20-3353 Reyes Hercules v. Garland Reid, IJ A205 487 165 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 24th day of May, two thousand twenty-two. 5 6 PRESENT: 7 JOSEPH F. BIANCO, 8 WILLIAM J. NARDINI, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _________________________________________ 12 13 OSCAR MISAEL REYES HERCULES, 14 Petitioner, 15 16 v. 20-3353 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _________________________________________ 22 23 FOR PETITIONER: Perham Makabi, Esq., Kew Gardens, 24 NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; John S. Hogan, 28 Assistant Director; Lindsay 29 Corliss, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a

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

3 ADJUDGED, AND DECREED that the petition for review is

4 DISMISSED for lack of jurisdiction.

5 Petitioner Oscar Misael Reyes Hercules, a native and

6 citizen of Honduras, seeks review of a September 21, 2020,

7 decision of an IJ concurring with the Department of Homeland

8 Security’s finding that Reyes Hercules did not establish a

9 reasonable fear of persecution or torture. In re Oscar

10 Misael Reyes Hercules, No. A205 487 165 (Immig. Ct. N.Y. City

11 Sept. 21, 2020). We assume the parties’ familiarity with the

12 underlying facts and procedural history.

13 Although neither Reyes Hercules nor the Government

14 challenges our jurisdiction, “federal courts have an

15 independent obligation to ensure that they do not exceed the

16 scope of their jurisdiction, and therefore they must raise

17 and decide jurisdictional questions that the parties either

18 overlook or elect not to press.” Bhaktibhai-Patel v.

19 Garland, No. 19-2565, --- F.4th ---,

, at *4

20 (2d Cir. Apr. 27, 2022). We have jurisdiction to review

21 petitions for review filed within 30 days of a “final order

22 of removal.”

(a)(1), (b)(1).

2 1 We lack jurisdiction here. Reyes Hercules’s October

2 2020 petition for review is not timely from the IJ’s 2012

3 removal order or the Department of Homeland Security’s August

4 2020 reinstatement of that order. See

(b)(1);

5 Bhaktibhai-Patel,

, at *7-8; see also Luna v.

6 Holder,

(2d Cir. 2011) (“Th[e] 30–day filing

7 requirement is jurisdictional and is not subject to equitable

8 tolling.” (quotation marks omitted)). A reasonable fear

9 determination in withholding-only proceedings, such as the

10 IJ’s order challenged here, does not constitute a final order

11 of removal because it does “not determine whether the alien

12 is deportable or order[] deportation,” or “affect the

13 validity of any determination regarding an alien’s

14 deportability or deportation.” Bhaktibhai-Patel,

1230819, at *7 (quotation marks omitted).

16 For the foregoing reasons, the petition for review is

17 DISMISSED. All pending motions and applications are DENIED

18 and stays VACATED.

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court

3