Jose Alonso-Juarez v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE LUIS ALONSO-JUAREZ, No. 15-72821

Petitioner, Agency No.
A072-709-355
v.

MERRICK B. GARLAND, Attorney OPINION
General,

Respondent.

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 non-
jurisdictional 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 thirty-
day 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 non-
jurisdictional 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 Alvarado-
Herrera, 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 two-
fold: (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 Andrade-
Garcia [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 thirty-
day 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 thirty-
day 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. Santos-
Zacaria, 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 non-
jurisdictional 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 non-
jurisdictional 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 thirty-
day 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 Ortiz-
Alfaro. 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 Ortiz-
Alfaro 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 withholding-
only 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 pre-
screening 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 Alvarado-
Herrera, 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 “non-
citizens 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 full-
fledged 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.