21-6228 Marin Portillo v. Garland BIA Conroy, IJ A099 631 594 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 9th day of May, two thousand twenty-two. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 RICHARD J. SULLIVAN, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 EDDIN MAURICIO MARIN PORTILLO, 14 Petitioner, 15 16 v. 21-6228 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Edgar Loy Fankbonner, Goldberger 24 & Dubin, PC, New York, NY. 25 26 FOR RESPONDENT: Brian M. Boynton, Principal Deputy 27 Assistant Attorney General; 28 Anthony C. Payne, Assistant 1 Director; Neelam Ihsanullah, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.

6 UPON DUE CONSIDERATION of this petition for review of a

7 decision of an Immigration Judge (“IJ”), it is hereby ORDERED,

8 ADJUDGED, AND DECREED that the petition for review is

9 DISMISSED.

10 Petitioner Eddin Mauricio Marin Portillo, a citizen of

11 Honduras, seeks review of an April 5, 2021 decision of an

12 Immigration Judge (“IJ”) affirming an asylum officer’s

13 determination that Marin Portillo did not establish a

14 reasonable fear of persecution or torture. In the Matter of

15 Eddin Mauricio Marin Portillo, No. A099 631 594 (Immig. Ct.

16 N.Y. City Apr. 5, 2021). We assume the parties’ familiarity

17 with the underlying facts and procedural history.

18 The dispositive issue is whether we have jurisdiction to

19 review this petition for review. We conclude that we do not

20 because our jurisdiction is limited to petitions for review

21 filed within 30 days of a final order of removal. See

22 Bhaktibhai-Patel v. Garland, No. 19-2565,

(2d

23 Cir. Apr. 27, 2022).

24 Marin-Portillo was removed from the United States in 2007 2 1 and 2018. Following his most recent entry, the Department

2 of Homeland Security (“DHS”) reinstated his removal order on

3 March 2, 2021, subjecting him to removal under 8 U.S.C.

4 § 1231(a)(5), which provides a summary removal process. “In

5 short, the agency obtains the alien’s prior order of removal,

6 confirms the alien’s identity, determines whether the alien’s

7 reentry was unauthorized, provides the alien with written

8 notice of its determination, allows the alien to contest that

9 determination, and then reinstates the order.” Johnson v.

10 Guzman Chavez,

(2021) (citing 8 C.F.R.

11 §§ 241.8(a)-(c), 1241.8(a)-(c)). If the alien asserts a fear

12 of returning to the country of removal, he is interviewed by

13 an asylum officer who determines whether he has a reasonable

14 fear of persecution or torture. Bhaktibhai-Patel,

1230819, at *2 (citing

(e)). If the asylum

16 officer finds a reasonable fear, he refers the case to an IJ;

17 if the asylum officer does not find a reasonable fear, the

18 alien may request review by an IJ.

(citing 8 C.F.R.

19 § 208.31(e), (f)). This case involves the latter

20 circumstance.

21 Where, as here, the IJ concurs with the asylum officer’s

3 1 finding, the IJ returns the case to DHS. Id. (citing 8 C.F.R.

2 § 208.31(g)(1)). The IJ’s concurrence and return of the case

3 is not itself a final order of removal because it does “not

4 determine whether ‘the alien is deportable or order[]

5 deportation,” id. at *7 (quoting

(a)(47)(A)),

6 or “‘affect the validity’ of any determination regarding an

7 alien’s deportability or deportation,”

(quoting Nasrallah

8 v. Barr,

(2020)). The Immigration and

9 Nationality Act limits our jurisdiction to petitions for

10 review filed within 30 days of a “final order of removal.”

11

(a)(1), (b)(1); Bhaktibhai-Patel,

1230819, at *5.

13 Accordingly, we have jurisdiction to review the IJ’s

14 negative reasonable fear determination only if Marin

15 Portillo’s petition is otherwise timely to challenge a final

16 order or removal. It is not. The only other decisions that

17 could constitute reviewable final orders are Marin Portillo’s

18 original 2007 removal order and the March 2, 2021 decision

19 reinstating that order. See Bhaktibhai-Patel,

1230819, at *7. We lack jurisdiction over this petition for

21 review because Marin Portillo filed it on April 12, 2021,

4 1 more than 30 days after either of these decisions. See

2 at *7-8; see also

(b)(1).

3 For the foregoing reasons, the petition for review is

4 DISMISSED. All other pending motions and applications are

5 DENIED as moot and stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court

5