Opinion
20-6 NAC
07-06-2022
NILSON LAGOS RIVERA, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: H.P. Sean Dweck, The Dweck Law Firm, LLP, New York, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Shelley R. Goad, Assistant Director; Kristen A. Giuffreda, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of July, two thousand twenty-two.
FOR PETITIONER:
H.P. Sean Dweck, The Dweck Law Firm, LLP, New York, NY.
FOR RESPONDENT:
Jeffrey Bossert Clark, Acting Assistant Attorney General; Shelley R. Goad, Assistant Director; Kristen A. Giuffreda, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JON O. NEWMAN, GERARD E. LYNCH, Circuit Judges.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED.
Petitioner Nilson Lagos Rivera, a native and citizen of Honduras, seeks review of a December 3, 2019, decision of the BIA affirming a July 1, 2019, decision of an Immigration Judge ("IJ") denying Lagos Rivera's application for withholding of removal and protection under the Convention Against Torture ("CAT") following his reentry without permission and reinstatement of his 2014 removal order. In re Nilson Lagos Rivera, No. A206 013 573 (B.I.A. Dec. 3, 2019), aff'g No. A206 013 573 (Immig. Ct. N.Y. City July 1, 2019). We assume the parties' familiarity with the underlying facts and procedural history.
Although neither Lagos Rivera nor the Government challenges our jurisdiction, "federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Bhaktibhai-Patel v. Garland, 32 F.4th 180, 187 (2d Cir. 2022) (quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011)). Our jurisdiction is limited to review of petitions for review filed within 30 days of a "final order of removal." 8 U.S.C. § 1252(a)(1), (b)(1).
We lack jurisdiction here. Lagos Rivera's January 2020 petition for review is not timely from his 2014 removal order or the Department of Homeland Security's December 2017 reinstatement of that order. See 8 U.S.C. § 1252(b)(1); Bhaktibhai-Patel, 32 F.4th at 190-93; see also Luna v. Holder, 637 F.3d 85, 92 (2d Cir. 2011) ("Th[e] 30-day filing requirement is jurisdictional and is not subject to equitable tolling." (quotation marks omitted)). The BIA's December 2019 decision affirming the IJ's denial of relief in withholding-only proceedings does not constitute a final order of removal because it does "not determine whether the alien is deportable or order[] deportation," or "affect the validity of any determination regarding an alien's deportability or deportation." Bhaktibhai-Patel, 32 F.4th at 190 (quotation marks omitted). Accordingly, there is no timely petition challenging a "final order of removal." 8 U.S.C. § 1252(a)(1), (b)(1).
For the foregoing reasons, the petition for review is DISMISSED. All pending motions and applications are DENIED and stays VACATED.