FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LUIS ALONSO-JUAREZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 15-72821 

Agency No.

A072-709-355 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 4, 2022

Seattle, Washington

Filed September 8, 2023

Before: Mary H. Murguia, Chief Judge, and William A. 

Fletcher and Mark J. Bennett, Circuit Judges.

Opinion by Chief Judge Murguia
2 ALONSO-JUAREZ V. GARLAND

SUMMARY*

Immigration

Denying Jose Luis Alonso Juarez’s petition for review of 

an immigration judge’s decision upholding an asylum 

officer’s negative reasonable fear determination following 

the reinstatement of a prior order of removal, the panel held 

that: (1) the thirty-day deadline for filing a petition for 

review set forth in 8 U.S.C. § 1252(b)(1) is a nonjurisdictional rule; (2) Alonso’s petition for review, which 

was filed within thirty days of the conclusion of his 

reasonable fear proceedings, but not within thirty days of the 

reinstatement of his removal order, was timely; and (3) the 

reasonable fear screening procedures established by 

regulation are consistent with the statutory provisions 

governing withholding of removal.

In light of Santos-Zacaria v. Garland, 598 U.S. 411 

(2023)—holding that a neighboring exhaustion provision in 

the Immigration and Nationality Act (“INA”), 8 U.S.C. 

§ 1252(d)(1), was not jurisdictional—the panel held that the 

thirty-day deadline for petitions for review set forth in 8 

U.S.C. § 1252(b)(1) is a mandatory, non-jurisdictional rule.

The panel concluded that Ortiz-Alfaro v. Holder, 694 

F.3d 955 (9th Cir. 2012), in which this court held that a 

petition arising from a reinstated order of removal is not ripe 

for review until the reasonable fear proceedings have 

concluded, was not clearly irreconcilable with the Supreme 

Court’s decisions in Nasrallah v. Barr, 140 S. Ct. 1683 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
ALONSO-JUAREZ V. GARLAND 3

(2020) and Johnson v. Guzman Chavez, 141 S. Ct. 2271 

(2021). The panel declined to adopt the Second Circuit’s 

contrary interpretation in Bhaktibhai-Patel Patel v. Garland, 

32 F.4th 180 (2d Cir. 2022)—that a timely petition must be 

filed within thirty days of the reinstated order of removal—

because doing so would raise grave constitutional concerns 

by effectively cutting off judicial review of reasonable fear 

and withholding-only decisions. The panel also rejected as 

unworkable the government’s suggestion of putting petitions 

in abeyance pending completion of reasonable fear or 

withholding-only proceedings. Accordingly, the panel held 

that a reinstated removal order becomes final, and the 30-

day period for filing a petition for review begins, only after 

the reasonable fear proceedings have concluded.

To the extent Alvarado-Herrera v. Garland, 993 F.3d 

1187 (9th Cir. 2021), was unclear on this point, the panel 

held that the reasonable fear screening regulations, 8 C.F.R. 

§§ 208.31 and 1208.31, are not inconsistent with the 

statutory scheme for determining eligibility for withholding 

of removal. 

The panel concluded that Alonso’s petition was timely, 

and in a concurrently filed memorandum disposition, denied 

Alonso’s petition on the merits.
4 ALONSO-JUAREZ V. GARLAND

COUNSEL

Vicky Dobrin (argued) and Hilary Han, Dobrin & Han PC, 

Seattle, Washington, for Petitioner.

Shahrzad Baghai (argued), Trial Attorney, Office of 

Immigration Litigation; Sabatino F. Leo, Assistant Director, 

Office of Immigration Litigation; Brian M. Boynton, 

Principal Deputy Assistant Attorney General, Civil 

Division; United States Department of Justice, Washington, 

D.C.; for Respondent.

Kristin Macleod-Ball and Trina A. Realmuto, National 

Immigration Litigation Alliance, Brookline, Massachusetts, 

for Amici Curiae National Immigration Litigation Alliance, 

Center for Gender & Refugee Studies, Florence Immigrant 

and Refugee Rights Project, and Northwest Immigrant 

Rights Project.

Lee Gelernt and Anand Balakrishnan, American Civil 

Liberties Union Foundation, Immigrants’ Rights Project, 

New York, New York; Cody Wofsy, American Civil 

Liberties Union Foundation, Immigrants’ Rights Project, 

San Francisco, California; for Amicus Curiae American 

Civil Liberties Union.
ALONSO-JUAREZ V. GARLAND 5

OPINION

MURGUIA, Chief Circuit Judge:

Jose Luis Alonso Juarez (“Alonso”), a native and citizen 

of Mexico, reentered the United States without inspection in 

2003. The Department of Homeland Security (“DHS”) 

ordered him removed to Mexico after reinstating an earlier 

removal order that had been entered against him in 1994. 

Because Alonso expressed a fear of returning to Mexico, an 

asylum officer conducted a screening interview to determine 

whether he reasonably feared persecution or torture in his 

home country. The asylum officer determined that Alonso

did not have a reasonable fear of such harm, and an 

immigration judge (“IJ”) affirmed that determination. Thirty 

days after the IJ’s decision—but more than thirty days after 

the date his removal order was reinstated—Alonso 

petitioned for review on several grounds, including that the 

reasonable fear screening procedures established by federal 

regulation are inconsistent with the statutory provisions 

governing withholding of removal.1 

In briefing and at oral argument, the government 

conceded that Alonso’s petition was timely pursuant to 

Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012), in 

which we held that a petition is not ripe for review until the 

aforementioned reasonable fear proceedings have 

concluded. Under Ortiz-Alfaro, a petition for review should 

be filed within thirty-days of the conclusion of reasonable 

fear proceedings. Id. at 958. 

1 Alonso challenges the IJ’s decision on two other grounds that we 

address in a memorandum disposition filed concurrently with this 

opinion. 
6 ALONSO-JUAREZ V. GARLAND

Several weeks after we heard oral argument, the 

government filed a letter under Federal Rule of Appellate 

Procedure (“FRAP”) 28(j) challenging our jurisdiction to 

entertain Alonso’s petition for review, and those of 

petitioners similarly situated. The government’s position 

that we lacked jurisdiction was based on a Second Circuit 

decision that held that recent Supreme Court precedent—

Nasrallah v. Barr, 140 S. Ct. 1683 (2020) and Johnson v. 

Guzman Chavez, 141 S. Ct. 2271 (2021)—requires 

petitioners to file their petition for review of an IJ’s 

reasonable fear determination within thirty days of the

removal order’s reinstatement. See Bhaktibhai-Patel v. 

Garland, 32 F.4th 180, 193 (2d Cir. 2022). Under the 

Second Circuit’s standard, Alonso’s petition for review 

would be untimely. 

Months later, the government changed course based on 

subsequent Supreme Court precedent—Santos-Zacaria v. 

Garland, 598 U.S. 411 (2023)—holding that a neighboring 

provision in the Immigration and Nationality Act (“INA”), 8 

U.S.C. § 1252(d)(1), was not jurisdictional. Santos-Zacaria, 

598 U.S. at 416. The government now contends that the 

reasoning in Santos-Zacaria overrules our prior holding that 

8 U.S.C. § 1252(b)(1), the INA provision that establishes the 

thirty-day filing deadline for petitions like Alonso’s, is 

jurisdictional. See, e.g., Magtanong v. Gonzales, 494 F.3d 

1190, 1191 (9th Cir. 2007). Alonso agrees that the thirtyday filing deadline is no longer jurisdictional, but still

disagrees that his petition was untimely. Alonso continues 

to maintain that Ortiz-Alfaro’s holding that petitions for 

review become ripe upon the conclusion of reasonable fear 

proceedings remains good law. 

Today, we reach three conclusions. First, we agree with 

the parties that, under Santos-Zacaria, the thirty-day 
ALONSO-JUAREZ V. GARLAND 7

deadline set forth in 8 U.S.C. § 1252(b)(1) is a nonjurisdictional rule. Second, we conclude that neither 

Nasrallah nor Guzman Chavez is “clearly irreconcilable” 

with our decision in Ortiz-Alfaro. See Miller v. Gammie, 

335 F.3d 889, 899 (9th Cir. 2003) (en banc). Accordingly, 

Alonso’s petition for review, which was filed within thirty 

days of the conclusion of his reasonable fear proceedings, is 

timely. Third, on the merits, we reject Alonso’s argument 

that the reasonable fear screening procedures established by 

regulation are inconsistent with the statutory provisions 

governing withholding of removal. To the extent our 

holding in Alvarado-Herrera v. Garland, 993 F.3d 1187 (9th 

Cir. 2021), was unclear on this point, we clarify today that 

the reasonable fear screening proceedings are not 

inconsistent with the statutory provisions governing 

withholding of removal. We therefore deny Alonso’s 

petition. 

I.

Alonso is a native and citizen of Mexico. He first 

unlawfully entered the United States in January 1990. 

Alonso first came to the attention of immigration officials in 

August 1992, following an Oregon state drug conviction. He

was removed to Mexico in September 1992, but he later

returned and reentered without inspection. In March 1994, 

Immigration and Naturalization Service officers 

apprehended Alonso and charged him with being subject to 

removal for entering the United States without inspection. 

The IJ issued an order of removal at an in absentia hearing 

in December 1994. In December 1998, Alonso voluntarily 

returned to Mexico based on the 1994 removal order, but he

re-entered the United States, again without inspection, in 

August of 2003. 
8 ALONSO-JUAREZ V. GARLAND

In June 2015, Alonso was arrested and detained based on 

the December 1994 removal order. DHS reinstated the 

removal order in July 2015, and referred Alonso to a 

reasonable fear screening interview with an asylum officer 

after he expressed a fear of persecution and torture if 

removed to Mexico. 

The asylum officer found Alonso’s testimony credible 

but concluded that Alonso failed to establish a reasonable 

fear of persecution or torture. Alonso requested that an IJ 

review the asylum officer’s reasonable fear determination. 

In September 2015, the IJ affirmed the asylum officer’s 

negative reasonable fear determination. Alonso then filed a 

petition for review within thirty days of the IJ’s affirmance 

of the negative reasonable fear decision. 

II.

A prior removal order can be reinstated for noncitizens 

who “reenter[] the United States illegally after having been 

removed or having departed voluntarily, under an order of 

removal.” 8 U.S.C. § 1231(a)(5). A reinstated order of 

removal “is not subject to being reopened or reviewed, [and] 

the [noncitizen] is not eligible and may not apply for any 

relief under this chapter.” Id. 

Despite this seemingly categorical prohibition on relief

from removal, noncitizens subject to a reinstatement order 

are eligible to apply for statutory withholding of removal and 

protection under the Convention Against Torture (“CAT”) at 

a hearing before an IJ. See Alvarado-Herrera, 993 F.3d at

1190. To obtain that hearing, the noncitizen is placed in the 

reasonable fear proceedings set forth in 8 C.F.R. §§ 208.31

and 1208.31, where the noncitizen must first pass a 

screening interview with an asylum officer. Id. at §§ 208.31 

and 1208.31. In that screening interview, the noncitizen 
ALONSO-JUAREZ V. GARLAND 9

must show a “reasonable fear” of persecution or torture if 

they are returned to their home country. 8 C.F.R. 

§§ 208.31(a) & (c), 1208.31(a) & (c), 1241.8(e).2 

If the asylum officer determines that the noncitizen has 

shown a reasonable fear of persecution or torture in the 

screening interview, the asylum officer places the noncitizen

in what are known as “withholding-only proceedings” by 

referring the noncitizen to an IJ for a hearing. 8 C.F.R. 

§§ 208.31(e), 1208.31(e). In contrast to a formal removal 

proceeding, at which the noncitizen can pursue asylum and 

other forms of relief from removal, withholding-only 

proceedings are more limited in that the noncitizen may seek 

only withholding of removal and CAT protection. Id. 

§§ 208.31(e), 1208.31(e). After the hearing, the IJ 

determines if the noncitizen is in fact eligible for 

withholding of removal or CAT protection. Id.

§§ 208.31(e), 1208.31(e). If the IJ determines the noncitizen 

is not eligible for either form of relief, the noncitizen may 

appeal the IJ’s determination directly with the Board of 

Immigration Appeals (“BIA”). Id. §§ 208.31(e), 1208.31(e).

On the other hand, if the asylum officer determines that 

a noncitizen does not have a reasonable fear, the noncitizen 

may seek review of the officer’s determination by an IJ. Id.

§§ 208.31(g), 1208.31(g). But the review hearing before an 

IJ of the asylum officer’s negative reasonable fear 

determination is an abbreviated proceeding. Bartolome v. 

2 A noncitizen demonstrates a reasonable fear of persecution or torture 

by establishing “a reasonable possibility that he or she would be 

persecuted on account of his or her race, religion, nationality, 

membership in a particular social group or political opinion, or a 

reasonable possibility that he or she would be tortured in the country of

removal.” 8 C.F.R. §§ 208.31(c) & (e), 1208.31(c) & (e). 
10 ALONSO-JUAREZ V. GARLAND

Sessions, 904 F.3d 803, 813 (9th Cir. 2018). Unlike the IJ 

hearing in withholding-only proceedings after an asylum 

officer’s positive reasonable fear determination, the review

hearing before the IJ is limited to a de novo review of the 

asylum officer’s negative reasonable fear determination. Id.

at 812. In other words, the noncitizen may not yet apply for 

withholding of removal or CAT protection at this review 

hearing. And the IJ may, but is not required to, accept 

additional evidence. Id. at 812–13; see also AlvaradoHerrera, 993 F.3d at 1195. 

If the IJ disagrees with the asylum officer’s negative 

reasonable fear determination, the IJ places the noncitizen in 

withholding-only proceedings for a hearing in which the 

noncitizen can apply for withholding and CAT relief. 8 

C.F.R. §§ 208.31(g), 1208.31(g). But if the IJ affirms the 

asylum officer’s negative reasonable fear finding, the 

noncitizen may not apply for relief and may not petition for 

review from the BIA. 8 C.F.R. § 208.31(g)(1). Instead, the 

noncitizen may only petition for review directly with the 

appropriate United States Court of Appeals within thirty 

days. Alvarado-Herrera, 993 F.3d at 1191. 

III.

We first address whether we have jurisdiction to 

entertain Alonso’s petition for review under 8 U.S.C 

§§ 1252(a)(1) and (b)(1). Section 1252(a)(1) establishes that 

we are empowered to review a petition for review of a final 

order of removal. And Section 1252(b)(1) clarifies that such 

a petition must be filed within thirty days of the final order 

of removal. The jurisdictional question before us is twofold: (1) whether the thirty-day deadline set forth in 

§ 1252(b)(1) is jurisdictional rather than merely mandatory; 
ALONSO-JUAREZ V. GARLAND 11

and (2) what constitutes a “final order of removal” that 

triggers the thirty-day deadline. 

In their briefing, neither Alonso nor the government 

questioned our jurisdiction. The government wrote:

This Court has jurisdiction to review the 

Immigration Judge’s reasonable fear 

determination because she issued it in 

connection with a reinstated removal 

order. . . . The Immigration Judge’s 

September 8, 2015 concurrence with the 

asylum officer’s negative reasonable fear 

determination made the reinstatement order 

administratively final, and thus subject to 

review under 8 U.S.C. § 1252. See AndradeGarcia [v. Lynch], 828 F.3d [829,] 833 [(9th 

Cir. 2016)]; 8 C.F.R. § 208.31(g)(1).

Similarly, neither party questioned our jurisdiction at oral 

argument.

Several weeks after argument, the government filed a 

letter pursuant to FRAP 28(j), notifying us of the Second 

Circuit’s decision in Bhaktibhai-Patel. Bhaktibhai-Patel

runs contrary to our holding in Ortiz-Alfaro on the issue of 

our jurisdiction over a petition for review of a reinstated 

order of removal. In Bhaktibhai-Patel, the Second Circuit 

held that under two recent Supreme Court cases—Nasrallah 

and Guzman Chavez—the time to file a petition for review 

of an IJ’s negative reasonable fear determination runs from 

the date an order of removal is reinstated. 32 F.4th at 183–

84. Recognizing that Bhaktibhai-Patel’s holding would 

depart from our court’s precedent, the government asked us 

to assume jurisdiction arguendo and deny Alonso’s petition 
12 ALONSO-JUAREZ V. GARLAND

on the merits. But the government asked us to apply the 

reasoning in Bhaktibhai-Patel prospectively. Although the 

government asserted that we could assume jurisdiction in 

Alonso’s case, it continued to advance its new position that 

we lacked jurisdiction in other similar cases pending before

our court.

Because we must assure ourselves of our jurisdiction, we 

address it in this case. Ayala v. Sessions, 855 F.3d 1012, 

1017 (9th Cir. 2017) (“We have jurisdiction to consider our 

own jurisdiction.”). We asked the parties to file

supplemental briefing on the issue of whether Ortiz-Alfaro

remained good law, and subsequently, whether the thirtyday deadline ran from the conclusion of reasonable fear 

proceedings. And we held numerous cases in this court in 

abeyance pending our resolution of this issue in this case. 

Months later, the government changed course—again—

based on the Supreme Court’s decision in Santos-Zacaria, 

which held that 8 U.S.C. § 1252(d)(1)’s exhaustion 

requirement is non-jurisdictional. Because the same thirtyday deadline provision in § 1252(b)(1) is also in 

§ 1252(d)(1), and because there are important similarities 

between § 1252(d)(1) and § 1252(b)(1), the government 

moved for supplemental briefing on whether the thirty-day 

filing deadline remains jurisdictional after Santos-Zacaria. 

In its subsequent supplemental brief, the government 

asserted that the reasoning in Santos-Zacaria applies to 

§ 1252(b)(1), thereby making the thirty-day deadline 

mandatory, but not jurisdictional. So the government 

withdrew its prior argument that Alonso’s petition was 

untimely, conceding that this argument was forfeited

because the government failed to raise it in its merits briefing 

and at oral argument in this case. But the government 
ALONSO-JUAREZ V. GARLAND 13

maintains its position that Alonso’s petition was untimely,

even if it forfeited this argument. 

In response, Alonso agreed that the thirty-day deadline 

provision, 8 U.S.C. § 1252(b)(1), is not a jurisdictional rule, 

and therefore subject to waiver and forfeiture. Nonetheless, 

Alonso contends that we must first decide the threshold 

question of whether Ortiz-Alfaro remains good law; in other 

words, whether Alonso’s petition was timely. 

As discussed below, we first agree with the parties and 

hold that the thirty-day filing deadline under § 1252(b)(1) 

can no longer be understood as a jurisdictional rule after 

Santos-Zacaria. Second, although the government forfeited 

and affirmatively waived the question of when the thirty-day 

deadline is triggered, we exercise our discretion to reach the 

issue. We do so because the issue is fully briefed, our court 

has expended significant time and resources on it, and 

resolving the issue is of great public importance to the many 

petitioners similarly situated. Nuelsen v. Sorensen, 293 F.2d 

454, 462 (9th Cir. 1961) (noting that we may reach a 

forfeited issue “where injustice might otherwise result or 

where public policy requires”); Thompson v. Runnels, 705 

F.3d 1089, 1100 (9th Cir. 2013) (explaining that we “do not 

abuse our discretion in addressing” a legal issue that was 

arguably waived or forfeited when the parties had the 

“opportunity to brief” it). We hold that we remain bound by 

Ortiz-Alfaro—the thirty-day deadline for filing a petition for 

review is triggered upon the completion of reasonable fear 

proceedings. So, Alonso’s petition was timely. 

A.

We first consider whether 8 U.S.C. § 1252(b)(1), the 

thirty-day filing deadline, is a jurisdictional or a mandatory 

rule. This distinction is important. A mandatory rule 
14 ALONSO-JUAREZ V. GARLAND

“govern[s] how courts and litigants operate within” the 

bounds of a court’s authority to adjudicate cases. SantosZacaria, 598 U.S. at 416. By contrast, a jurisdictional rule 

sets the bounds of a court’s authority to adjudicate cases and 

has “[h]arsh consequences.” Id. (quoting Fort Bend Cnty. v. 

Davis, 139 S. Ct. 1843, 1849 (2019)). “[B]ecause courts are 

not able to exceed limits on their adjudicative authority, they 

cannot grant equitable exceptions to jurisdictional rules” and 

must strictly enforce them sua sponte at any time in the 

litigation. Id. 

The Supreme Court and this court have previously 

treated 8 U.S.C. § 1252(b)(1) as a jurisdictional rule. In 

Stone v. I.N.S., 514 U.S. 386, 405 (1995), the Supreme Court 

noted that “judicial review provisions . . . are jurisdictional 

in nature and must be construed with strict fidelity to their 

terms.” Id. at 405. In Magtanong v. Gonzales, we relied on 

Stone to clarify that “[t]he provision establishing the 30–day 

filing period[, § 1252(b)(1),] is mandatory and 

jurisdictional.” 494 F.3d at 1191. 

But in Santos-Zacaria, the Supreme Court clarified that 

Stone is no longer dispositive as to the question of whether 

judicial review provisions are jurisdictional, rather than 

mandatory, rules. 598 U.S. at 421. The Court analyzed 

whether the exhaustion requirement in 8 U.S.C. § 1252(d)(1)

was jurisdictional. Id. at 413. The government argued, in 

part, that the exhaustion requirement at issue was a

jurisdictional rule because Stone had “described portions of 

the [INA] that contained § 1252(d)(1)’s predecessor as 

‘jurisdictional.’” Id. at 422. The Court explained, however, 

that Stone predated cases that “br[ought] some discipline to 

the use of the term jurisdictional,” Id. at 421 (cleaned up) 

(referencing Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), 

as the start of this trend), under which “we treat a rule as 
ALONSO-JUAREZ V. GARLAND 15

jurisdictional only if Congress clearly states that it is,” Id. at 

416.

The Supreme Court emphasized that, unlike in

§ 1252(d)(1)’s exhaustion provision, Congress spoke in 

plain jurisdictional terms elsewhere in § 1252. Id. at 418. 

Indeed, other provisions of § 1252 and other laws governing 

immigration, Congress specified that “no court shall have 

jurisdiction” to review certain matters. Id. at 418−19 & n.5 

(citing 8 U.S.C. §§ 1252(a)(2)(A), (a)(2)(B), (a)(2)(C), 

(b)(9), (g), 1182(a)(9)(B)(v), (d)(3)(B)(i), (d)(12), (h), (i)(2), 

1158(a)(3), 1227(a)(3) (C)(ii), 1229c(f), 1255a(f)(4)(C) and 

1225(b)(1)(D)). The exhaustion provision, on the other 

hand, lacked such jurisdictional language. Id. at 419. 

Here, as the parties recognize, the thirty-day deadline 

provision, § 1252(b)(1), suffers from the same flaw. The 

thirty-day deadline provision is contained within the same 

statute as the exhaustion provision deemed nonjurisdictional in Santos-Zacaria, and similarly lacks plainly 

jurisdictional language. So, although we previously relied 

on Stone to hold that § 1252(b)(1) was a jurisdictional rule, 

that reasoning is now “clearly irreconcilable” with the 

Supreme Court’s intervening reasoning in Santos-Zacaria. 

Miller, 335 F.3d at 900 (holding that three-judge panels must 

follow circuit precedent unless it is “clearly irreconcilable” 

with intervening higher authority). We therefore hold today 

that the thirty-day deadline provision, § 1252(b)(1), is a nonjurisdictional rule.3 

3 Though the parties dispute whether § 1252(b)(1) is subject to equitable 

tolling if it is a non-jurisdictional rule, we need not and do not decide 

that dispute today because Alonso’s petition was timely absent any

tolling. 
16 ALONSO-JUAREZ V. GARLAND

B.

Next, we consider whether our holding in Ortiz-Alfaro

that, for purposes of the thirty-day filing deadline, a 

reinstated order of removal becomes final upon the 

conclusion of reasonable fear proceedings, remains good 

law. 

1.

In Ortiz-Alfaro, DHS reinstated the petitioner’s prior 

order of removal and referred him to an asylum officer for a 

reasonable fear interview after the petitioner expressed a fear 

of persecution and torture. 694 F.3d at 957. After the 

asylum officer concluded Ortiz did not have a reasonable 

fear, Ortiz requested that an IJ review that determination. Id. 

But prior to the IJ’s review, Ortiz filed a petition for review 

challenging the agency’s reasonable fear regulations 

because they barred asylum relief. Id. The government 

asked us to dismiss Ortiz’s petition, arguing that we lacked 

jurisdiction because DHS could not execute Ortiz’s 

reinstated removal order until the reasonable fear 

proceedings were complete. Id. Contrary to its position here 

today, the government then argued that the reinstated 

removal order was not yet final for judicial review. Id. (first 

alteration in original).

Reviewing the relevant statutes, we agreed with the 

government. Id. at 958. We explained that finality of a 

reinstated removal order is usually defined by 8 U.S.C. 

§ 1101(a)(47), which states that removal orders become final 

“upon the earlier of—(i) a determination by the [BIA] 

affirming such order; or (ii) the expiration of the period in 

which the [noncitizen] is permitted to seek review of such 

order by the [BIA].” Id. But this statutory definition “[did]

not dictate a clear answer” on whether Ortiz’s reinstated 
ALONSO-JUAREZ V. GARLAND 17

removal order was final, “because there is no way to appeal 

the reinstatement of a removal order to the BIA.” Id. (citing 

8 C.F.R. § 241.8).

We then proceeded to consider the constitutional 

implications of concluding that a reinstated removal order 

became final on the date of Ortiz’s reinstatement, as opposed 

to the date on which the reasonable fear proceedings were 

completed. Id. We recognized that “[t]he point at which a 

removal order becomes final is critical for the purposes of 

timely petitioning for judicial review,” because a “‘petition 

for review must be filed no later than thirty days after the 

date of the final order of removal.’” Id. (quoting 8 U.S.C. 

§ 1252(b)(1)). So, if we had concluded the reinstated 

removal order was final upon reinstatement, then the thirtyday deadline for review would have expired long before 

“any yet-to-be-issued IJ decisions denying Ortiz relief or 

finding that he lacks a reasonable fear of persecution.” Id. 

And depriving Ortiz of the opportunity for judicial review 

“could raise serious constitutional concerns” as “the 

Suspension Clause ‘unquestionably’ requires some judicial 

intervention in deportation cases.’” Id. (quoting Lolong v. 

Gonzales, 484 F.3d 1173, 1177 (9th Cir. 2007) (en banc)). 

Accordingly, we held that a reinstated order of removal order 

becomes final only after reasonable fear proceedings have 

concluded. Id. 

2.

In the decade following Ortiz-Alfaro, each of our sister 

circuits that reviewed these petitions likewise considered 

reinstated orders of removal as final upon the completion of 

reasonable fear proceedings. See, e.g., Garcia v. Sessions, 

856 F.3d 27, 35 (1st Cir. 2017); Garcia-Villeda v. Mukasey, 

531 F.3d 141, 144 (2d Cir. 2008); Bonilla v. Sessions, 891 
18 ALONSO-JUAREZ V. GARLAND

F.3d 87, 90 n.4 (3d Cir. 2018); Tomas-Ramos v. Garland, 24 

F.4th 973, 980 n.3 (4th Cir. 2022); Ponce-Osorio v. Johnson, 

824 F.3d 502, 506 (5th Cir. 2016); Garcia v. Barr, 946 F.3d 

371, 375–76 (7th Cir. 2019); Lara-Nieto v. Barr, 945 F.3d 

1054, 1058 (8th Cir. 2019); Luna-Garcia v. Holder, 777 F.3d 

1182, 1185 (10th Cir. 2015); Jimenez-Morales v. U.S. Atty 

Gen., 821 F.3d 1307, 1308 (11th Cir. 2016); see also Zaya 

v. Garland, No. 20-3815, 2021 WL 4452422, at *1 (6th Cir. 

Sept. 29, 2021). And the government long embraced that 

position, conceding that a reinstated removal order cannot be 

executed until reasonable fear proceedings are completed. 

This consensus continued until the Second Circuit recently 

decided to unilaterally depart from it despite the petitioner’s 

and the government’s insistence that the court had 

jurisdiction.4 Bhaktibhai-Patel, 32 F.4th at 187; see id. at 

191, 195 (impliedly overruling Garcia-Villeda, 531 F.3d at 

150, to the extent it suggested that reinstated orders of 

removal are final upon the completion of reasonable fear 

proceedings).

To date, the Second, Third, and Fifth Circuits have

interpreted the Supreme Court’s reasoning in Nasrallah and

Guzman Chavez as precluding judicial review of a petition 

of review that is filed within thirty days of the completion of 

reasonable fear proceedings, but more than thirty days from 

when the order of removal is reinstated. See Farooq v. Att’y 

Gen. United States, No. 20-2950, 2023 WL 1813597, at 

*2−3 (3d Cir. Feb. 8, 2023); Argueta-Hernandez v. Garland, 

4 Bhaktibhai-Patel and all other decisions from courts of appeal

regarding the timeliness of petitions for review like Alonso’s were issued 

under the assumption that 8 U.S.C. § 1252(b)(1) was a jurisdictional rule. 

But because our holding in Ortiz-Alfaro regarding the thirty-day deadline 

was not dependent on 8 U.S.C. § 1252(b)(1) being a jurisdictional rule, 

it does not change our analysis. 
ALONSO-JUAREZ V. GARLAND 19

73 F.4th 300, 303 (5th Cir. 2023) (overruling Ponce-Osorio, 

824 F.3d at 506). The Tenth Circuit, on the other hand, held 

that neither “Nasrallah [n]or Guzman Chavez clearly 

overruled Luna-Garcia,” its prior decision holding the same 

as we did in Ortiz-Alfaro. Arostegui-Maldonado v. Garland, 

75 F.4th 1132 (10th Cir. 2023). Similarly, the Sixth Circuit 

has also held that its circuit precedent treating orders 

denying withholding of removal as final orders of removal 

for judicial review was not “clearly irreconcilable” with 

Nasrallah and Guzman Chavez. Kolov v. Garland, No. 22-

3670, 2023 WL 5319751, at *3 (Aug. 18, 2023). We agree 

with the Sixth and Tenth Circuits. 

At first glance, there appears to be some tension between 

our holding in Ortiz-Alfaro and the Supreme Court’s 

holdings in Nasrallah and Guzman Chavez. But a closer 

inspection of the holdings in each case reveals the 

government cannot meet the high “clearly irreconcilable”

standard established in Miller, and Ortiz-Alfaro can be 

reconciled with these Supreme Court cases. See Fed. Trade 

Comm’n v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th 

Cir. 2019) (explaining that “mere tension between cases 

does not meet the high standard of irreconcilable conflict”). 

So, Ortiz-Alfaro continues to provide the correct rule for 

when a reinstated order becomes final under 8 U.S.C. 

§ 1252(b)(1). 

i.

In Nasrallah, the Supreme Court addressed only “the 

narrow question [of] whether, in a case involving a 

noncitizen who committed a crime specified in 

§ 1252(a)(2)(C), the court of appeals should review the 

noncitizen’s factual challenges to the CAT order (i) not at all 

or (ii) deferentially.” 140 S. Ct. at 1688. Nasrallah did not 
20 ALONSO-JUAREZ V. GARLAND

address the question presented here—the point at which a 

reinstated removal order becomes final for purposes of 

calculating the time to petition for review. In fact, Nasrallah

did not involve reinstated removal orders or reasonable fear 

proceedings at all. 

There, the government sought to remove the petitioner 

after he pled guilty to receiving stolen property, which is a 

removable crime under 8 U.S.C. § 1227(a)(2)(A)(i). Id. The 

IJ ordered Nasrallah removed but granted CAT relief. Id. 

On appeal, the BIA vacated the grant of CAT relief. Id. The 

Eleventh Circuit declined to review Nasrallah’s factual 

challenges to the CAT order because Nasrallah was

convicted of a crime under 8 U.S.C. § 1227(a)(2)(A)(i), and 

8 U.S.C. § 1252(a)(2)(C) precludes judicial review of factual 

challenges to a “final order of removal” for noncitizens 

convicted of such crimes. Id. at 1689. 

The Supreme Court expressed concern with the 

government’s position that § 1252(a)(2)(C) precludes 

judicial review of a noncitizen’s factual challenges to a CAT 

order. Id. at 1692. So, the Court proceeded to conclude that 

CAT orders “are not the same as final orders of removal.” 

Id. at 1691. But the Court clarified that its conclusion that

“[t]he CAT order . . . does not merge into the final order of 

removal” was “for purposes of §§ 1252(a)(2)(C)–(D)’s 

limitation on the scope of judicial review.” Id. at 1692 

(emphasis added). In other words, the Supreme Court’s 

conclusion was limited to answering the narrow question 

before it regarding judicial review of removal orders from 

noncitizens convicted of crimes listed in § 1252(a)(2)(C). 

And the Court reached this conclusion largely to avoid 

precluding judicial review where Congress had not explicitly 

precluded such review. Id. at 1692 (“It would be easy 

enough for Congress to preclude judicial review of factual 
ALONSO-JUAREZ V. GARLAND 21

challenges to CAT orders . . . [,] [b]ut Congress has not done 

so, and it is not the proper role of the courts to rewrite the 

laws passed by Congress and signed by the President.”). 

Nasrallah and Ortiz-Alfaro can thus be neatly 

reconciled. Nasrallah was focused on a narrow question that 

did not encompass reasonable fear regulations or reinstated 

orders of removal, both of which are essential to the issue 

before us. And Nasrallah’s CAT removal order was subject 

to BIA review, unlike Alonso’s reinstated removal order, 

whose finality is unclear under 8 U.S.C. § 1101(a)(47) 

because there is no BIA review for an IJ’s negative 

reasonable fear determination. 8 C.F.R. § 1208.31(g)(1). 

Cases that do not “squarely address” an issue do not bind us. 

United States v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 

2022) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 

(1993)). Moreover, at its core, Nasrallah stands for the 

principle that judicial review should not be precluded unless 

Congress explicitly precludes such review. See 140 S. Ct. at 

1692. The same principle underlies our opinion in OrtizAlfaro. Applying Nasrallah as the Second Circuit did—to 

preclude judicial review where Congress has not explicitly 

done so—perverts that well-established principle. 

ii.

The Supreme Court likewise did not squarely address the 

issue presented here in Guzman Chavez. And the Court’s

holding in Guzman Chavez is even more easily

distinguishable from Ortiz-Alfaro than is Nasrallah. 

Though Guzman Chavez involved reinstated removal orders,

the Court there was concerned only with when an order 

becomes final for purposes of detention—not for purposes 

of judicial review. Guzman Chavez, 141 S. Ct. at 2280. We 

have previously held that when an order becomes final for 
22 ALONSO-JUAREZ V. GARLAND

purposes of detention and when it becomes final for 

purposes of judicial review are two separate inquiries. See

Padilla-Ramirez v. Bible, 882 F.3d 826, 836 (9th Cir. 2017) 

(“Our own decision[] in Ortiz-Alfaro . . . which addressed 

finality for judicial-review purposes and turned principally 

on avoiding a construction that would severely inhibit or 

eliminate that review, [is] not controlling in the detention 

context.”).

In Guzman Chavez, the respondents were noncitizens

detained after their prior removal orders were reinstated. 

141 S. Ct. at 2283. Each respondent expressed a fear of 

returning to their home country, so the government placed 

each respondent in reasonable fear proceedings. Id. In each 

case, the asylum officer determined the respondent had a 

reasonable fear of persecution or torture and referred the 

respondent to an immigration judge for withholding-only 

proceedings. Id. The respondents sought release on bond 

while their withholding-only proceedings were pending. Id. 

The government opposed release, maintaining that the 

respondents were not entitled to bond hearings because they 

were detained under 8 U.S.C. § 1231, not § 1226. Id. 

Arguing that § 1226 governed their detention, the 

respondents filed petitions for writs of habeas corpus and 

sought an injunction. Id. The district court and the Fourth 

Circuit agreed with the respondents. 

The Supreme Court granted certiorari to resolve a circuit 

split on the following question: which detention provision 

applies to noncitizens who are subject to reinstated orders of 

removal and who are detained while in withholding-only 

proceedings. Id. at 2280. In addressing one of the 

respondents’ arguments, the Supreme Court relied on 

language in Nasrallah stating that “the validity of removal 

orders is not affected by the grant of withholding-only relief” 
ALONSO-JUAREZ V. GARLAND 23

and therefore that a grant of withholding “does not render 

non-final an otherwise ‘administratively final’ reinstated 

order of removal.” Id. at 2288. Viewed in isolation, this 

language appears to contradict our reasoning in Ortiz-Alfaro. 

Indeed, this language appears to indicate that the finality of 

a removal order is not impacted by an IJ’s grant of 

withholding of removal. But the Supreme Court explicitly 

clarified that its Guzman Chavez holding “express[ed] no 

view on whether the lower courts are correct in their 

interpretation of § 1252, which uses different language than 

§ 1231 and relates to judicial review of removal orders rather 

than detention.” Id. at 2285 n.6. Section 1252 is the only 

relevant section at issue here, and Guzman Chavez explicitly 

left it unaffected. 

Not only did the Supreme Court cabin its holding in 

Guzman Chavez to the finality of a removal order for 

purposes of detention, as opposed to judicial review, but in 

resolving the circuit split on that issue, the Supreme Court 

sided with our precedent. Id. at 2284. In Padilla-Ramirez, 

we held that a noncitizen in reasonable fear proceedings is 

subject to detention under § 1231 because the reinstated 

order is final for detention purposes. We explained that such 

a holding was fully consistent with our holding in OrtizAlfaro that the same reinstated order is not final for judicial 

review while reasonable fear proceedings are pending. 

Padilla-Ramirez, 882 F.3d at 833–34. The Padilla-Ramirez

petitioner, like the Guzman Chavez respondents, was subject 

to a reinstated removal order and was detained while 

awaiting withholding-only proceedings after an asylum 

officer determined Padilla-Ramirez had stated a reasonable 

fear. Id. at 829. Padilla-Ramirez argued that he was 

detained pursuant to § 1226, rather than § 1231, and was 

therefore entitled to bond hearings. Id. In making this 
24 ALONSO-JUAREZ V. GARLAND

argument, Padilla-Ramirez relied on Ortiz-Alfaro to argue 

his removal order was not final while his reasonable fear 

proceedings were still pending. Id. at 833. 

In rejecting his argument, we noted: “At first blush, 

Ortiz-Alfaro appears to support Padilla-Ramirez’s position. 

But the case is readily distinguishable because its holding 

rested on the canon of constitutional avoidance.” Id. We 

recognized that Ortiz-Alfaro addressed the finality of 

reinstated orders for purpose of judicial review and was 

decided “in large part to preserve the petitioners’ ability to 

obtain such review.” Id. at 834. And we concluded that our 

decision in Ortiz-Alfaro “was not controlling in the detention 

context” because Congress had explicitly immunized 

reinstated orders from judicial review in that context. Id. at 

836 (citing 8 U.S.C. § 1231(a)(5)). 

Padilla-Ramirez thus demonstrates how Ortiz-Alfaro

and Guzman Chavez can co-exist. Guzman Chavez—which,

like Padilla-Ramirez, was limited to the detention context—

is not controlling in the judicial review context, and therefore 

does not undermine our holding in Ortiz-Alfaro. In sum, 

because Nasrallah and Guzman Chavez can be applied 

consistently with our holding in Ortiz-Alfaro, we continue to 

adhere to that holding. See Consumer Def., 926 F.3d at

1214.

3.

We also decline to adopt the Second Circuit’s

interpretation in Bhaktibhai-Patel because doing so would 

raise grave constitutional concerns. 

It is well-established that “the Due Process Clause 

applies to all ‘persons’ within the United States, including 

[noncitizens], whether their presence here is lawful, 
ALONSO-JUAREZ V. GARLAND 25

unlawful, temporary, or permanent.” Zadvydas v. Davis, 

533 U.S. 678, 693 (2001) (citing a line of Supreme Court 

cases reflecting this principle spanning from 1886 to the 

present). The Supreme Court has long recognized that 

“though deportation is not technically a criminal proceeding, 

it visits a great hardship on the individual and . . . is a 

penalty—at times a most serious one.” Bridges v. Wixon, 

326 U.S. 135, 154 (1945) (cleaned up). For this reason, 

embedded in the Due Process Clause is the guarantee that 

“immigration proceedings meet basic standards of 

procedural fairness.” Montes-Lopez v. Holder, 694 F.3d 

1085, 1088–89 (9th Cir. 2012).

We have previously determined whether the regulations 

governing the reasonable fear proceedings violate due 

process. See e.g., Alvarado-Herrera, 993 F.3d at 1192–95. 

Part of our consideration in holding that these regulations 

comport with due process was the fact that “[a] non-citizen 

who receives an adverse determination from the asylum 

officer is entitled to seek de novo review of that 

determination before an immigration judge, and an adverse 

decision by the immigration judge is subject to an additional 

layer of review in the court of appeals.” Id. at 1195 

(emphasis added). We concluded that this additional layer 

of review “reduce[s] the risk that meritorious claims will be 

erroneously rejected at the screening stage.” Id.; see also 

Orozco-Lopez v. Garland, 11 F.4th 764, 778 (9th Cir. 2021) 

(concluding that the limited role of counsel in reasonable 

fear proceedings was proper, in part because “if the IJ 

affirms the asylum officer’s negative fear determination, a 

non-citizen can seek review by a circuit court of appeals 

where she . . . can be represented by a lawyer”). 

At risk today is that additional layer of review. Indeed, 

in Bhaktibhai-Patel, the Second Circuit acknowledged that 
26 ALONSO-JUAREZ V. GARLAND

its holding “forecloses judicial review of agency decisions 

in [reasonable fear] proceedings in some cases.” 32 F.4th at 

187–88. As Alonso notes, this holding “effectively cuts off 

judicial review for all noncitizens in reasonable fear 

proceedings, because they will almost never receive a final 

adjudication of their fear claims within 30 days of the date 

their removal orders are reinstated.” This is precisely the 

problem we sought to avoid in Ortiz-Alfaro.

5 

Seemingly recognizing the gravity of the wholesale 

elimination of judicial review of virtually all withholdingonly decisions in Bhaktibhai-Patel, the government initially 

suggested a workaround to the Second Circuit’s holding. 

Prior to asserting that it had forfeited its argument that 

Alonso’s petition was untimely, the government proposed

that we adopt only the reasoning of Bhaktibhai-Patel but 

then determine that petitioners may timely file petitions 

5 The Second Circuit contends that our concern that the Suspension 

Clause requires some judicial intervention in deportation cases is no 

longer valid because “the Supreme Court . . . has recently confirmed that 

the Suspension Clause applies only when [a noncitizen] ‘contest[s] the 

lawfulness of [his] restraint’ and ‘seek[s] release.’” Bhaktibhai-Patel, 

32 F.4th at 196 (citing DHS v. Thuraissigiam, 140 S. Ct. 1959, 1969–70 

(2020)). We disagree. The Supreme Court has not overruled its “strong 

presumption in favor of judicial review of administrative action.” I.N.S. 

v. St. Cyr, 533 U.S. 289, 298 (2001); see also Rauda v. Jennings, 55 F.4th 

773, 780 (9th Cir. 2022) (analyzing Thuraissigiam and recognizing a 

limit to judicial review for that petitioner because, unlike here, the 

petitioner had access to review of his petition and Congress had provided 

a clear statement in favor of limiting judicial review of his particular 

challenge). And the Supreme Court in Nasrallah embraced this 

presumption when it refused to preclude judicial review of factual 

challenges to CAT orders where Congress had not expressly foreclosed 

such review. 140 S. Ct. at 1692. Our Suspension Clause concerns are

just as pronounced today as they were when we decided Ortiz-Alfaro, 

and nothing in Thuraissigiam alters them.
ALONSO-JUAREZ V. GARLAND 27

within thirty days of the reinstatement order even when their 

reasonable fear proceedings had not yet concluded. The 

government contended that the timely petition for review 

would “ripen” by the time this court reviews the petition on 

the merits. 

But the government’s proposal is unworkable. Amici’s 

points on this regard are well taken. Indeed, the 

government’s proposed practice would be immensely 

resource intensive. It would lead to an increase in filings, as 

petitioners would inevitably have to file a petition for review 

to preserve the possibility of judicial review, even when 

unsure if they would need to, or even choose to, challenge 

the decision in the future. This would require our court to 

dedicate resources to tracking and closing moot or 

abandoned petitions. We would need to establish a system 

of holding petitions for review in abeyance for years at a time 

and require parties to inform our court of the progress of its 

administrative proceedings. This system would be 

particularly unfair to pro se noncitizens, who make up the 

majority of noncitizens in removal proceedings.6 These pro 

se litigants, who often face language and education barriers, 

would be forced to navigate a confusing system set up to 

require appeals of decisions not yet made and pay a hefty

filing fee that they likely cannot afford, effectively ensuring

that they miss their chance at review. 

6 See Ingrid Eagly, Esq. and Steven Shafer, Esq., Access to Counsel in 

Immigration Court, American Immigration Council, 2 (2016), 

https://www.americanimmigrationcouncil.org/sites/default/files/researc

h/access_to_counsel_in_immigration_court.pdf

[https://perma.cc/777W-KEQU] (noting “only 37 percent of all 

immigrants secured legal representation in their removal cases”).
28 ALONSO-JUAREZ V. GARLAND

The government’s proposal also places too much 

discretion in the government’s own hands. Indeed, the 

government caveats its proposal by noting that it reserves 

“the right to object” to a noncitizen’s request to hold an 

initial petition for review in abeyance to allow later 

reasonable fear proceedings to conclude. And the 

government noncommittally notes that “it does not 

anticipate that it will oppose [these] timely requests.” The 

government’s weak assurances do little to mitigate the 

constitutional concerns at issue. Especially since the 

government makes no further mention of its proposal in its 

second supplemental brief. 

Regardless, the government’s proposed complex scheme 

of filing premature petitions for review would only be 

necessary if the statutes at issue dictated that petitions must 

be filed within thirty days of entry of the reinstatement order. 

But as explained above, they do not. And it is well 

established that even “when a statutory provision is 

reasonably susceptible to divergent interpretation, we adopt 

the reading that accords with traditional understandings and 

basic principles: that executive determinations generally are 

subject to judicial review.” Guerrero-Lasprilla v. Barr, 140 

S. Ct. 1062, 1069 (2020) (quoting Kucana v. Holder, 558 

U.S. 233, 251 (2010) (cleaned up)). The Supreme Court 

“consistently applie[s]” the presumption of reviewability to 

immigration statutes. Guerrero-Lasprilla, 140 S. Ct. at 1069 

(quoting Kucana, 558 U.S. at 251). 

Although “it would be easy enough for Congress to 

preclude judicial review” of determinations from reasonable 

fear proceedings, Nasrallah, 140 S. Ct. at 1692, Congress 

has not provided any indication that it wishes to do so here, 

where the BIA does not have jurisdiction to review negative 

reasonable fear determinations. Precluding judicial review 
ALONSO-JUAREZ V. GARLAND 29

would increase the risk that petitioners’ meritorious claims 

will be erroneously rejected.7 And “it is not the proper role 

of the courts to rewrite the laws passed by Congress and 

signed by the President.” Id. We will therefore not deny 

petitioners access to judicial review, when Congress has not 

expressly instructed us to do so. 

IV.

We next address Alonso’s contention that the reasonable 

fear screening regulations, 8 C.F.R. §§ 208.31, 1208.31, are 

inconsistent with the statutory scheme for determining 

eligibility for withholding of removal. 

Specifically, Alonso contends that because withholding 

of removal is a mandatory form of relief that requires a “trier 

of fact” to make credibility determinations, 8 U.S.C. 

§ 1231(b)(3)(C), the reasonable fear regulations, 8 C.F.R. 

§§ 208.31, 1208.31, curtail that right by requiring a prescreening process for noncitizens in reasonable fear

proceedings. Alonso does not challenge the lawfulness of 

the screening interview with respect to CAT relief. 

To determine whether a regulation is inconsistent with a 

statutory scheme, we apply the two-step framework 

established in Chevron, U.S.A. Inc. v. National Resources 

7 As Amici point out, asylum officers, IJs, and the BIA frequently make 

substantive and procedural errors in assessing claims in reasonable fear 

proceedings. See e.g., Zuniga v. Barr, 946 F.3d 464, 471 (9th Cir. 2019) 

(per curiam) (determining that the petitioner was deprived of right to 

counsel). Review in the courts of appeal is thus essential to the proper, 

constitutional functioning of this system.
30 ALONSO-JUAREZ V. GARLAND

Defense Council, Inc., 467 U.S. 837 (1984).8 At step one, 

we consider “whether Congress has directly spoken to the 

precise question at issue.” Id. at 842. If the intent of 

Congress is clear, we give effect to that intent. Id. If the 

statute is “silent or ambiguous” with respect to the question 

at issue, we ask, at step two, whether the agency’s regulation 

“is based on a permissible construction of the statute.” Id. at 

843. 

In Alvarado-Herrera, we applied Chevron and held that 

the reasonable fear screening process is statutorily 

authorized with respect to both statutory withholding of 

removal and CAT relief. See 993 F.3d at 1192–95. Alonso 

attempts to distinguish his arguments from those raised by 

the petitioner in Alvarado-Herrera. He contends that we 

have not previously considered the language of two statutory 

provisions. 

Cases are “not precedential for propositions not 

considered.” United States v. Pepe, 895 F.3d 679, 688 (9th 

Cir. 2018). Thus, “if a prior case does not raise or consider 

the implications of a legal argument, it does not constrain 

our analysis.” Kirilyuk, 29 F.4th at 1134 (citation and 

internal quotation marks omitted). But Alonso’s arguments 

with respect to the two statutory provisions he flags—the 

mandatory language of § 1231(b)(3)(A) and the “trier of 

8 Although the future of the Chevron doctrine is uncertain, see Loper 

Bright Enters. v. Raimondo, No. 22-451, 2023 WL 3158352, at *1 (U.S. 

May 1, 2023) (granting certiorari on “[w]hether the Court should 

overrule Chevron or . . . at least clarify that statutory silence concerning 

controversial powers expressly but narrowly granted elsewhere in the 

statute does not constitute an ambiguity requiring deference to the 

agency”), the doctrine remains good law for now.
ALONSO-JUAREZ V. GARLAND 31

fact” language in § 1231(b)(3)(C)—do not support a 

departure from our holding in Alvarado-Herrera.

First, Alonso points to the broad language of 8 U.S.C. 

§ 1231(b)(3)(A), which provides: “Notwithstanding 

paragraphs (1) and (2), the Attorney General may not 

remove a[] [noncitizen] to a country if the Attorney General 

decides that the [noncitizen]’s life or freedom would be 

threatened in that country because of the [noncitizen]’s race, 

religion, nationality, membership in a particular social 

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). 

Alonso argues that had Congress intended to limit some 

noncitizens’ ability to apply for withholding of removal by 

requiring a screening process with an asylum officer, it 

would have done so explicitly, as it has with credible fear 

determinations for noncitizens subject to expedited removal. 

Cf. id. § 1225(b). 

Second, Alonso relies on the language of 8 U.S.C. 

§ 1231(b)(3)(C), which provides: 

In determining whether a[] [noncitizen] has 

demonstrated that the [noncitizen]’s life or 

freedom would be threatened for a reason 

described in subparagraph (A), the trier of 

fact shall determine whether the noncitizen

has sustained the noncitizen’s burden of 

proof, and shall make credibility 

determinations, in the manner described in 

clauses (ii) and (iii) of section 1158(b)(1)(B) 

of this title. 

Id. § 1231(b)(3)(C). Clause (ii) of § 1158(b)(1)(B) provides 

that noncitizens may, under certain conditions, carry their 

burden of proof with testimony alone. Clause (iii) describes 
32 ALONSO-JUAREZ V. GARLAND

permissible grounds for credibility determinations. See id. 

§§ 1158(b)(1)(B)(ii), (iii). Alonso argues that the reference 

to a “trier of fact” in § 1231(b)(3)(C) reflects Congress’s 

intent to allow noncitizens to apply directly to an IJ for 

withholding of removal, without first undergoing a 

screening interview by an asylum officer. 

These arguments are unpersuasive. In AlvaradoHerrera, we concluded that “the most that can be said at step 

one of the Chevron analysis is that § 1231(a)(5),” the statute 

authorizing reinstatement, is “‘silent or ambiguous’ as to 

whether all non-citizens are entitled to a hearing before an 

immigration judge on claims for withholding of removal and 

protection under CAT.” 993 F.3d at 1193 (quoting Chevron, 

467 U.S. at 843). We reasoned that the sweeping language 

in § 1231(a)(5) suggests “no need for any hearings before an 

immigration judge,” even though courts have held that “noncitizens in [reasonable fear] proceedings are eligible for 

withholding of removal under § 1231(b)(3)(A), 

notwithstanding the language of § 1231(a)(5).” Id. (citing 

Fernandez-Vargas, 548 U.S. at 35 n.4, and Andrade-Garcia, 

828 F.3d at 831–32) (emphasis removed). Thus, the 

language of § 1231(b)(3)(A) does not undermine our 

decision in Alvarado-Herrera, because we considered that 

precise language in reaching our holding. Cf. Pepe, 895 F.3d 

at 688.

Nor does the “trier of fact” language in § 1231(b)(3)(C) 

undermine Alvarado-Herrera. Alonso contends that the 

language suggests that noncitizens are entitled to present 

their claim for withholding of removal to an IJ rather than an 

asylum officer. But even if we were to suppose that 

Congress did intend the term “trier of fact” to refer to an IJ 

and not an asylum officer, the reasonable fear regulations 

provide for de novo determination by an IJ of the merits of 
ALONSO-JUAREZ V. GARLAND 33

all noncitizens’ withholding-only claims. If noncitizens 

receive a negative reasonable fear determination, they are 

entitled to a de novo review of that determination by an IJ. 

8 C.F.R. §§ 208.31(g), 1208.31(g); see Bartolome, 904 F.3d 

at 812. And if noncitizens receive a positive reasonable fear 

determination by an asylum officer, they are entitled to fullfledged withholding-only proceedings before an IJ. 8 C.F.R. 

§§ 208.31(e), 1208.31(e). The regulations therefore 

comport with Congress’s requirement that petitioners have 

their credibility determination reviewed by a “trier of fact.” 

Alonso’s arguments do not undermine our analysis in 

Alvarado-Herrera. We follow Alvarado-Herrera and hold 

that the reasonable fear screening process is consistent with 

the statutory provisions.

V.

In sum, we conclude that the thirty-day deadline 

provision is a non-jurisdictional rule, and that Ortiz-Alfaro

remains valid precedent, so the thirty-day deadline 

commences upon the conclusion of reasonable fear 

proceedings. Alonso’s petition for review was therefore 

timely. On the merits, we deny Alonso’s petition for review. 

PETITION DENIED.