And I appreciate your comments that when you said a few times in your briefs, we're not challenging the reinstated removal order.

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And the government also said in their brief,

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that the order denying cat relief was the final order, that both of you are now arguing you should not be bound by those statements because they were pre-Reilly.

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But is there some basis now that Nasrallah, Mansalva, Reilly, all of that case law exists that we could find that something other than the reinstated removal order is the final order?

[00:08:00] Speaker 00:
Again, the court could look into FARA, whether it has jurisdiction to hold the petition for review.

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There is precedent stating that the final order removal comes at the initial determination of the alien being removable and that issue being ordered.

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But if we follow in with that case, we're also, what we're doing is we're bifurcating the cases.

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We're having to appeal a decision that necessarily most people wouldn't make because it's a decision that if they don't, if they waive and they don't appeal, they're never gonna get into a judicial review for their merits of the case.

[00:08:43] Speaker 05:
Didn't the court address that in Riley?

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What the parties have raised is a practical difficulty

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and said that the government could advise petitioners that they need to appeal from the final order of removal, and then advise the court of appeals that there's a challenge or a request for a count relief pending before the agency.

[00:09:06] Speaker 00:
And that is correct, Your Honor.

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And that hasn't happened in this case.

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So if, for instance, the court should dismiss the petition for review, then

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the case in which notice was not given, and the department didn't follow through with that with either of those tasks, then the Fifth Amendment is also at risk of losing its protections.

[00:09:30] Speaker 05:
Because... It sounds like what you want is for us to remand this to the agency so you can challenge the reinstated removal order.

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But on what basis could you challenge that order?

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What basis exists?

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I didn't see anything in your brief making this argument, but also what would be the claim to challenge the reinstated order?

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And that would be, again, the red herring I would argue in the case, Judge, is that people would be challenging the final orders of removal without merit.

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And they wouldn't be doing it because they don't want to appeal.

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It would be more than preserving their right to appeal the merits of their case in the future.

[00:10:22] Speaker 05:
All right.

[00:10:22] Speaker 05:
So that sounds like you're sort of leaning into the argument from the amica group that Mr. Navarrete should be allowed to have a remand and then assert a frivolous claim.

[00:10:38] Speaker 00:
And I would be leaning into that argument, but I would also argue that the court is allowed to hear those arguments because it's also not only deciding whether the petitioner's claim has merit, but also the court's jurisdiction.

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And the court needs to find its own jurisdiction on all the claims.

[00:10:57] Speaker 05:
Sure.

[00:10:58] Speaker 05:
And if it is our conclusion that we don't have jurisdiction because you haven't challenged a final order of removal,

[00:11:07] Speaker 05:
and all the statutes give us jurisdiction over a final order of removal.

[00:11:15] Speaker 05:
You think that we can make that determination retrospective rather than retroactive.

[00:11:20] Speaker 05:
In other words, that we could say we had jurisdiction in the past, but we don't have it now.

[00:11:25] Speaker 00:
I believe after Riley was decided, I believe that that's when the courts are applying it.

[00:11:33] Speaker 00:
I don't think it would be able to be applied retroactively because if that were to happen, then everybody would lose their preservation of a right to appeal.

[00:11:45] Speaker 00:
And that'd be because they didn't appeal the final order of removal, which would have happened a year or more before their case even was adjudicated.

[00:11:57] Speaker 05:
You're getting close to the time you wanted to reserve, but I've been monopolizing the time, so I want to make sure my colleagues have a chance to ask you questions if they wish to do so.

[00:12:07] Speaker 03:
My question is, this is a standalone petition for review of a reasonable fair determination, is that right?

[00:12:20] Speaker 00:
That is correct, Your Honor.

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And you want to be able to assert this in this posture

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independent of 18 U.S.C.

[00:12:33] Speaker 03:
1252?

[00:12:35] Speaker 00:
No, what we would be arguing is that 18 1252 is satisfied by petitioning now for review of the reasonable free review and previously because it joins into

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the challenge to the court's order.

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So, post-Reilly, what the court would have us do is lose that right to appeal because we didn't challenge the final order of removal.

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But what we're arguing is that because we did challenge it in the beginning, because that was the established practice of how you challenge the final order of removal, we shouldn't lose that right and it should be

[00:13:22] Speaker 00:
zippered into or or joined into into the final setting which is the reasonable for your review hearing so you think they've merged correct okay i understand your argument any other questions your honors no thank you and i'll reserve will reserve the balance of your time for rebuttal thank you judge

[00:13:54] Speaker 02:
Good afternoon, your honor, Eric Anderson, representing the attorney general.

[00:13:59] Speaker 02:
The relevant facts in this case can be stated very simply, very quickly.

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Mr. Navarrete was lawfully removed to Mexico in 2003.

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He illegally returned.

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DHS

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took the steps to reinstate that prior order in 2024.

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He did not file a petition for review within 30 days of that reinstatement.

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Instead, he went through his reasonable fear proceedings, which were completed when an asylum officer found that he did not express a reasonable fear of persecution or torture in Mexico.

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An immigration judge agreed with that determination.

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we would ask the court to dismiss the petition for review for the reasons stated in our supplemental brief, or alternatively deny it for those stated in our original answering brief.

[00:14:55] Speaker 04:
And so the initial- The original answering brief, you acknowledge this court had jurisdiction, is that correct?

[00:15:02] Speaker 02:
That's right.

[00:15:03] Speaker 02:
The precedent said yes, Your Honor.

[00:15:06] Speaker 04:
The world turned upside down with Riley.

[00:15:08] Speaker 04:
So everybody, including the government indeed,

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government's position in front of the Supreme Court in Riley was different from what the Supreme Court came out with.

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And so now we're all looking at the new landscape.

[00:15:21] Speaker 04:
And I understand that's the force of your argument with regard to the supplemental brief argument.

[00:15:29] Speaker 04:
But isn't it the case, and shouldn't it be something we recognize, that in fact, based on the

[00:15:38] Speaker 04:
common, perhaps universal understanding at the time that this petition was filed, this court had jurisdiction over it.

[00:15:53] Speaker 02:
Well, I'm not sure about universal, Your Honor.

[00:15:56] Speaker 02:
Certainly in this court, and I would certainly tell you the majority of courts- Fair enough.

[00:16:00] Speaker 04:
Fair enough.

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And so everybody's understanding has changed.

[00:16:03] Speaker 04:
Now, I understand.

[00:16:05] Speaker 04:
We're all bound by the Supreme Court's decision in Riley.

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But I think that puts a different texture that we need to consider.

[00:16:12] Speaker 04:
It may well be that in the face of Riley and other Supreme Court decisions, the question now needs to have a different answer.

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But I think we also need to recognize that at the time this petition was filed, there was no apparent defect.

[00:16:31] Speaker 04:
Now, the government has waived the 30-day time deadline.

[00:16:37] Speaker 04:
But I presume has not waived the possibility of the failure to challenge the final order of removal in its own terms and has not waived the deadline in connection with a potential amended petition that could at least make a stab at challenging that final order of removal.

[00:17:04] Speaker 04:
My question is, what's the difference?

[00:17:08] Speaker 02:
The difference between waiving the 30-day deadline and waiving his ability to amend the petition, Your Honor?

[00:17:15] Speaker 02:
Which is another 30-day problem, but yes.

[00:17:21] Speaker 02:
Well, the first thing we would note is that Mr. Navariti himself, until the argument today, never asked to amend his petition.

[00:17:31] Speaker 02:
Amicus, in their brief,

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for reasons although we've opposed, but they're the ones who have introduced this idea.

[00:17:40] Speaker 04:
I think you want us to entertain that.

[00:17:43] Speaker 04:
You don't want us to issue a decision which says, well, disregarding these other arguments, which may come up in a future case.

[00:17:50] Speaker 04:
I mean, we're not really here focused purely on this petitioner's case.

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We're making a broader statement and you're asking us to make a broader statement.

[00:17:59] Speaker 04:
So I don't know that you really want us to disregard the alternative arguments made by amicus, do you?

[00:18:07] Speaker 02:
Well, formally, Your Honor, I think I have asked you to disregard them in my brief.

[00:18:15] Speaker 04:
I know you have, but I have to ask, do you really want that?

[00:18:18] Speaker 04:
Because you want a decision from this court that says, well, disregarding these other arguments that can be brought up in a future case, in this particular case, petitioner loses.

[00:18:28] Speaker 04:
You want something more than that.

[00:18:30] Speaker 02:
Well, sure, Your Honor.

[00:18:32] Speaker 02:
I mean, there are plenty of occasions where courts decide smaller, lesser, unpublished issues that I don't suspect that's where this is going, but it happens.

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And if the court determines to address a larger issue in something that's going to control in future cases, then I'm ready to talk about it.

[00:18:52] Speaker 04:
And it appears to be purely an issue of law here.

[00:18:57] Speaker 04:
You've made the observation that there has been no request by this petitioner, but you've noted the request could be made, and that possibility has been raised by amicus.

[00:19:06] Speaker 04:
So it's not like it's not on the table or you haven't had an opportunity to speak to it.

[00:19:12] Speaker 01:
That's right, Your Honor.

[00:19:13] Speaker 01:
That's right.

[00:19:14] Speaker 01:
I'm not being surprised here, yes.

[00:19:19] Speaker 05:
But can I ask you, what would be the... Suppose we thought, well, you know, this landscape has changed.

[00:19:25] Speaker 05:
This seems unfair.

[00:19:26] Speaker 05:
and we were to remand and allow a petitioner to file something before the agency to challenge the reinstated order of removal.

[00:19:39] Speaker 05:
What are the grounds?

[00:19:40] Speaker 05:
I mean, what basis is there for a petitioner to challenge a reinstated removal order?

[00:19:48] Speaker 02:
to take it in that order, but I'm going to come back to a procedural point.

[00:19:52] Speaker 02:
But the three issues in reinstatement are, is this an alien who was ordered removed and removed, who illegally reenters?

[00:20:01] Speaker 02:
Those are the issues to be resolved in a reinstatement challenge.

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Now, the fact is, a remand would not provide him, Mr. Navariti, any additional chance

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to challenge that.

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The immigration judge or the asylum officer hearing the reasonable fear do not review any aspect of whether the reinstatement was proper.

[00:20:23] Speaker 02:
That's one of the reasons why the reinstatement was final on the day it was issued in January 2024.

[00:20:29] Speaker 05:
Is there any way that he could go back and challenge the original 2003 removal order?

[00:20:41] Speaker 02:
These quite a lot of these questions have multiple parts.

[00:20:44] Speaker 02:
And the answer is no for several reasons.

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The reinstatement statute says the prior order is not subject to being reopened or reviewed.

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And that is especially the case because Mr. Navarrete's 2003 order was an expedited order under 8 USC 1225.

[00:21:05] Speaker 02:
That is not reviewed in the Court of Appeals.

[00:21:08] Speaker 02:
The only judicial review of that order would have been by a habeas action in district court, which is extremely limited to the issues of

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Is this an alien?

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Is there something that purports to be an expedited removal order?

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And is he an asylee or a refugee or a lawful permanent resident?

[00:21:30] Speaker 02:
Those three very narrow issues are the only thing that could have existed in 2003 and cannot exist now that the order has been reinstated.

[00:21:40] Speaker 05:
So I'm trying to get a sense of how much of a sea change this would be if

[00:21:47] Speaker 05:
we were to conclude that following Miss Rolla, Manzalvo, Riley, a standalone challenge to in order denying cat relief.

[00:21:56] Speaker 05:
That's not a final removal.

[00:21:58] Speaker 05:
We don't have jurisdiction.

[00:21:59] Speaker 05:
So how often would this come up?

[00:22:01] Speaker 05:
Presumably if you have a petitioner who sought asylum, withholding, cancellation, cat, all the various forms of relief,

[00:22:11] Speaker 05:
And they're challenging the order of removal.

[00:22:14] Speaker 05:
We wouldn't have this issue because the cat claim would be pendant essentially to the order of removal.

[00:22:20] Speaker 05:
Here you've mentioned Mr. Neverett had an expedited removal order back in 2003.

[00:22:25] Speaker 05:
And then now he has a reinstated order and where he made a claim of reasonable fear that was denied.

[00:22:33] Speaker 05:
So is it just that category where a standalone cat claim would exist or is this something that's going to have

[00:22:40] Speaker 05:
huge impact and going to affect thousands and thousands of cases.

[00:22:45] Speaker 02:
I am not prepared to offer a number, but I would agree with the sort of taxonomy.

[00:22:51] Speaker 02:
There's removal cases that begin with a notice to appear under 8 USC 1229A.

[00:22:57] Speaker 02:
They go before an immigration judge who resolves all issues of removability and relief, is appealed to the Board of Immigration Appeals, who resolves it all, and then a petition for review to this court.

[00:23:08] Speaker 02:
We would not be making this argument in that case.

[00:23:12] Speaker 02:
We think it is only in the case of

[00:23:14] Speaker 02:
administrative orders, which are either 8 USC 1228, which is a final administrative removal order for certain aggravated felons, or the 8 USC 1231A5, which is the reinstatement we have here.

[00:23:34] Speaker 02:
They both go through this bifurcated system where DHS determines removability

[00:23:41] Speaker 02:
or reinstates the prior removal order, and then the reasonable fear process begins, where an asylum officer says yes or no, he can appeal that to an immigration judge who says yes or no.

[00:23:53] Speaker 02:
The most that could happen is that he would, if he prevails, he goes into withholding only proceedings before an immigration judge.

[00:24:01] Speaker 02:
It's in that bifurcated system that we think Justice Thomas's arguments are

[00:24:08] Speaker 02:
I wouldn't call them arguments.

[00:24:10] Speaker 02:
Observations are completely valid that the statute say you can only review the cat order along with or as part of or in in judicial review of a final order.

[00:24:23] Speaker 04:
I want to stay out of the potential merits of the argument, because before Riley, this case would have been taken up by this court and would have been resolved based on the particular this case.

[00:24:35] Speaker 04:
And it may well be that petitioner doesn't have

[00:24:38] Speaker 04:
a winning argument.

[00:24:39] Speaker 04:
And indeed, you presented the reasons in your original brief as to why there wasn't a winning argument and suggested the case should be submitted without oral argument, a request to which you withdrew, recognizing the broader significance of the case now.

[00:24:55] Speaker 04:
But I'm sitting here looking, basically you're handing us the separate concurring opinion in the Riley case by Justice Thomas.

[00:25:06] Speaker 04:
an opinion which was joined by no other justice of the court.

[00:25:10] Speaker 04:
And I can't help but wonder what does it mean that the rest of the court and no other justice of the court joined or adopted that reasoning?

[00:25:20] Speaker 04:
Are you saying that

[00:25:24] Speaker 04:
The court went ahead and processed the Riley case and remanded to the Fourth Circuit for a feudal exercise.

[00:25:31] Speaker 04:
Are they engaged in exercise of futility?

[00:25:34] Speaker 04:
Are they obligated to take up jurisdiction first?

[00:25:37] Speaker 04:
And if Justice Thomas is correct that the Supreme Court lacked jurisdiction, that any court lacked jurisdiction, why did not any other justice comment on that?

[00:25:50] Speaker 02:
Your Honor, of course, a concurring opinion doesn't bind this court, but the statutes do, and the statutes set out the extent of the court's jurisdiction.

[00:25:58] Speaker 04:
And the other justices had an opportunity to join that decision or join that reasoning and to conclude that they lacked jurisdiction over this case, but they didn't do that.

[00:26:09] Speaker 04:
So why should we assume that the other justices tacitly said, yes, we agree with him, but we're going to waste everybody's time by remanding to the Fourth Circuit?

[00:26:19] Speaker 02:
Well, Your Honor, I think the majority that governs here is the Congress that passed Farah and the immigration act.

[00:26:28] Speaker 04:
But the Supreme Court hasn't said the interpretation you're trying to offer, in which the government itself hadn't previously asserted.

[00:26:35] Speaker 04:
So why should we be overwhelmed by that logic if the government itself didn't discover it until after Riley was decided?

[00:26:44] Speaker 02:
We invite you to join us in discovering the consequences.

[00:26:49] Speaker 04:
I invite you to join us in considering the alternative, which we started with the point that this is plainly unfair because at the time this petition was filed, it followed the process that the government itself agreed was the way to go.

[00:27:01] Speaker 04:
for this court to be able to review this case.

[00:27:04] Speaker 04:
And now you're inviting us to join a process which will result in that unfair result for no reason other than the fact that Justice Thomas happened to make the observation in a separate concurring opinion that was joined by no other justice.

[00:27:17] Speaker 04:
Why should we do that?

[00:27:19] Speaker 02:
Well, Your Honor, I think the fairness here is resolved by considering open cases versus final cases.

[00:27:28] Speaker 02:
Nobody is asking this court to go back to closed cases to reopen them in order to apply this rule.

[00:27:35] Speaker 04:
A petitioner can't go back in time and file the petition you say he needed to file in order for this court to be able to entertain it.

[00:27:43] Speaker 04:
So what is fair about that?

[00:27:49] Speaker 04:
The government doesn't disagree with the approach taken by a petitioner.

[00:27:53] Speaker 04:
Only now the rug's been pulled out from under and you're saying it's the petitioner that should suffer.

[00:27:58] Speaker 04:
No, it may not really matter in this case.

[00:28:00] Speaker 04:
I understand that.

[00:28:01] Speaker 04:
We're not arguing the facts of this case.

[00:28:04] Speaker 04:
We're arguing or considering what the rule should be, who gets to have their case heard by a court.

[00:28:10] Speaker 04:
And I suspect there are petitioners out there that will be affected by this decision who may have

[00:28:16] Speaker 04:
stronger cases to offer on the merits, perhaps than this petitioner, why aren't we being unfair by closing our ears to those arguments?

[00:28:27] Speaker 02:
Your Honor, I think the obligation is

[00:28:32] Speaker 02:
When the highest court decides an issue of what the statute means, it controls in all open cases.

[00:28:39] Speaker 02:
And there are Supreme Court cases cited in our brief saying, reliance on prior contrary precedents does not justify an excuse or an exception.

[00:28:51] Speaker 04:
You're accepting the unfairness and just saying that's how it is.

[00:28:56] Speaker 02:
I'm saying, Your Honor, that Congress established the jurisdiction, and although it certainly will leave some parties unhappy about the outcome, that we're just applying the statutory limits of the jurisdiction.

[00:29:13] Speaker 04:
I can't help but be reminded of one of my favorite movie scenes, and it may not be quite as old as

[00:29:20] Speaker 04:
I am, but Animal House featured the seniors having borrowed the car owned by the freshman's brother and they trashed it and they bring it back and the freshman says to them, what am I gonna tell my brother?

[00:29:35] Speaker 04:
You've ruined it.

[00:29:37] Speaker 04:
And the seniors say back to him using a different word than I'm about to use, hey, you messed up, you trusted us.

[00:29:45] Speaker 04:
So even the government agreed the system, the process

[00:29:50] Speaker 04:
applied by the petitioner and filing the petition for review of this court was how it was under the precedent of this court.

[00:29:57] Speaker 04:
And the mistake made by petitioner wasn't trusting us?

[00:30:06] Speaker 05:
Okay.

[00:30:07] Speaker 05:
Well, when was the petition filed?

[00:30:10] Speaker 02:
May 1st of 2024, Your Honor.

[00:30:14] Speaker 05:
Okay.

[00:30:14] Speaker 05:
So that's four years after Nasrallah was decided.

[00:30:17] Speaker 05:
Nasrallah was decided in 2020.

[00:30:19] Speaker 05:
And so, even if we were to conclude that this is only a fanciful notion by Justice Thomas in a concurrence, in Nisralla, the Supreme Court said in the majority, multiple times, we hold that an order to deny cat relief is not a final order of removal.

[00:30:39] Speaker 05:
And also, it doesn't merge.

[00:30:41] Speaker 05:
That was the issue in Monsalvo and Nisralla.

[00:30:44] Speaker 05:
And the court said that type of order does not merge into the final order of removal.

[00:30:50] Speaker 05:
And then you have FARA and Aurelia, and they both say courts and appeals only have jurisdiction over final order removal and jurisdiction over cat order, denial of cat relief.

[00:31:01] Speaker 05:
It says, let me see, let me find FARA.

[00:31:08] Speaker 05:
Nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under this convention.

[00:31:15] Speaker 05:
The convention, the convention gets tortured or this section

[00:31:19] Speaker 05:
et cetera, except as part of the review of a final order of removal.

[00:31:24] Speaker 05:
So it has to be, we can only see it.

[00:31:26] Speaker 05:
I mean, it's pretty clear and it has been for a very long time that the court of appeals, we only have jurisdiction to review a final order of removal.

[00:31:34] Speaker 05:
And for years before this petition was filed, the court has said that's not a cat order.

[00:31:40] Speaker 05:
I think in fairness that to the petitioner, it didn't come in quite as sharp a focus as it has now.

[00:31:48] Speaker 05:
But I guess the question is, is there a way around what FAR provides for our jurisdiction, what 1252 provides for our jurisdiction, and how the Supreme Court has defined a final order of removal?

[00:32:09] Speaker 02:
I don't think there is, Your Honor.

[00:32:10] Speaker 02:
I cite Nunez-Reyes, an en banc decision of this court, which says jurisdictional holdings always have to be retroactive.

[00:32:17] Speaker 02:
because otherwise you're exceeding the limits that Congress put on you.

[00:32:22] Speaker 01:
I see you.

[00:32:27] Speaker 05:
We have taken you over time, but I want to make sure my colleagues have an opportunity if they want to ask you anything else.

[00:32:36] Speaker 05:
Okay.

[00:32:36] Speaker 05:
All right.

[00:32:36] Speaker 05:
Thank you.

[00:32:36] Speaker 05:
And Mr. De La Torre, you only had a couple of minutes, but we took Mr. Anderson over, so I'll give you, let's see, you almost had three, how about four minutes for revitalization?

[00:32:48] Speaker 00:
Thank you, Your Honor.

[00:32:54] Speaker 00:
Judge, I'd start off by just noting what our opposing counsel has just stated in the number of people it would affect should this be applied retroactively.

[00:33:07] Speaker 00:
Prior to this administration, reasonable fear reviews or reinstatement orders, I don't believe were as common.

[00:33:19] Speaker 00:
with the change in climate, the change in times, the circuit courts, district courts, now are tasked with anybody who is detained after a reentry and processed federally for a criminal reentry, all of those people fall under this new rule.

[00:33:42] Speaker 00:
So

[00:33:42] Speaker 05:
I mean, isn't it by statute if you have a final order removal and you've removed from the country and you re-enter without authorization illegally, then your prior removal order is reinstated?

[00:33:56] Speaker 05:
I don't know a new policy.

[00:33:59] Speaker 05:
It seems to be statute.

[00:34:01] Speaker 00:
I apologize for that characterization of it.

[00:34:08] Speaker 00:
Trying to provide the court is context.

[00:34:11] Speaker 00:
The number of people that would be affected by this is often to change.

[00:34:17] Speaker 00:
As the opposing council mentioned, he doesn't have a number, but this would affect a large number of people, given that final orders of removal may have been years in the past, and now with their inability to challenge them, we'd be waived.

[00:34:38] Speaker 00:
Without challenging the final order of removal, judicial review would be waived.

[00:34:44] Speaker 03:
If we were to accept

[00:34:46] Speaker 03:
If we were to accept your argument, this means that someone could repeatedly reenter and bring up new factual allegations about their treatment in their home country and do it over and over again.

[00:35:07] Speaker 00:
If that were to occur, Your Honor, they would always be processed on the prior order.

[00:35:13] Speaker 00:
So they would likely have the same outcome if they're

[00:35:17] Speaker 00:
for purposes of this argument, if their cat claim were different each time, then everybody would have a duty to assess their claim under the new facts.

[00:35:31] Speaker 00:
But if the cat claim were to remain the same, I believe the result would be the same.

[00:35:37] Speaker 00:
They wouldn't be prejudiced by it.

[00:35:39] Speaker 00:
But if it were a new assessment of facts,

[00:35:44] Speaker 00:
then again, they would have to challenge not only that set of facts, but also challenge the final order of removal.

[00:35:53] Speaker 05:
Okay, the Poison Council said there, he identified two statutes that would raise this scenario.

[00:36:00] Speaker 05:
One is 1231A5, which is a reinstated removal order, which is Mr. Navarret's position.

[00:36:08] Speaker 05:
So as I understand it, if you are subject to a reinstated order of removal,

[00:36:13] Speaker 05:
you can go into, you can make a reasonable fear claim.

[00:36:18] Speaker 05:
And if it's deemed valid or positive, then you could have withholding only proceedings.

[00:36:27] Speaker 05:
But that those proceedings would not be appealable to the BIA.

[00:36:31] Speaker 05:
Instead, we had in our circuit precedent that I believe has been overruled by Nasrallah,

[00:36:39] Speaker 05:
that said you could appeal it to us, but not to the BIA.

[00:36:44] Speaker 05:
So the other route was 1228, which is when a final administrative removal order was entered for someone who committed certain aggravated felonies.

[00:36:55] Speaker 05:
Now, is it the same for people on that path?

[00:36:57] Speaker 05:
Do they also have the option of asking for a reasonable fear hearing and then trying to go into withholding only proceedings?

[00:37:06] Speaker 05:
And if they take that path,

[00:37:08] Speaker 05:
they don't have an appeal to the BIA.

[00:37:11] Speaker 05:
In other words, both of these paths are somewhat expedited and streamlined.

[00:37:15] Speaker 05:
processes.

[00:37:16] Speaker 00:
Do I have that right?

[00:37:18] Speaker 00:
That is correct, Your Honor.

[00:37:19] Speaker 00:
They wouldn't have an appellate review at the BIA.

[00:37:23] Speaker 00:
It would have to go directly to the Ninth Circuit or to the circuit court in which they are found, but only after challenging the final order removal.

[00:37:31] Speaker 00:
Because if they don't, again, in Riley, if they don't challenge that final order removal, then they don't get appellate review of their relief claim.

[00:37:42] Speaker 05:
Okay, thank you.

[00:37:44] Speaker 05:
I think we've taken you over time again.

[00:37:47] Speaker 05:
Let's see if my colleagues would like to ask you anything else.

[00:37:51] Speaker 05:
Seeing no further questions.

[00:37:52] Speaker 05:
All right, thank you.

[00:37:54] Speaker 05:
Thank you.

[00:37:55] Speaker 05:
Council, thank you both for your arguments this afternoon.

[00:37:58] Speaker 05:
They were helpful and this case is submitted.

[00:38:05] Speaker 05:
And we are adjourned.

[00:38:07] Speaker 05:
This court for this session stands adjourned.