Supreme Court Discusses Timing for PFR in Withholding Only Cases

The Supreme Court has determined that the 30-day petition for review deadline is not jurisdictional, but rather, a claims processing rule. In cases involving administrative removal orders (and likely also reinstatement orders), the 30 day timeliness is measured from the issuance of the ICE order, rather than from any dismissal of withholding and CAT applications by the Board of Immigration Appeals. “An order denying relief under the CAT is not a final order of removal and does not affect the validity of a previously issued order of removal or render that order non-final.”

In terms of how a non-citizen will be able to get review of the denial of withholding and CAT, the Supreme Court suggested the following: “the Government can inform aliens of the need to file a petition within 30 days after the issuance of a FARO, and it can alert the court of appeals to the pendency of a withholding-only proceeding so that review there can wait until that issue is decided. And if requests for withholding of removal in cases like Riley’s are decided expeditiously—and that was the whole point of the supposedly streamlined procedure adopted by Congress to effect the quick removal of dangerous aliens—petitions for review of removal orders should not linger long on a court of appeals docket before the withholding issue is ready for review. Finally, if Government makes a general practice of what it has done in Riley’s case, i.e., declining to press for enforcement of the 30-day filing rule, aliens who are mistaken about when a petition for review must be filed will not be hurt.”

The full text of Riley v. Bondi can be found here:

https://www.supremecourt.gov/opinions/24pdf/23-1270_new_3dq3.pdf

Third Circuit Finds that PFR Filing Deadline is Claims Processing Rule

The Third Circuit has determined that the 30-day deadline to file a petition for review of a final removal order is a claims processing rule, not a jurisdictional rule. The court also determined that a reinstatement order is not administratively final until a final agency decision is issued on the applicant’s withholding of removal and CAT applications.

The full text of Inestroza-Tosta v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/221667p.pdf

Supreme Court Interprets Exhaustion Requirement

The Supreme Court has determined that the exhaustion requirement in 8 USC 1252(d)(1) is a claims processing rule, not a jurisdictional bar. Thus, a party can forfeit or waive an objection to exhaustion. In addition, the Court found that the statute does not require the filing of a motion to reconsider with the Board of Immigration Appeals to give the agency to correct legal errors before filing a petition for review of those errors in federal court. Motions to reopen and reconsider are not remedies of right, and the exhaustion requirement only requires an appellant to seek remedies of right.

The full text of Santos Zacaria v. Garland can be found here: https://www.supremecourt.gov/opinions/22pdf/21-1436_n6io.pdf

BIA Finds Claims Processing Rule Objection Forfeited When Raised for the First Time in Motion to Reopen

The Board of Immigration Appeals has determined that a respondent who first raises an objection related to an incomplete Notice to Appear in a motion to reopen has forfeited the objection because it was untimely.

The full text of Matter of Nchifor can be found here:

https://www.justice.gov/eoir/page/file/1515001/download

Third Circuit Rejects Guatemalan Women as a PSG

The Third Circuit has determined that “Guatemala women” do not qualify as a cognizable particular social group for asylum and withholding of removal purposes because the proposed group lacks the requisite particularity. The court also recognized that the Notice to Appear in the case was lacking the time and date of the first removal hearing, which constituted a claims processing rule violation. However, the court determined that equitable considerations supported the agency’s refusal to terminate proceedings despite the rule violation.

The full text of Chavez-Chilel v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/211180p.pdf

Seventh Circuit Finds No Prejudice Needed for Dismissal of Defective NTA

The Seventh Circuit has determined that a respondent who makes a timely objection to a defective Notice to Appear need not show prejudice from the defect in order to obtain dismissal of the proceedings.

The full text of Avila de la Rosa v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D06-24/C:20-1956:J:Wood:aut:T:fnOp:N:2724341:S:0

Fifth Circuit Finds that NTA Lacking Time and Date of First Hearing is not Jurisdictionally Defective but Presents a Claim-Processing Rule

The Fifth Circuit has determined that a Notice to Appear lacking the time and date of the first removal hearing is not jurisdictionally deficient. However, the court agreed with the Seventh Circuit that such a situation does present a claim-processing rule. Thus, the issue needed to be raised before the Board of Immigration Appeals.

The full text of Pierre-Paul v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60275-CV0.pdf

Seventh Circuit Deems Lack of Date and Time of Hearing on Notice to Appear a Waiveable Claims Processing Error

The Seventh Circuit has determined that a Notice to Appear that lacks the time and date of the first removal hearing does not create a jurisdictional defect in the removal proceedings. However, the defect in the document constitutes a claims processing rule violation, which must be timely raised or is deemed waived.

“A failure to comply with the statute dictating the content of a Notice to Appear is not one of those fundamental flaws that divests a tribunal of adjudicatory authority. Instead, just as with every other claim-processing rule, failure to comply with that rule may be grounds for dismissal of the case. But such a failure may also be waived or forfeited by the opposing party.” Failure to raise the issue before the Immigration Judge constitutes forfeiture of the argument.

The full text of Ortiz-Santiago v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D05-20/C:18-3251:J:Wood:aut:T:fnOp:N:2343213:S:0