21

- 6228 Marin Portillo v. Garland BIA Conroy, IJ A 099 631 594 

### 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 FED**  **ERAL 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** 1 **for the Second Circuit, h**  **eld at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 9**  **t h**  **da y of**  **M a**  **y ,**  **two thousand twenty** 

**- two.**  4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **RICHARD J. SULLIVAN,** 8 **STEVEN J. MENASHI,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **EDDIN MAURICIO MARIN PORTILLO ,**  13 **Petitioner ,**  14 15

**v. 21** 

**- 6228**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Edgar Loy Fankbonner, Goldberger 23 & Dubin, PC, New York, NY

. 24 25 **FOR RESPONDENT:** Brian M. Boynton , Principal Deputy 26 Assistant Attorney General ; 27 Anthony C. Payne , Assistant 282 Director; Neelam Ihsanullah , Trial 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4
D C. 5

UPON DUE CONSIDERATION of this petition for review of a 6

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

ADJUDGED, AND DECREED that the petitio n for review is 8

DISMISSED

. 9

Petitioner Eddin Mauricio Marin Portillo , a citizen of 10

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

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

determination that Marin Portillo did not establish a 13

reasonable fear of persecution or torture

. In the M atter of 14

Eddin Mauricio Marin Portillo , No. A 099 631 594 ( I mmig

. Ct

. 15

N.Y. City Apr

. 5 , 2021 ). We assume the parties’ familiarity 16

with the underlying facts and procedural history. 17

T he dispositive issu e is whether we have jurisdiction to 18

review t his petition for review

. We conclude that we do not 19

because our jurisdiction is limited to petitions for review 20

filed within 30 days of a final order of removal

. See 21

Bhaktibhai

- Patel v. Garland , No. 19

- 2565, 2022 WL 1230819 (2d 22

Cir. Apr. 27, 2022). 23

Marin

- Portillo was removed from the United States in 2007 243 and 2018. Following his most recent entry, the Department 1

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

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

§ 1231(a)(5), which provides a summary removal process

. “In 4

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

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

reentry was unauthorized, provides the alien with written 7

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

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

Guzman Chavez , 141 S. Ct. 2271, 2282 (2021) (citing 8 C.F.R. 10

§§ 241.8(a)

- (c), 1241.8(a)

- (c)). If the alien asserts a fea r 11

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

an asylum officer who determines whether he has a reasonable 13

fear of persecution or torture. Bhaktibhai

- Patel , 2022 WL 14

1230819, at *2 (citing 8 C.F.R. § 241.8(e)). If the asylum 15

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

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

alien may re quest review by an IJ. Id. (citing 8 C.F.R. 18

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

circumstance. 20

Where, as here, the IJ concur s with the asylum officer’s 214 finding, the IJ returns the case to DHS. Id. (citing 8 C.F.R. 1

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

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

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

deportation,” i d. at * 7 (quoting 8 U.S.C. § 1101(a)(47)(A)), 5

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

alien’s deportability or deportation ,” id. (quoting Nasrallah 7

v. Barr , 140 S. Ct. 1683, 1691 (2020) )

. The Immigration and 8

Nationality Act limits our jurisdiction to p etition s for 9

review filed within 30 days of a “final order of removal

. ” 10

8 U.S.C. § 125 2 (a)(1), (b)(1); Bhaktibhai

- Patel , 2022 WL 11

1230819, at *5

. 12

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

negative reasonable fear determination only if Marin 14

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

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

could c onstitute reviewable final order s are Marin Portillo’s 17

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

reinstating that order. See Bhaktibhai

- Patel , 2022 WL 19

1230819, at *7 . We lack jurisdiction over this petition for 20

review be cause Marin Portillo filed it on April 12, 2021, 215 more than 30 days after either of these decisions. See id. 1

at *7

- 8 ; see also 8 U.S.C. § 1252(b)(1). 2

For the foregoing reasons, the petition for review is 3

D ISMISSED

. All other pending motions and applications are 4

DENIED as moot and stays VACATED. 5

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