Chambers v. Garland ( 2022 )

20-1019
Chambers v. Garland
BIA
Poczter, IJ
A087 548 195
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 8th day of July, 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 ANDREW ST AUBYN CHAMBERS, AKA
14 ANDREW CHAMBERS, AKA ANDREW
15 CHAMBE,
16 Petitioner,
17
18 v. 20-1019
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Craig Relles, Esq., White Plains,
26 NY.
27
28 FOR RESPONDENT: Jeffrey Bossert Clark, Assistant
29 Attorney General; Shelley R. Goad,
30 Assistant Director; Tim Ramnitz,
31 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DISMISSED for lack of jurisdiction.
8 Petitioner Andrew St. Aubyn Chambers, a native and
9 citizen of Jamaica, seeks review of a February 25, 2020
10 decision of the BIA affirming a June 28, 2018 decision of an
11 Immigration Judge (“IJ”), which denied withholding of removal
12 and relief under the Convention Against Torture (“CAT”). In
13 re Andrew St Aubyn Chambers, No. A 087 548 195 (B.I.A. Feb.
14 25, 2020), aff’g No. A 087 548 195 (Immigr. Ct. N.Y.C. Jun.
15 28, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have jurisdiction to review petitions for review filed
18 within 30 days of a “final order of removal.” 8 U.S.C.
19 § 1252(a)(1), (b)(1). We lack jurisdiction here because the
20 2020 BIA decision—the only decision from which the petition
21 would be timely—is a decision in a “withholding-only”
22 proceeding that does not constitute a final order of removal.
23 See Bhaktibhai-Patel v. Garland, 32 F.4th 180, 191 (2d Cir.
24 2022) (“Any decision an immigration judge makes during
2
1 withholding-only proceedings is . . . not itself a final
2 order of removal and does not merge into an alien’s final
3 order of removal.” (internal quotation marks and alteration
4 omitted)).
5 Chambers was ordered removed in November 2010 but
6 reentered the United States without permission. Certified
7 Administrative Record (“CAR”) at 551. The Department of
8 Homeland Security reinstated his removal order in May 2014.
9 CAR at 548; see 8 U.S.C. § 1231(a)(5). Chambers expressed a
10 fear of returning to Jamaica and was referred to an IJ for
11 withholding-only proceedings. CAR at 519–20; see 8 C.F.R.
12 § 208.31. An IJ denied Chambers’s application for
13 withholding of removal and CAT relief, and the BIA affirmed
14 that decision in February 2020. CAR at 3–4, 40–45. Chambers
15 petitioned for review on March 20, 2020.
16 We have held that “[d]ecisions made during withholding-
17 only proceedings cannot qualify as orders of removal” because
18 decisions regarding eligibility for withholding and CAT
19 relief “do not determine whether the alien is deportable or
20 order deportation.” Bhaktibhai-Patel, 32 F.4th at 190
21 (internal quotation marks and alteration omitted).
22 Accordingly, we have jurisdiction only if Chambers’s petition
23 is otherwise timely to challenge a final order of removal.
3
1 See 8 U.S.C. § 1252(a)(1), (b)(1). However, the only
2 decisions here that constitute reviewable final orders are
3 Chambers’s original 2010 removal order and the 2014 decision
4 reinstating that order. Chambers’s March 2020 petition for
5 review is not timely to challenge either decision. See
6 Bhaktibhai-Patel, 32 F.4th at 191–93; see also 8 U.S.C.
7 § 1252(b)(1) (establishing a 30-day deadline for petition for
8 review); Luna v. Holder, 637 F.3d 85, 92 (2d Cir. 2011)
9 (“Th[e] 30–day filing requirement is jurisdictional and is
10 not subject to equitable tolling.” (internal quotation marks
11 omitted)).
12 For the foregoing reasons, the petition for review is
13 DISMISSED. All pending motions and applications are DENIED
14 and stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
18
4