Thompson v. Garland ( 2023 )

20-3895
Thompson v. Garland
BIA
Sponzo, IJ
A035 786 569
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 4th day of January, two thousand twenty-
5 three.
6
7 PRESENT:
8 GUIDO CALABRESI,
9 ROBERT D. SACK,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 DION CONROY THOMPSON,
15 Petitioner,
16
17 v. 20-3895
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Craig Relles, Esq., Law Office of
25 Craig Relles, White Plains, NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Sabatino F. Leo,
1 Assistant Director; Corey L.
2 Farrell, Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DISMISSED.
10 Petitioner Dion Conroy Thompson, a native and citizen of
11 Jamaica, seeks review of a November 3, 2020 decision of the
12 BIA reversing a November 27, 2019 decision of an Immigration
13 Judge (“IJ”) granting his application for protection under
14 the Convention Against Torture (“CAT”). In re Dion Conroy
15 Thompson, No. A035 786 569 (B.I.A. Nov. 3, 2020), aff’g No.
16 A035 786 569 (Immigr. Ct. N.Y.C. Nov. 27, 2019). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history.
19 We “have an independent obligation to ensure that [we]
20 do not exceed the scope of [our] jurisdiction, and therefore
21 [we] must raise and decide jurisdictional questions that the
22 parties either overlook or elect not to press.” Bhaktibhai-
23 Patel v. Garland, 32 F.4th 180, 187 (2d Cir. 2022). Our
24 jurisdiction is limited to petitions for review filed within
2
1 30 days of “final order[s] of removal.” 8 U.S.C.
2 § 1252(a)(1), (b)(1). We lack jurisdiction over Thompson’s
3 petition because the 2020 BIA decision — the only decision as
4 to which the petition would be timely — is a decision in
5 withholding-only proceedings that does not constitute a final
6 order of removal. See Bhaktibhai-Patel, 32 F.4th at 190–91.
7 The BIA’s decision denying CAT protection following the
8 reinstatement of Thompson’s prior removal order is not itself
9 an order of removal because it does not “determine whether
10 [Thompson] is deportable,” “order deportation,” or “affect
11 the validity of any determination regarding [Thompson’s]
12 deportability or deportation.” Id. at 190 (internal
13 quotation marks omitted); see also Parchment v. Garland, No.
14 19-3238, 2022 WL 1320315, at *1 (2d Cir. May 3, 2022).
15 Thompson’s October 2020 petition is untimely as to his
16 removal order because it was not filed within 30 days of his
17 1995 deportation order or the Department of Homeland
18 Security’s 2018 reinstatement of that order. Bhaktibhai-
19 Patel, 32 F.4th at 190–95; see also 8 U.S.C. § 1252(b)(1)
20 (30-day deadline for petition for review); Luna v. Holder,
21 637 F.3d 85, 92 (2d Cir. 2011) (“Th[e] 30–day filing
3
1 requirement is jurisdictional and is not subject to equitable
2 tolling.” (internal quotation marks omitted)).
3 For the foregoing reasons, the petition for review is
4 DISMISSED. All pending motions and applications are DENIED
5 and stays VACATED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
4