19-3262 Esiquio-Marcial v. Garland Poczter, IJ A205 583 140

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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of August, two thousand twenty-two. 5 6 PRESENT: 7 JON O. NEWMAN, 8 SUSAN L. CARNEY, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _________________________________________ 12 13 URBANO ESIQUIO-MARCIAL, 14 Petitioner, 15 16 v. 19-3262 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _________________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 27 Attorney General; Jessica E. 28 Burns, Senior Litigation Counsel; 29 Edward C. Durant, Attorney, Office 30 of Immigration Litigation, United 31 States Department of Justice, 32 Washington, D.C. 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 Urbano Esiquio-Marcial, a native and citizen

6 of Mexico, seeks review of a September 16, 2019 decision of

7 an IJ concurring with the Department of Homeland Security’s

8 finding that Esiquio-Marcial failed to establish a reasonable

9 fear of persecution or torture. In re Urbano Esiquio-

10 Marcial, No. A205 583 140 (Immig. Ct. N.Y.C. Sept. 19, 2019).

11 We assume the parties’ familiarity with the underlying facts

12 and procedural history.

13 Although neither Esiquio-Marcial nor the Government

14 contests 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.” Henderson v. Shinseki, 562

, 434 (2011). Our jurisdiction in removal

20 proceedings is limited to review of petitions filed within 30

21 days of a “final order of removal.”

(a)(1),

22 (b)(1).

23 2 1

2

3 We lack jurisdiction over Esiquio-Marcial’s October 2019

4 petition because it was not timely filed within 30 days of

5 his 2013 removal order or the August 2018 reinstatement of

6 that order. See

(b)(1) (providing 30-day

7 deadline to file petition for review); Bhaktibhai-Patel v.

8 Garland, No. 19-2565,

, at *7–8 (2d Cir. Apr.

9 27, 2022); see also Luna v. Holder,

(2d Cir.

10 2011) (“Th[e] 30–day filing requirement is jurisdictional and

11 is not subject to equitable tolling.” (cleaned up)). “Both

12 of these orders became final well over 30 days before

13 [Esiquio-Marcial] filed his petition.” Bhaktibhai-Patel,

14

, at *7.

15 Although the petition was filed within 30 days of the

16 IJ’s September 2019 decision affirming the asylum officer’s

17 negative reasonable fear determination, that ruling is not a

18 final order of removal because it does “not determine whether

19 the alien is deportable or order deportation,” or “affect the

20 validity of any determination regarding an alien’s

21 deportability or deportation.” Bhaktibhai-Patel,

1230819, at *7 (cleaned up).

23 3 1 For the foregoing reasons, the petition for review is

2 DISMISSED. All pending motions and applications are DENIED

3 and stays VACATED.

4

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

4