Davidson v. Garland

19-3742 Davidson v. Garland BIA Conroy, IJ A043 220 267 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 6th day of July, two thousand twenty-two. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 JON O. NEWMAN, 10 GERARD E. LYNCH, 11 Circuit Judges. 12 _____________________________________ 13 14 LIONEL DENZEL DAVIDSON, AKA 15 LEONARD DAVIS, 16 Petitioner, 17 18 v. 19-3742 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Suchita D. Mathur, The Bronx 26 Defenders, Bronx, NY; Sean M. 27 Topping, Norton Rose Fulbright US 28 LLP, New York, NY. 1 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 2 Attorney General; Anthony C. 3 Payne, Assistant Director; Jeffery 4 R. Leist, Senior Litigation 5 Counsel; Abigail E. Leach, Trial 6 Attorney; Office of Immigration 7 Litigation, United States 8 Department of Justice, Washington, 9 DC. 10 UPON DUE CONSIDERATION of this petition for review of a 11 Board of Immigration Appeals (“BIA”) decision, it is hereby 12 ORDERED, ADJUDGED, AND DECREED that the petition for review 13 is DISMISSED. 14 Petitioner Lionel Denzel Davidson, a native and citizen 15 of Jamaica, seeks review of an October 30, 2019, decision of 16 the BIA affirming a May 10, 2019, decision of an Immigration 17 Judge (“IJ”) denying Davidson’s application for withholding 18 of removal and protection under the Convention Against 19 Torture (“CAT”) following his reentry without permission and 20 reinstatement of his 2008 removal order. In re Lionel Denzel 21 Davidson, No. A043 220 267 (B.I.A. Oct. 30, 2019), aff’g No. 22 A043 220 267 (Immig. Ct. N.Y. City May 10, 2019). We assume 23 the parties’ familiarity with the underlying facts and 24 procedural history. 25 Although neither Davidson nor the Government challenges 26 our jurisdiction, “federal courts have an independent 2 1 obligation to ensure that they do not exceed the scope of 2 their jurisdiction, and therefore they must raise and decide 3 jurisdictional questions that the parties either overlook or 4 elect not to press.” Bhaktibhai-Patel v. Garland, 32 F.4th 5 180, 187 (2d Cir. 2022) (quoting Henderson ex rel. Henderson 6 v. Shinseki, 562 U.S. 428, 434 (2011)). Our jurisdiction is 7 limited to review of petitions for review filed within 30 8 days of a “final order of removal.” 8 U.S.C. § 1252(a)(1), 9 (b)(1). 10 We lack jurisdiction here. Davidson’s November 2019 11 petition for review is not timely from his 2008 removal order 12 or the Department of Homeland Security’s September 2018 13 reinstatement of that order. See 8 U.S.C. § 1252(b)(1); 14 Bhaktibhai-Patel, 32 F.4th at 190–91; see also Luna v. Holder, 15 637 F.3d 85, 92 (2d Cir. 2011) (“Th[e] 30–day filing 16 requirement is jurisdictional and is not subject to equitable 17 tolling.” (quotation marks omitted)). The BIA’s October 2019 18 decision affirming the IJ’s denial of relief in withholding- 19 only proceedings does not constitute a final order of removal 20 because it does “not determine whether the alien is deportable 21 or order[] deportation,” or “affect the validity of any 3 1 determination regarding an alien’s deportability or 2 deportation.” Bhaktibhai-Patel, 32 F.4th at 190 (quotation 3 marks omitted). Accordingly, there is no timely petition 4 challenging a “final order of removal.” 8 U.S.C. 5 § 1252(a)(1), (b)(1). 6 For the foregoing reasons, the petition for review is 7 DISMISSED. All pending motions and applications are DENIED 8 and stays VACATED. 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court 12 4