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 

New York, on the 9th 4 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 
2

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, 2022 WL 1230819 (2d 

23 Cir. Apr. 27, 2022). 

24 Marin-Portillo was removed from the United States in 2007 
3

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, 141 S. Ct. 2271, 2282 (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, 2022 WL 

15 1230819, at *2 (citing 8 C.F.R. § 241.8(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. Id. (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 
4

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 8 U.S.C. § 1101(a)(47)(A)), 

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

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

8 v. Barr, 140 S. Ct. 1683, 1691 (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 8 U.S.C. § 1252(a)(1), (b)(1); Bhaktibhai-Patel, 2022 WL 

12 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, 2022 WL 

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

21 review because Marin Portillo filed it on April 12, 2021, 
5

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

2 at *7-8; see also 8 U.S.C. § 1252(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