Ortiz-Alfaro v. Holder

A reinstated removal order is not final, and the Ninth Circuit cannot consider a challenge to reinstatement regulations, while a petitioner’s “reasonable fear screening is still ongoing.”

ALEJANDRO ORTIZ-ALFARO (“Ortiz”) is a Mexican national. After illegally entering the United States he was deported and immediately reentered. The Department of Homeland Security (“DHS”) reinstated Ortiz’ removal order. Ortiz claimed a fear of persecution if returned to Mexico and requested withholding of removal. Following a reasonable fear screening, an asylum officer found Ortiz had not established his claim. Ortiz requested review by an Immigration Judge (“IJ”). He also petitioned the Ninth Circuit, challenging that “the reinstatement regulations are unlawful because they preclude him from seeking asylum.” The Ninth Circuit clarified that an alien with a reinstated removal order could not appeal that order to the Board of Immigration Appeals (“BIA”) and was not eligible for asylum. Nevertheless, the Court “assume[d] without deciding that Ortiz [was] not statutorily precluded from receiving [other relevant] forms of relief despite his illegal reentry.” The Court then explained that while there is no means for Ortiz to appeal the IJ’s forthcoming decision, if the IJ disagreed with the asylum officer the IJ could consider Ortiz’ request for withholding of removal, which could be challenged to the BIA. The Ninth Circuit, however, can only review BIA orders of removal that are final, and there is “no final order of removal until the BIA rejects the last form of relief.” The Court reasoned that if it considered the reinstated removal order final, Ortiz would have no avenue to seek review of determinations regarding his fear of persecution and eligibility for relief. The Court dismissed for lack of jurisdiction because it was still undetermined whether Ortiz would be removed. DISMISSED.