Reported / Citable
Background
Jose Guadalupe Navarrete Pelagio, a native and citizen of Mexico, was removed in 2003 under an expedited removal order after attempting to enter the United States with another person’s resident alien card. He later reentered without authorization. In January 2024, the Department of Homeland Security reinstated the earlier removal order, leaving statutory withholding and Convention Against Torture protection as the only available forms of relief. During the resulting reasonable-fear process, Navarrete described two 2008 robberies and beatings in Mexico. An asylum officer found no reasonable fear of persecution or torture, and an immigration judge affirmed that determination on April 30, 2024.
Navarrete petitioned the Ninth Circuit on May 1, 2024, identifying the immigration judge’s order as a final removal order. His petition challenged only the negative reasonable-fear determination and resulting denial of CAT relief, not the 2003 expedited order or the 2024 reinstated order. The court initially held the petition in abeyance while the Supreme Court considered Riley v. Bondi. After Riley held that the thirty-day filing deadline is a nonjurisdictional claims-processing rule, the Attorney General waived any untimeliness argument. The Ninth Circuit then requested supplemental briefing on whether it had jurisdiction over a petition challenging only CAT relief.
The Court’s Holding
The amended opinion dismissed the petition for lack of jurisdiction under 8 U.S.C. § 1252(a)(1). The panel explained that IIRIRA, FARRA, and the REAL ID Act make a petition for review the exclusive route for CAT claims, but authorize that review only as part of review of a final removal order. Relying on Nasrallah v. Barr, Johnson v. Guzman Chavez, and Riley, the court held that an order affirming a negative reasonable-fear determination and denying CAT protection neither constitutes a final removal order nor merges into one. CAT protection concerns whether removal to a particular country is permissible; it does not affect the validity of the underlying removal order. Consequently, a standalone CAT petition cannot independently invoke appellate jurisdiction.
The panel acknowledged surface tension with Monsalvo v. Bondi, which permitted review of a legal question concerning a voluntary-departure deadline without a separate challenge to removability. It reconciled the decisions by distinguishing orders that temporarily prevent removal altogether from orders that restrict only the manner or destination of removal. A voluntary-departure order temporarily impairs the removal order’s operative force, whereas a CAT order leaves the petitioner removable notwithstanding its continuing effect. The court therefore concluded that Monsalvo did not displace Nasrallah or establish jurisdiction here.
The court also rejected two fallback requests. It could not make its jurisdictional holding prospective only, notwithstanding petitioners’ prior reliance on Ninth Circuit practice, because precedent forbids prospective-only jurisdictional rulings. It denied as futile the request to add a nominal challenge to the reinstated removal order: Navarrete had forfeited such a challenge before the agency, failed to raise it in briefing, and conceded at oral argument that the challenge would be frivolous. The accompanying order amended the March 23, 2026 opinion, denied the pending sua sponte en banc call as moot, and allowed rehearing petitions from the amended opinion.
Key Takeaways
- A petition challenging only a CAT order does not invoke Ninth Circuit jurisdiction under 8 U.S.C. § 1252(a)(1).
- CAT claims remain reviewable alongside a final order of removal, but the CAT order and removal order remain legally distinct.
- The panel reconciled Monsalvo with Nasrallah by distinguishing temporary barriers to any removal from restrictions on removal to a particular country.
- Reliance on earlier practice cannot make a jurisdictional ruling prospective only.
- The court left unresolved whether an order reinstating an expedited removal order is itself a final order of removal.
Why It Matters
The decision forecloses a standalone appellate route for petitioners in Navarrete’s procedural position who seek review only of a negative reasonable-fear determination and CAT denial. It requires any CAT challenge to be connected to review of a final removal order, while emphasizing that equitable concerns and prior reliance cannot expand statutory jurisdiction.
The opinion also supplies a case-specific framework for applying Monsalvo alongside Nasrallah and Riley. Its amendment analysis further shows that a petitioner cannot manufacture jurisdiction through an admittedly frivolous, forfeited, and belatedly raised challenge to a reinstated removal order. The court expressly avoided deciding the reinstated order’s finality because amendment would have been futile.