F. J. A. P. v. Merrick B. Garland

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2284
F.J.A.P.,
Petitioner,

v.

MERRICK GARLAND, Attorney
General of the United States,
Respondent.
____________________

Petition for Review of a Decision of the
Board of Immigration Appeals.
No. A000-000-000
____________________

ARGUED SEPTEMBER 7, 2023 — DECIDED FEBRUARY 27, 2024
____________________

Before BRENNAN, ST. EVE, and JACKSON-AKIWUMI, Circuit
Judges.
ST. EVE, Circuit Judge. Thirteen years ago, F.J.A.P.1 was re-
moved from the United States. Upon his return to El Salvador,

1 We refer to the petitioner with an initialed pseudonym to protect his

identity. See Doe v. Gonzales, 484 F.3d 445, 446 (7th Cir. 2007).
2 No. 21-2284

he endured months of petty extortion by the gang MS-13.
Then that extortion escalated. The gang demanded $2,000 by
the next day or they would kill F.J.A.P. and his family. F.J.A.P.
fled—first to a relative’s home nearby and then back to the
United States. It was not long before U.S. officials discovered
his presence and reinstated his original removal order.
F.J.A.P. then applied for withholding-only relief under the
Convention Against Torture, which an immigration judge
granted. The Board of Immigration Appeals reversed, and
F.J.A.P. petitions for review. Today we address whether a
court of appeals can review F.J.A.P.’s claim for relief.
I. Background2
F.J.A.P. first entered the United States from El Salvador in
2000. After he pleaded guilty to a misdemeanor and later vio-
lated parole, the Department of Homeland Security (“DHS”)
removed him to El Salvador in 2010.
F.J.A.P. remained in El Salvador for four years. While
there, he lived with his father in the village of Las Trancas and
drove to Universidad Gerardo Barrios in Usulutan to attend
college classes. He also worked as a taxi driver to earn extra
money.
Eventually, MS-13 began extorting F.J.A.P. for money
while he drove back and forth between Las Trancas and
Usulutan. To avoid trouble, he complied with their demands

2 Because several cases pending before this circuit present the same

jurisdictional issue, we circulated this opinion under Circuit Rule 40(e)
among all active circuit judges. A majority of judges did not wish to rehear
the case en banc. Chief Judge Sykes and Judges Easterbrook, Brennan, and
Kirsch voted in favor of rehearing en banc. Judge Kolar did not participate
in consideration of the rehearing question.
No. 21-2284 3

for $20 a week. Then the trouble intensified. Two members of
the gang came to F.J.A.P.’s home, handed him a cell phone,
and told him someone wanted to speak with him. When
F.J.A.P. took the phone, the person on the line claimed to be
in prison and demanded $2,000 by the following day or the
gang would “kill you all.”
F.J.A.P. reported the demand and threat to the police in a
formal complaint and then went into hiding. He lived with a
relative thirty minutes away from Las Trancas, never leaving
the house, until returning to the United States.
Not long after he arrived for the second time in the United
States, F.J.A.P.’s cousin called to tell him that MS-13 was
“looking for both of [them].” Then, in 2015, F.J.A.P. learned
that the gang had murdered that same cousin in front of his
pregnant wife. F.J.A.P. believes his cousin was murdered be-
cause he refused to divulge F.J.A.P.’s location.
Eventually, law enforcement again detained F.J.A.P., and
DHS reinstated his order of removal on January 22, 2020. Af-
ter he expressed fear for his life if he returned to El Salvador,
F.J.A.P. was placed in withholding-only proceedings. At the
initial level of review, an asylum officer found that F.J.A.P.
did not have a reasonable fear of persecution or torture.
The immigration judge disagreed, determining that
F.J.A.P. had a credible claim he would be tortured if DHS re-
turned him to El Salvador. In granting F.J.A.P.’s application
for withholding under the Convention Against Torture
(CAT), the immigration judge reasoned that his testimony
was credible for its consistency and corroboration.
The immigration judge based his decision to grant CAT
relief on the following facts: F.J.A.P. had been called by a
4 No. 21-2284

seemingly high-ranking member of MS-13, F.J.A.P.’s life was
threatened, and the gang’s demand was high—$2,000. The
opinion further relied on a 2019 Human Rights Report de-
scribing the violence and brutality of MS-13, its control of the
country and the roadways, and the government corruption in
El Salvador, making it unlikely that F.J.A.P. could avoid the
gang if he returned to the country. The immigration judge
also credited the fact that F.J.A.P. had reported the extortion
to the police and then fled, finding it likely that MS-13 would
retaliate against this behavior. In light of these facts, the im-
migration judge granted CAT relief on July 7, 2020.
The government appealed this decision to the Board of Im-
migration Appeals (“Board”). The Board reversed the immi-
gration judge’s decision to grant CAT relief in a brief, two-
page order, finding that the immigration judge’s decision was
“based on assumptions and a series of hypotheticals.” It
stated that the judge’s determination that F.J.A.P. was likely
to be tortured or killed was an unsupported prediction. Spe-
cifically, the Board found three clearly erroneous “hypothet-
ical suppositions.” First, the Board dismissed any finding re-
lated to the phone call F.J.A.P. received demanding $2,000,
reasoning that the record contained no evidence that the caller
actually was a high-ranking gang member. Second, the Board
concluded that there was insufficient evidence that the gang
had any interest in harming F.J.A.P. And third, the Board dis-
counted any personal threat F.J.A.P. might face because the
2019 Human Rights Report established only general corrup-
tion throughout El Salvador.
On this basis, the Board vacated the immigration judge’s
order granting relief and ordered F.J.A.P. removed to El Sal-
vador on June 14, 2021. F.J.A.P. petitioned the Seventh Circuit
No. 21-2284 5

to review that decision on July 13, 2021. We issued a stay on
his removal until the resolution of that petition. While await-
ing a decision on this petition, F.J.A.P. requested that the
Board reopen proceedings due to ineffective assistance of
counsel. The Board denied that request and F.J.A.P. has sepa-
rately petitioned this court for review of that denial.
II. Analysis
F.J.A.P. challenges the Board’s reversal of CAT relief. He
argues that the Board misapplied clear error review and
lacked substantial evidence to support reversal.
In response, the government initially argued that we lack
jurisdiction because F.J.A.P.’s petition was untimely, coming
more than 30 days after the reinstatement of his removal or-
der. The government has since withdrawn that argument,
conceding that § 1252(b)(1)’s 30-day filing deadline began to
run at the conclusion of agency withholding proceedings.
In supplemental briefing shortly before oral argument, the
government also argued for the first time that § 1252(b)(1) is a
mandatory claims-processing rule, not a jurisdictional rule.
Stone v. INS explained that the predecessor statute to
§ 1252(b)(1) was jurisdictional. 514 U.S. 386, 405 (1995). Rely-
ing on Stone, our circuit precedent similarly holds that
§ 1252(b)(1)’s filing deadline is jurisdictional. Sankarapillai v.
Ashcroft, 330 F.3d 1004, 1005 (7th Cir. 2003); see also Chavarria-
Reyes v. Lynch, 845 F.3d 275, 277 (7th Cir. 2016). We are aware
that the Supreme Court’s recent decision in Santos-Zacaria v.
Garland called the jurisdictionality of § 1252(b)(1) into ques-
tion, but it did not directly overrule Stone. 143 S. Ct. 1103, 1113
(2023) (finding that § 1252(d)(1)’s exhaustion requirement is
nonjurisdictional). The government’s argument has merit. See
6 No. 21-2284

Alonso-Juarez v. Garland, 80 F.4th 1039, 1046–47 (9th Cir. 2023)
(holding that § 1252(b)(1) is a nonjurisdictional claims-pro-
cessing rule); Argueta-Hernandez v. Garland, 87 F.4th 698, 705
(5th Cir. 2023) (same); see also Martinez v. Garland, 86 F.4th 561,
574 (4th Cir. 2023) (Floyd, J., concurring in the judgment) (not-
ing that Santos-Zacaria “strongly suggests” the 30-day dead-
line is a claims-processing rule). But see Salgado v. Garland,
69 F.4th 179, 181 & n.1 (4th Cir. 2023) (holding that § 1252’s
filing deadline is jurisdictional); see also Kolov v. Garland,
78 F.4th 911, 917 & n.4 (6th Cir. 2023) (citing Stone for the
proposition that the filing deadline is “mandatory and juris-
dictional” and declining to consider whether Santos-Zacaria
has called that holding into question). But until Stone is over-
turned by the Court itself, we must continue to apply it. Agos-
tini v. Felton, 521 U.S. 203, 237 (1997).
With that, we must independently assure ourselves of our
jurisdiction, which we review de novo. Villa v. Barr, 924 F.3d
370, 372 (7th Cir. 2019).
A. Jurisdiction
Under 8 U.S.C. § 1252(a)(1), we have jurisdiction to review
“final order[s] of removal.” When a reinstated order of re-
moval becomes “final” is crucial because, under 8 U.S.C.
§ 1252(b)(1), a “petition for review must be filed not later than
30 days after the date of the final order of removal.”
F.J.A.P. filed his petition with this court on July 13, 2021,
29 days after the agency concluded withholding proceedings
on June 14, 2021, but almost a year and a half after his order
of removal was reinstated in January 2020. So, if a reinstated
order of removal becomes final on the day issued, regardless
of placement in withholding proceedings, F.J.A.P. filed too
No. 21-2284 7

late. But if a reinstated order of removal becomes final for pur-
poses of judicial review under § 1252 only after the conclusion
of withholding proceedings, as both parties now agree,
F.J.A.P. timely filed his petition for review.
1. Relevant Statutory and Regulatory Scheme
Before we can determine when the 30-day filing deadline
expired in F.J.A.P.’s case, we must review the relevant statu-
tory and regulatory provisions implicated in his petition.
a. Statutory History
Congress passed the Immigration and Nationality Act
(“INA”) in 1952 and repeatedly amended it in the decades
that followed. Four acts shaped the specific law governing
F.J.A.P.’s case, including two significant overhauls to the INA
in 1996: the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) and the Illegal Immigration Reform and Immi-
grant Responsibility Act (“IIRIRA”). AEDPA streamlined the
process for removing noncitizens convicted of certain crimes,
referred to as the criminal alien bar. 8 U.S.C. § 1252(a)(2)(C).
At the same time, AEDPA defined “order of deportation” as
an agency decision “concluding that the alien is deportable or
ordering deportation.” Id. § 1101(a)(47)(A). That definition ex-
plains that orders of deportation “become final upon the ear-
lier of—(i) a determination by the Board of Immigration Ap-
peals affirming such order; or (ii) the expiration of the period
in which the alien is permitted to seek review of such order
by the Board of Immigration Appeals.” § 1101(a)(47)(B).
IIRIRA changed “deportation” and its variants to “re-
moval” throughout the INA, see, e.g., § 1252(a), although
AEDPA’s definition in § 1101(a)(47) retained the original “de-
portation” language. See Kolov, 78 F.4th at 923–24 (Murphy, J.,
8 No. 21-2284

concurring). IIRIRA also streamlined the reinstatement pro-
cess for removing noncitizens already subject to orders of re-
moval who later reenter the country illegally. 8 U.S.C.
§ 1231(a)(5). Once DHS determines that a noncitizen has reen-
tered the country illegally, the prior order is reinstated and is
“not subject to being reopened or reviewed.” Id. Finally,
IIRIRA established direct review of a “final order of removal”
by a court of appeals, id. § 1252(a)–(b), and added a “zipper
clause,” unifying into one petition all challenges “arising from
any action taken or proceeding brought to remove an alien.”
Id. § 1252(b)(9). The Supreme Court recently explained that
these changes expedited judicial review “[b]y consolidating
the issues arising from a final order of removal, eliminating
review in the district courts, and supplying direct review in
the courts of appeals.” Nasrallah v. Barr, 140 S. Ct. 1683, 1690
(2020).
Two years after IIRIRA, the Foreign Affairs Reform and
Restructuring Act of 1998 (“FARRA”) implemented Article III
of the international Convention Against Torture. See id. As a
signatory, the United States agreed not to remove a noncitizen
to a particular country where that noncitizen demonstrates a
likelihood of torture in that country. The resulting decision
not to remove is referred to as CAT relief. FARRA imple-
mented that treaty obligation by “provid[ing] for judicial re-
view of CAT claims ‘as part of the review of a final order of
removal pursuant to section 242 of the [INA] (8 U.S.C. 1252).’”
Id. (quoting 112 Stat. 2681–822, note following § 1231).
Then, in 2005, the REAL ID Act further codified protec-
tions for those noncitizens who might face torture if returned
to a particular country. It added a specific provision that “a
petition for review filed with an appropriate court of appeals
No. 21-2284 9

in accordance with this section shall be the sole and exclusive
means for judicial review of any cause or claim under the
United Nations Convention Against Torture.” 8 U.S.C.
§ 1252(a)(4); see also Nasrallah, 140 S. Ct. at 1693 (“[A]s a result
of the 2005 REAL ID Act, § 1252(a)(4) now provides for direct
review of CAT orders in the courts of appeals.”).
b. Statutory and Regulatory Impact on Proceedings
Read together, these four Acts prioritize efficient removal
on the one hand and judicial review on the other. This case
highlights the tension between those two priorities.
IIRIRA’s streamlining effect extends to any noncitizen
who, like F.J.A.P., has previously been ordered removed and
subsequently reenters the United States without permission.
§ 1231(a)(5). As part of that streamline, the noncitizen cannot
appeal within the agency, Torres-Tristan v. Holder, 656 F.3d
653, 655 & n.1 (7th Cir. 2011) (citing § 1231(a)(5)), or apply for
asylum, Cruz-Martinez v. Sessions, 885 F.3d 460, 463 (7th Cir.
2018). Judicial review of a reinstated order is limited to (1)
whether a prior order of removal exists, (2) whether the
noncitizen is the person previously ordered removed, and (3)
whether the noncitizen reentered the U.S. without permis-
sion. Villa, 924 F.3d at 373 (citing 8 C.F.R. § 241.8).
Despite limited review of reinstated removal orders, the
INA and FARRA ensure access to withholding-only relief if
the noncitizen fears persecution or torture. The INA’s imple-
menting regulation, 8 C.F.R. § 1208.31, outlines procedures
for relief for “any alien … whose … removal order is rein-
stated under [8 U.S.C. § 1231(a)(5)] who, in the course of the
… reinstatement process, expresses a fear of returning to the
country of removal.” There are two paths to withholding-only
10 No. 21-2284

relief: reasonable fear of persecution,3 and reasonable fear of
torture (or CAT relief).
For their part, the implementing regulations ensure that
when a noncitizen is ordered removed, if he expresses fear of
returning to the country of removal, he is referred to an asy-
lum officer for a reasonable fear screening interview. 8 C.F.R.
§ 1208.31(c)–(d). If the asylum officer finds a reasonable fear,
she refers the noncitizen to an immigration judge for with-
holding-only review, which is then reviewable by the Board.
Id. § 1208.31(e). If, however, the asylum officer finds no rea-
sonable fear, she still refers the noncitizen to an immigration
judge for reevaluation of reasonable fear. Id. § 1208.31(f). If
the immigration judge agrees with the asylum officer, that de-
cision concludes agency review of the noncitizen’s fear. Id.
§ 1208.31(g). But if the immigration judge disagrees and finds
a reasonable fear, the noncitizen will proceed to withholding
proceedings, reviewable by the Board. Id.
The REAL ID Act in turn makes these decisions reviewa-
ble by a court of appeals. § 1252(a)(4). Indeed, the Supreme
Court recently confirmed the availability of judicial review of
the agency’s CAT determinations in Nasrallah. 140 S. Ct. at
1690.

3 Withholding due to fear of persecution, or statutory withholding,

focuses on persecution due to certain protected characteristics. See
§ 1231(b)(3)(A); 8 C.F.R. § 1208.31(c). Courts often refer to both statutory
withholding and CAT relief generally as withholding-only relief. See Bhak-
tibhai-Patel v. Garland, 32 F.4th 180, 184 n.3 (2d Cir. 2022). Because F.J.A.P.
only petitions for review of the agency’s CAT determination, this opinion
uses either CAT or withholding to describe the proceedings.
No. 21-2284 11

Coming full circle, IIRIRA’s zipper clause streamlines ju-
dicial review of agency determinations regarding removal or-
ders and relief. 8 U.S.C. § 1252(b)(9). Recall, however, that re-
instated orders of removal receive only minimal review, Villa,
924 F.3d at 373, and that a petitioner must file a petition for
review with the court of appeals “not later than 30 days after
the date of the final order of removal,” § 1252(b)(1).
2. Seventh Circuit Precedent
We have previously exercised jurisdiction over petitions
from the reinstatement of a removal order under § 1252, hold-
ing that a reinstatement order is an “order of removal.” See
Villa, 924 F.3d at 373 (citing Torres-Tristan, 656 F.3d at 656).
And along with the limited review of reinstatement orders de-
scribed above, we have reviewed associated withholding-
only orders. See Cruz-Martinez, 885 F.3d at 463; Almutairi v.
Holder, 722 F.3d 996, 1002 (7th Cir. 2013). Until now, we have
concluded, with minimal explanation, that § 1252(b)(1)’s 30-
day deadline ran from the conclusion of agency withholding
proceedings. See, e.g., Garcia-Arce v. Barr, 946 F.3d 371 (7th Cir.
2019) (exercising jurisdiction when the petition was filed
within 30 days of the Board’s withholding-only order, but
more than 30 days after reinstatement of the removal order).
Until recently, every other circuit agreed with that view. See
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 F.3d 87, 90 n.4 (3d Cir. 2018); Tomas-Ramos v. Garland, 24
F.4th 973, 980 n.3 (4th Cir. 2022); Luna-Garcia de Garcia v. Barr,
921 F.3d 559, 565 & n.4 (5th Cir. 2019); Martinez v. Larose, 968
F.3d 555, 563 (6th Cir. 2020); Lara-Nieto v. Barr, 945 F.3d 1054,
1058 (8th Cir. 2019); Ortiz-Alfaro v. Holder, 694 F.3d 955, 958
(9th Cir. 2012); Luna-Garcia v. Holder, 777 F.3d 1182, 1186 (10th
12 No. 21-2284

Cir. 2015); Jimenez-Morales v. Att’y Gen., 821 F.3d 1307, 1308
(11th Cir. 2016).
3. Circuit Split
Two recent Supreme Court decisions, Nasrallah v. Barr, 140
S. Ct. 1683 (2020), and Johnson v. Guzman Chavez, 141 S. Ct.
2271 (2021), have caused some circuits to reconsider whether
they have jurisdiction to review CAT orders for removal rein-
statements where the petition for review is filed more than 30
days after the reinstatement of the removal order. Nasrallah
narrowed “final orders of removal” for purposes of the crim-
inal alien bar in § 1252(a)(2)(C), holding that a noncitizen sub-
ject to removal under this statute can still petition for review
of withholding proceedings even though he cannot challenge
the factual basis of his final order of removal. 140 S. Ct. at 1691.
One year later, in Guzman Chavez, the Court held that removal
orders are “administratively final” for purposes of pre-re-
moval detention even if withholding proceedings are ongo-
ing. 141 S. Ct. at 2285.
Relying on these decisions, the Second and Fourth Circuits
have broken from their precedent to hold that § 1252(b)(1)’s
30-day statute of limitations begins to run upon reinstatement
of a removal order, regardless of whether DHS subsequently
places the noncitizen in withholding proceedings. See Bhak-
tibhai-Patel v. Garland, 32 F.4th 180 (2d Cir. 2022); Martinez v.
Garland, 86 F.4th 561 (4th Cir. 2023).4

4 In two cases before the Second Circuit, the panel has ordered briefing

on whether Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023), calls into ques-
tion the Second Circuit’s holding in Bhaktibhai-Patel, 32 F.4th at 190–91. See
Order at 2, Cerrato-Barahona v. Garland, No. 22-6349 (2d Cir. July 12, 2023);
Order at 2, Castejon-Paz v. Garland, No. 22-6024 (2d Cir. July 12, 2023).
No. 21-2284 13

The Second Circuit concluded that “[d]ecisions made dur-
ing withholding-only proceedings cannot qualify as orders of
removal” and withholding orders are therefore not final or-
ders of removal for purposes of § 1252(b)(1). Bhaktibhai-Patel,
32 F.4th at 190–91. Instead, “a reinstatement decision becomes
final once the agency’s review process is complete,” at which
time the 30-day filing window begins to run. Id. at 192–93.
Though noting that AEDPA’s definition of when an order of
deportation becomes final in § 1101(a)(47)(B) “does not
squarely apply” to reinstatement decisions, the panel never-
theless concluded that the intent behind the definition was to
“tie[] finality to the final stage of agency review” and meant
the same thing as “administratively final” in § 1231(a)(1)(B)
and defined in Guzman Chavez. Id. at 192–94.
The Fourth Circuit relied upon circuit precedent to reach
the same conclusion. The circuit had previously considered
§ 1101(a)(47)(B) to mean that orders not subject to agency re-
view, such as reinstated orders of removal, become “final or-
ders” for purposes of judicial review at the last available stage
of agency review. Martinez, 86 F.4th at 568 (citing Tomas-Ra-
mos v. Garland, 24 F.4th 973, 980 n.3 (4th Cir. 2022)). The court
went on to conclude that Guzman Chavez v. Hott, 940 F.3d 867,
881 (4th Cir. 2019), rev’d on other grounds sub nom. Johnson v.
Guzman Chavez, 141 S. Ct. at 2271, which held that § 1231 and
§ 1252(b)(1) finality are equivalent, dictated that § 1252(b)(1)
finality, like § 1231 finality, “also cannot depend on withhold-
ing-only proceedings.” Martinez, 86 F.4th at 569.
In contrast, the Fifth, Sixth, Ninth, and Tenth Circuits have
recently held that reinstated orders of removal become final
for purposes of judicial review upon the conclusion of CAT
proceedings. Argueta-Hernandez, 87 F.4th at 705–06; Kolov, 78
14 No. 21-2284

F.4th at 919; Alonso-Juarez, 80 F.4th at 1056; Arostegui-Maldo-
nado v. Garland, 75 F.4th 1132 (10th Cir. 2023).5 The Fifth Cir-
cuit reasoned that a contrary conclusion would force nonciti-
zens to file premature petitions and “have disastrous conse-
quences on the immigration and judicial systems.” Argueta-
Hernandez, 87 F.4th at 706.6 Each panel distinguished Guzman
Chavez’s definition of final based on context: finality for pur-
poses of detention is not finality for purposes of judicial re-
view. Id.; Kolov, 78 F.4th at 919; Alonso-Juarez, 80 F.4th at 1050;
Arostegui-Maldonado, 75 F.4th at 1143. The Supreme Court it-
self explicitly identified this distinction and limited its inter-
pretation of administrative finality to § 1231. Guzman Chavez,
141 S. Ct. at 2285 n.6. Both the Ninth and Tenth Circuits also
pointed out that Nasrallah preserved CAT review. Alonso-Jua-
rez, 80 F.4th at 1050 (“[T]he Court reached this conclusion
largely to avoid precluding judicial review where Congress
had not explicitly precluded such review.”); Arostegui-

5 The Third Circuit, in two unpublished opinions, has concluded both

that § 1252(b)(1)’s filing deadline runs from the date the removal order is
final even when withholding-only proceedings are pending, Farooq v. Att’y
Gen., No. 20-2950, 2023 WL 1813597 (3d Cir. Feb. 8, 2023), and that the fil-
ing deadline begins to run only when withholding-only proceedings are
final, if applicable, Duenas v. Att’y. Gen., No. 22-3024, 2023 WL 6442601 (3d
Cir. Oct. 3, 2023).
6 Earlier in 2023, the Fifth Circuit held that § 1252(b)(1)’s 30-day filing

deadline begins to run upon reinstatement of a removal order, regardless
of whether DHS subsequently places the noncitizen in withholding pro-
ceedings. Argueta-Hernandez v. Garland, 73 F.4th 300 (5th Cir. 2023), with-
drawn and superseded on reh’g, 87 F.4th 698 (5th Cir. 2023). A few months
later, the same Fifth Circuit panel withdrew the first opinion and replaced
it with a new one, this time holding that the 30 days begins to run at the
conclusion of withholding proceedings.
No. 21-2284 15

Maldonado, 75 F.4th at 1142–43. Ultimately, each of these cir-
cuits found that their own circuit precedent preserved judicial
review and neither Nasrallah nor Guzman Chavez clearly inval-
idated that precedent. Argueta-Hernandez, 87 F.4th at 706; Ko-
lov, 78 F.4th at 919; Alonso-Juarez, 80 F.4th at 1050–51; Aro-
stegui-Maldonado, 75 F.4th at 1143.
4. Statutory Analysis
Because of this circuit split, we ask whether Nasrallah and
Guzman Chavez define “final” for purposes of judicial review
in § 1252(b)(1). Concluding that they do not, we turn to the
text of § 1252 for guidance on the meaning of finality to deter-
mine if we should reassess our existing precedent, which
holds that the 30-day deadline runs from the completion of
withholding-only proceedings.
a. Supreme Court Decisions
Nasrallah preserved withholding-only review for nonciti-
zens subject to removal under the criminal alien bar by nar-
rowing the meaning of “final orders of removal” under
§ 1252(a)(2)(C). Generally, the criminal alien bar prevents
noncitizens who have committed certain crimes from obtain-
ing judicial review of factual challenges to their “final orders
of removal” (although they may still bring constitutional and
legal challenges to those orders). Nasrallah, 140 S. Ct. at 1687–
88. Nasrallah addressed whether this bar also restricts factual
challenges to agency decisions regarding CAT relief. The Su-
preme Court held that it did not, reasoning that the statute
precluded factual challenges to “final order[s] of removal,”
but “[a] CAT order is not itself a final order of removal be-
cause it is not an order ‘concluding that the alien is deportable
or ordering deportation.’” Nasrallah, 140 S. Ct. at 1691
16 No. 21-2284

(quoting § 1101(a)(47)(A)). The Court further held that for
purposes of this statutory bar, “final orders of removal en-
compass only the rulings made by the immigration judge or
Board of Immigration Appeals that affect the validity of the
final order of removal.” Id. DHS’s determinations in CAT pro-
ceedings do not impact the validity of the final order of re-
moval, so those determinations “do[] not merge into the final
order of removal for purposes of §§ 1252(a)(2)(C)–(D)’s limi-
tation on the scope of judicial review.” Id. at 1692.
Because Congress did not explicitly foreclose judicial re-
view of CAT orders, the Court would not interpret the statute
to do so implicitly. Id. In fact, Nasrallah very clearly grounds
its division between orders of removal and CAT orders on
Congress’s explicit intent in § 1252(a)(4) that CAT orders be
subject to judicial review. 140 S. Ct. at 1693. Nasrallah even
warned lower courts against interpreting its decision as limit-
ing judicial review of withholding relief. Id. (“In short, our de-
cision does not affect the authority of the courts of appeals to
review CAT orders.”). And by pointing out Congress’s intent
that CAT claims be “part of the review of a final order of re-
moval,” id. at 1690 (quoting 112 Stat. 2681–822), Nasrallah con-
templates that CAT review be one component of the review of
a final order of removal, even if the order of removal itself is
distinct, leaving open the possibility that, when that compo-
nent is incomplete, the entire order is not final for purposes of
judicial review.
In Guzman Chavez, the Supreme Court held that, for
noncitizens in withholding proceedings, like F.J.A.P., a rein-
statement order becomes “administratively final” immedi-
ately upon reinstatement. 141 S. Ct. at 2285. Specifically, the
Court found that noncitizens, subject to reinstatement but
No. 21-2284 17

awaiting withholding-only decisions, had been “ordered re-
moved” within the meaning of 8 U.S.C. § 1231 and therefore
could be detained. Id. at 2284–85. For purposes of that deten-
tion, the removal period begins when a reinstatement order
becomes administratively final for two reasons. First, Con-
gress explicitly used “administratively final” in the text of the
statute. § 1231(a)(1)(B). “By using the word ‘administra-
tively,’” the Court explained, “Congress focused our attention
on the agency’s review proceedings, separate and apart from
any judicial review proceedings that may occur in a court.”
Guzman Chavez, 141 S. Ct. at 2284.
Second, Guzman Chavez further emphasized that pending
decisions in noncitizens’ withholding proceedings do not
make their removal orders any less “administratively final.”
Id. at 2285. In other words, reasonable fear proceedings do not
impact the validity of the underlying removal order. Those
proceedings may dictate “where an alien may be removed. It
says nothing, however, about the antecedent question whether
an alien is to be removed.” Id. at 2286. It is that antecedent
question—not the details of removal—that makes an order
“administratively final” and justifies detention.
The definition of administrative finality for purposes of
§ 1231 cannot be imported into the definition of final in
§ 1252(b)(1), for several reasons. Guzman Chavez dealt with de-
tention of immigrants under § 1231 and 8 U.S.C. § 1226, not
judicial review in § 1252. In fact, the Supreme Court specifi-
cally noted that its decision in Guzman Chavez did not take a
position on the correct interpretation of “final[ity]” under
§ 1252. 141 S. Ct. at 2285 n.6 (declining to interpret “final order
of removal” as used in § 1252(b)(1) because it “uses different
language than § 1231 and relates to judicial review of removal
18 No. 21-2284

orders rather than detention”).7 Importing the meaning of
“administratively final” into § 1252(b)(1) ignores the context
of the Supreme Court’s ruling in Guzman Chavez and dis-
misses Congress’s explicit language.
The Court itself highlighted contextual differences by ex-
plicitly limiting its holding to the context of detention, distin-
guishing it from the use of “final order of removal” in
§ 1252(b)(1). It insisted on expressing no view regarding the
meaning of that phrase in § 1252 for two textual reasons: First,
the language of the two provisions is different; § 1231 uses
“administratively final,” while § 1252 uses “final order of re-
moval.” And second, § 1252 “relates to judicial review of re-
moval orders rather than detention.” Guzman Chavez, 141 S.
Ct. at 2285 n.6.
The difference in language used by Congress is significant.
Equating finality in § 1231 with § 1252(b)(1) renders “admin-
istratively” superfluous. See City of Chicago v. Barr, 961 F.3d
882, 898–99 (7th Cir. 2020) (“It is a cardinal principle of statu-
tory construction that a statute ought, upon the whole, to be
so construed that, if it can be prevented, no clause, sentence,
or word shall be superfluous, void, or insignificant.” (cleaned

7 The dissent interprets Guzman Chavez’s footnote 6 to leave unre-

solved only whether a reinstated order of removal is a final order of re-
moval for purposes of judicial review. See infra at 17–20. But the Court’s
citation to Guzman Chavez’s brief includes page 26, which exclusively ar-
gues that reinstated orders of removal become final upon the completion
of withholding proceedings and cites circuit court decisions holding just
that. 141 S. Ct. at 2285 n.6 (citing Resp. Br. at 24–26 & n.8). If the Court
were not leaving open the question of when a reinstatement order be-
comes final for purposes of judicial review under § 1252, there would be
no need to cite page 26 of Guzman Chavez’s brief.
No. 21-2284 19

up) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001))). This
principle guides Guzman Chavez’s rejection of definitional
similarity between § 1252 and § 1231 and it also guides us.
The Court’s opinion in Guzman Chavez made clear the role
the word “administratively” played in § 1231: “By using the
word ‘administratively,’ Congress focused our attention on
the agency’s review proceedings, separate and apart from any
judicial review proceedings that may occur in a court.” Guz-
man Chavez, 141 S. Ct. at 2284. In other words, for the purpose
of § 1231, the Court contrasted administrative finality—being
finished with agency review—with ordinary finality—being
finished with judicial review. See also Final, Black’s Law Dic-
tionary (11th ed. 2019) (defining final as “not requiring any
further judicial action by the court that rendered judgment to
determine the matter litigated”). But importing that definition
of finality into § 1252 would put petitioners in an impossible
bind when seeking judicial review because § 1252 prohibits
judicial review of an order of removal until it is “final.”
§ 1252(a)(1). So concluding that § 1252’s “final” is controlled
by § 1231’s definitions of “administratively final” and “final”
creates a paradox. Under § 1252 an order is not reviewable in
court until it is “final,” but under § 1231 an order is not “final”
until it has been reviewed in court. In context, allowing Guz-
man Chavez to control our interpretation of finality in § 1252
leads to incoherent results.
For these reasons, we find that neither Nasrallah nor Guz-
man Chavez dictate that reinstated orders of removal become
final for purposes of § 1252(b)(1) judicial review at reinstate-
ment.
20 No. 21-2284

b. Statutory Text
Our precedent treats reinstated orders of removal as final
orders of removal for purposes of judicial review under
§ 1252(a) and (b). See Villa, 924 F.3d at 373; Lemos v. Holder, 636
F.3d 365, 366 (7th Cir. 2011) (citing Gomez-Chavez v. Perryman,
308 F.3d 796, 801 (7th Cir. 2002)).
Even before Nasrallah, this circuit held that CAT orders are
separate from orders of removal and therefore cannot them-
selves be considered final orders of removal. Wanjiru v. Holder,
705 F.3d 258, 264 (7th Cir. 2013) (distinguishing between “fi-
nal orders of removal” for purposes of the criminal alien bar
and finality for purposes of judicial review in § 1252(a) and
(b)). Nasrallah later confirmed this position. 140 S. Ct. at 1691.
Furthermore, we have previously held that a petition filed
within 30 days of the completion of withholding proceedings
is timely. Eke v. Mukasey, 512 F.3d 372, 377–78 (7th Cir. 2008).
To assure ourselves that we have jurisdiction, we revisit that
holding.
When Congress provides an explicit definition of a statu-
tory term, that definition controls. See Tanzin v. Tanvir, 141 S.
Ct. 486, 490 (2020). Yet the INA’s definition of “final” offers
little help when considering a petition from a reinstated order
of removal. Section 1101(a)(47)(B), again, ties finality to re-
view by the Board of Immigration Appeals. This definition
only contemplates orders subject to review by the Board and
is therefore inapposite. Accord Ortiz-Alfaro, 694 F.3d at 958;
Luna-Garcia, 777 F.3d at 1185. Nor does Guzman Chavez’s def-
inition of “final” in § 1231 apply to § 1252(b)(1), as explained
above.
No. 21-2284 21

Because neither § 1101 nor § 1231 determine when a rein-
stated order of removal is final for purposes of judicial review
under § 1252, we take a fresh look at the statute, relying on
common tools of statutory interpretation, including the ordi-
nary understanding of the word, context, and statutory struc-
ture. United States v. Melvin, 948 F.3d 848, 851 (7th Cir. 2020).
In doing so, we keep in mind the “strong presumption favor-
ing judicial review of administrative action.” Salinas v. U.S.
R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021) (quoting Mach Mining,
LLC v. EEOC, 575 U.S. 480, 486 (2015)).
Plain meaning. We interpret statutory language according
to “ordinary, contemporary, common meaning,” unless Con-
gress has explicitly dictated another interpretation. Melvin,
948 F.3d at 852 (quoting Sandifer v. U.S. Steel Corp., 571 U.S.
220, 227 (2014)). The Oxford English Dictionary (2d ed. 1989)
offers two relevant definitions of “final”: 1) “marking the last
stage of a process; leaving nothing to be looked for or expected;
ultimate;” and 2) “putting an end to something …; putting an
end to strife or uncertainty; not to be undone, altered, or re-
voked; conclusive.” (emphasis added). Similarly, the Su-
preme Court recently relied on contemporary popular dic-
tionaries to explain the meaning of “final decision” in the con-
text of judicial review of Social Security Administration deter-
minations, concluding that “the phrase ‘final decision’ clearly
denotes some kind of terminal event.” Smith v. Berryhill, 139
S. Ct. 1765, 1774 & n.8 (2019); see also Waetzig v. Halliburton En-
ergy Servs., Inc., 82 F.4th 918, 923 n.5 (10th Cir. 2023) (compar-
ing the legal definition of “final” with the definition in Web-
ster’s New International Dictionary of the English Language).
In the context of a reinstated order of removal, while the
order itself may be unreviewable and so “ultimate,” a CAT
22 No. 21-2284

order nonetheless alters and provides additional certainty for
that reinstated order. See Ortiz-Alfaro, 694 F.3d at 959. In fact,
although a CAT order does not determine whether a nonciti-
zen can be removed, it does determine where that noncitizen
can be sent. The indeterminacy of where, while CAT proceed-
ings are pending, suggests that the reinstated order might yet
leave something “to be looked for or expected,” subject to
possible alteration. Consequently, the plain meaning of “fi-
nal” points us toward the conclusion that a reinstatement or-
der does not become final for purposes of judicial review until
the agency has also concluded withholding proceedings.
This understanding of finality aligns with our previous
decisions to exercise jurisdiction over a noncitizen’s petition
after the agency concluded withholding proceedings. In Eke,
we held that “the immigration authorities were not finished
with Eke’s case until the [Board]’s final decision” in withhold-
ing proceedings. 512 F.3d at 377–78. The final decision in Eke’s
withholding proceedings reflected that the agency was fin-
ished, at which time we had jurisdiction over the removal and
withholding order. Id.
The plain meaning of “final” also tracks legal understand-
ing. Black’s Law Dictionary defines final as “last; conclusive;
definitive; terminated; completed;” and in reference to legal
actions, “a judgment is ‘final’ if no further judicial action … is
required” (6th ed. 1990). But a reinstatement order does re-
quire further agency action when a noncitizen enters with-
holding proceedings. Although the noncitizen has been deter-
mined deportable, the agency’s work is not completed, and it
may not remove the noncitizen until agency withholding re-
view is complete. See 8 C.F.R. § 1208.5(a) (explaining that a
noncitizen cannot be removed “before a decision is rendered
No. 21-2284 23

on his or her … application”).8 As the Supreme Court made
clear in Nasrallah, the noncitizen “may be removed at any time
to another country where he or she is not likely to be tortured”
after an order granting CAT relief has been issued. 140 S. Ct.
at 1691 (quoting 8 C.F.R. § 1208.17(b)(2)); see also 8 C.F.R.
§ 1208.17(b)(2) (“The immigration judge shall also inform the
alien that removal has been deferred only to the country in
which it has been determined that the alien is likely to be tor-
tured, and that the alien may be removed at any time to an-
other country where he or she is not likely to be tortured.”
(emphasis added)). Even after a reinstated order of removal is
administratively final, the noncitizen placed in withholding
proceedings may not be removed “until the reasonable fear
and withholding of removal proceedings are complete.”
Luna-Garcia, 777 F.3d at 1183. The agency must yet determine
the range of possible locations to which the noncitizen can be
deported—in other words, “further … action” delays finality.
Final agency action for purposes of judicial review must
“‘mark the consummation of the agency’s decisionmaking
process,’ and it must determine ‘rights or obligations’ or oc-
casion ‘legal consequences.’” Id. at 1185 (quoting Bennett v.
Spear, 520 U.S. 154, 178 (1997)). Only when withholding pro-
ceedings are complete have “the rights, obligations, and legal
consequences of the reinstated removal order” been fully es-
tablished. Id.

8 8 C.F.R. § 1208.5(a) uses the term “asylum applications.” 8 C.F.R.

§ 1208.1(a)(1) explains that applications for asylum and withholding relief
are referred to collectively throughout the Regulation as “asylum applica-
tions.”
24 No. 21-2284

Presumption of review. The plain meaning of the statute
comports with the principle of statutory construction that pre-
sumes congressional intent in favor of judicial review. Smith,
139 S. Ct. at 1776 (citing Bowen v. Mich. Acad. of Family Physi-
cians, 476 U.S. 667, 670 (1986)). This strong presumption ap-
plies equally to the reviewability of immigration statutes.
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069–70 (2020) (citing
Kucana v. Holder, 558 U.S. 233, 251 (2010)). The presumption is
not irrebuttable, but that burden of rebuttal is “heavy.” Mach
Mining, LLC, 575 U.S. at 486.
To overcome that burden, the statute’s language or struc-
ture must indicate a clear intent by Congress to foreclose ju-
dicial review. Smith, 139 S. Ct. at 1776–77. Discretionary deci-
sions left to the agency, for example, may not be subject to
judicial review unless a petitioner raises a constitutional claim
or question of law. §§ 1252(a)(2)(B)–(C); see Kucana, 558 U.S. at
248.
Congress, however, explicitly provided for judicial review
of CAT orders. As Nasrallah explained, § 2242(d) of FARRA
granted jurisdiction to review CAT claims along with removal
orders. 140 S. Ct. at 1693. Both the 2005 REAL ID Act and
§ 1252(a)(4) of the INA further solidified courts of appeals’ au-
thority to review CAT orders. Id.
Furthermore, our interpretation honors Congress’s
streamlined process created by IIRIRA and AEDPA. Section
1252(b)(9)’s zipper clause consolidates our review of with-
holding proceedings with our review of final orders of re-
moval; it does not limit that review. Later congressional ac-
tions, particularly the addition of § 1252(a)(4), confirm that
Congress did not intend to foreclose judicial review of CAT
orders. It wanted efficient review.
No. 21-2284 25

Because of these clear indications from Congress, we
choose a reasonable interpretation of § 1252(b)(1) that com-
ports with both the preservation of review and a streamlined
review process. Other interpretive paths violate one or both
of these principles by foreclosing review of CAT orders re-
lated to reinstated removal orders altogether, or by establish-
ing an inefficient process in which petitions must be filed
prematurely.
An interpretation that forecloses review of CAT orders
cannot stand; it directly contradicts the presumption of re-
view, a presumption supported by the language of the INA.
The dissent claims to comply with the presumption of review-
ability because Congress explicitly foreclosed review of rein-
stated orders of removal. See infra at 20. But its interpretation
forecloses review of withholding orders as well, despite the
lack of clear congressional intent to do so. Our decision re-
garding when an order of removal becomes final will deter-
mine what can be reviewed. If a petition for review of a CAT
order associated with a reinstated removal order must be filed
within 30 days of that reinstatement, review of most—if not
all—CAT orders will be foreclosed. See Martinez, 86 F.4th at
574 (Floyd, J., concurring) (noting that “withholding and CAT
proceedings often take months or even years to conclude”).
But Congress has not explicitly foreclosed the review of with-
holding decisions associated with those reinstated orders. In
fact, the Supreme Court has stated that although § 1231(a)(5)
“‘generally foreclose[es] discretionary relief from the terms of
the reinstated order,’” the statute “does not, however, pre-
clude an alien from pursuing withholding-only relief to pre-
vent DHS from executing his removal to the particular coun-
try designated in his reinstated removal order.” Guzman
Chavez, 141 S. Ct. at 2282 (quoting Fernandez-Vargas v.
26 No. 21-2284

Gonzales, 548 U.S. 30, 35 (2006)); see also Fernandez-Vargas, 548
U.S. at 35 n.4.
Inefficient review is similarly incompatible with the ex-
plicit provisions of the INA’s zipper clause, intended to
streamline judicial review. Preserving review of CAT claims
in cases of reinstated removal orders would require nonciti-
zens to file premature and incomplete petitions seeking re-
view of not-yet-complete withholding proceedings in order to
meet § 1252(b)(1)’s 30-day filing deadline. This path does not
just contravene the purpose of the zipper clause; it contradicts
Article III jurisdiction. Principles of justiciability and jurisdic-
tion tell us that unripe claims that may later be mooted are
dismissed. See McDonough v. Smith, 139 S. Ct. 2149, 2158–59
(2019) (noting the possibility of workarounds to filing dead-
lines, including stays and ad hoc abstentions, but declining to
adopt such a requirement because, like previous cases de-
cided by the Court, such a “scheme requiring ‘conscientious
defense attorneys’ to file unripe suits ‘would add to the bur-
den imposed on courts, applicants, and the States, with no
clear advantage to any’” (quoting Panetti v. Quarterman, 551
U.S. 930, 943 (2007))). Congress has not given explicit instruc-
tions contradicting these principles and creating a novel pro-
cedural system of judicial review for petitions from the Board.
Consequently, we choose “another reasonable interpretation”
of § 1252(b)(1), one that consolidates review and “does not
produce these distortions and inefficiencies.” Panetti, 551 U.S.
at 943; see also Argueta-Hernandez, 87 F.4th at 706.
Consolidating orders of removal with CAT orders for
streamlined review is consistent with the approach we have
previously taken when presented with petitions pending the
completion of withholding proceedings. Rather than stay our
No. 21-2284 27

review, we have dismissed those petitions as unripe, instruct-
ing petitioners to file a new petition when all reviewable
agency proceedings are complete. See Order Granting Motion
to Dismiss, Delgado-Arteaga v. Lynch, No. 15-1810 (7th Cir.
Aug. 7, 2015) (granting a motion to dismiss because the peti-
tioner remained in withholding-only proceedings and there-
fore the “removal order is not final for purposes of this court’s
review”). But see Viracacha v. Mukasey, 518 F.3d 511, 513 (7th
Cir. 2008) (finding that ongoing agency proceedings do not
render a removal order nonfinal so long as the ongoing pro-
ceedings are wholly within the discretion of the agency and
thus not reviewable by the court of appeals).
Other circuits have similarly interpreted judicial review
provisions in § 1252 to require a consolidated, streamlined re-
view process, concluding that incomplete agency withhold-
ing proceedings prevent an order of removal from being final
for purposes of judicial review. See Abdisalan v. Holder, 774
F.3d 517, 526 (9th Cir. 2014) (en banc) (holding that in mixed
decisions in which the Board affirms some decisions by the
immigration judge but remands others for further considera-
tion, “no final order of removal exists until all administrative
proceedings have concluded”);9 see also Luna-Garcia, 777 F.3d
at 1186 (collecting cases affirming that “pending applications
for relief render an order of removal nonfinal”); cf. Kouambo v.
Barr, 943 F.3d 205, 214 (4th Cir. 2019) (collecting cases holding
“that when the [Board] remands a case to the [immigration

9 Although premature petitions pending at the time the Ninth Circuit

decided Abdisalan were permitted to automatically ripen upon finality, the
court dismissed any unripe petitions filed after that decision. 774 F.3d at
527.
28 No. 21-2284

judge] for background checks [in the process of granting with-
holding-only relief], its decision is not a final order of removal
for purposes of judicial review” until background checks are
complete).
It would be easy enough for Congress to limit judicial re-
view of CAT orders, just as Congress has limited judicial re-
view of reinstated orders of removal to a narrow set of ques-
tions. But Congress has not done so. Nasrallah, 140 S. Ct. at
1692. Instead, it has preserved access to appellate review
through a streamlined process. Therefore, we adopt the stat-
utory interpretation preserving judicial review of administra-
tive action in the streamlined fashion that the zipper clause
requires. Kucana, 558 U.S. at 237; see also Alonso-Juarez, 80 F.4th
at 1053.10
The Supreme Court’s decision in Santos-Zacaria bolsters
our interpretation. Although Santos-Zacaria dealt with a dif-
ferent provision of the INA, the Court’s failure to even

10 Kucana also counsels against a statutory interpretation that would

“place in executive hands authority to remove cases from the Judiciary’s
domain.” 558 U.S. at 237. If we were to interpret § 1252(b)(1)’s filing dead-
line to begin running at the reinstatement of a removal order, we could
also be giving the agency unilateral power to preclude or at least hinder
judicial review of CAT claims in almost all cases. See Kolov, 78 F.4th at 927–
28 (Murphy, J., concurring). For example, the agency may separate re-
moval decisions from withholding decisions, as it sometimes does, by af-
firming removal on appeal to the Board but remanding to the immigration
judge for another hearing on withholding-related relief. Id. In such a case,
the remand order might amount to a final order of removal for purposes
of § 1252(b)(1) just like a reinstatement decision, despite the ongoing CAT
and withholding proceedings, which almost always take more than 30
days. Id. We hesitate before finding that Congress vested the executive
branch with the authority to shape the scope of our review so drastically.
No. 21-2284 29

mention § 1252(b)(1)’s filing deadline when discussing its ju-
risdiction is suggestive. 143 S. Ct. at 1111–12. There, after DHS
reinstated Santos-Zacaria’s removal order, she filed a petition
for review in the Fifth Circuit more than 30 days after the re-
instatement of that order but within 30 days of the conclusion
of withholding proceedings. Respondent’s Br. at 1–3, Santos-
Zacaria v. Barr, No. 19-60355, (5th Cir. Aug. 29, 2019). When
deciding Santos-Zacaria, the Supreme Court never raised the
issue of jurisdiction as it must if there is a jurisdictional prob-
lem. While the Court’s failure to address this deadline and
when precisely the 30-day filing deadline begins to run is not
dispositive, it does support our conclusion to similarly exer-
cise jurisdiction.
Based on the statutory language, structure, and context of
§ 1252, we conclude that a reinstated order of removal is not
final for purposes of judicial review until the agency has com-
pleted withholding proceedings. Only when those proceed-
ings conclude, if the noncitizen is eligible for that review, has
the agency finalized all mandatory review and “fully deter-
mined” the noncitizen’s fate. Arostegui-Maldonado, 75 F.4th at
1140 (quoting Luna-Garcia, 777 F.3d at 1185). A contrary con-
clusion would contravene the express intent of Congress. Our
own circuit’s precedent is consistent with this interpretation,
having long treated reinstated orders of removal as final once
withholding proceedings are complete. We see no reason to
upset that precedent.
Because F.J.A.P. filed his petition within 30 days of the
completion of his CAT proceedings, we have jurisdiction to
hear his petition and proceed to the merits.
30 No. 21-2284

B. Board of Immigration Appeals Review
F.J.A.P. petitions for review of the determination by the
Board of Immigration Appeals that the immigration judge
erred by granting CAT relief. He argues that the Board mis-
applied the clear error standard by which it reviews determi-
nations of the immigration judge, 8 C.F.R. § 1003.1(d)(3)(i),
and that even if the Board applied the correct standard, it
should be reversed because it lacked substantial evidence.
The Board must review the immigration judge’s factual
findings “only for clear error, not de novo.” Estrada-Martinez v.
Lynch, 809 F.3d 886, 889 (7th Cir. 2015) (citing 8 C.F.R.
§ 1003.1(d)(3)(i) and Matter of Z–Z–O–, 26 I. & N. Dec. 586, 590
(BIA 2015)). Whether the Board properly applied that stand-
ard is a legal question, and we review de novo. Id. at 894.
Clear error review is a “highly deferential” standard.
Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1070 (7th Cir.
2013). The Board may not reweigh evidence; instead, it “must
find that, on balance, the weight of the evidence so strongly
militates against the immigration judge’s finding that the
Board is left with the definite and firm conviction that a mis-
take has been committed.” Estrada-Martinez, 809 F.3d at 894–
95 (cleaned up). To be clearly erroneous, a factfinder’s conclu-
sions must be “‘illogical or implausible’ or lack ‘support in in-
ferences that may be drawn from the facts in the record.’” Id.
at 895 (quoting Anderson v. Bessemer City, 470 U.S. 564, 577
(1985)). When those conclusions are based “on a decision to
credit a witness’s testimony, that finding ‘can virtually never
be clear error’ as long as the testimony is ‘coherent and fa-
cially plausible,’ ‘not internally inconsistent,’ and ‘not contra-
dicted by extrinsic evidence.’” Id. (quoting Anderson, 470 U.S.
at 575).
No. 21-2284 31

We consider three factors to determine when, although
purporting to apply clear error, the Board actually reviews de
novo: “[A] Board decision that does not address the immigra-
tion judgeʹs key factual findings, gives more weight to certain
facts in the record than others, or fails to explain how the im-
migration judge’s alleged errors showed a lack of logic, plau-
sibility, or support in the record suggests the use of a standard
of review less deferential than clear error.” Brito v. Garland, 40
F.4th 548, 553 (7th Cir. 2022) (cleaned up) (citing Soto-Soto v.
Garland, 1 F.4th 655, 659–60 (9th Cir. 2021)).
Acknowledging the proper standard of review, the Board
stated that its conclusion was based on clear error review. But
“merely parroting the proper standard of review does not im-
munize the Board’s decision.” Brito, 40 F.4th at 552. Instead,
we look to the analysis to determine whether any factors exist
that suggest it conducted de novo rather than clear error re-
view.
In this case, each of those risk factors is present. Recall that
the Board reversed the immigration judge’s determination be-
cause it was based on “assumptions and a series of hypothet-
icals,” in three ways: (1) The record did not support the infer-
ence that the man who called F.J.A.P. to demand $2,000 was a
“high-ranking gang member.” (2) There was insufficient evi-
dence that the gang was interested in harming F.J.A.P. be-
cause they had not contacted him since he left El Salvador. (3)
There was insufficient evidence that reporting the extortion to
the police would put F.J.A.P. personally at risk of harm.
Failure to address key factual findings. The Board’s first con-
clusion, that there was no evidence in the record to support
the conclusion that F.J.A.P. was threatened by a high-ranking
gang member, failed to address all factual findings. On its
32 No. 21-2284

own, “a determination that the evidence does not support the
immigration judge’s conclusion does not necessarily establish
that the Board improperly weighed the evidence.” Brito, 40
F.4th at 553. Here, the Board did not just declare an absence
of evidence; it actively ignored the evidence relied upon by
the immigration judge.
Dismissing the immigration judge’s finding that F.J.A.P.
was threatened by a high-ranking gang member, the Board
explained, “Although the applicant points to information
from the Department of State’s country report from 2019 ref-
erencing the smuggling of cell phones into the prisons where
gang members are housed, the record does not contain evi-
dence reflecting that the caller was a high-level gang mem-
ber.” If the country report were the only evidence to support
the immigration judge’s finding, this would certainly be per-
missible clear error review, showing that the immigration
judge had made unsupported inferences. But the immigration
judge credited F.J.A.P.’s consistent and corroborated testi-
mony of his personal experiences. The country report pro-
vides a backdrop to significant testimonial evidence. The rec-
ord reflects that the gang members F.J.A.P. saw daily had
been extorting him for $20 weekly; that two of those same
gang members came to his home with a cell phone; that the
man on the other end of the cell phone purported to be in jail;
that the man on the other end of the phone demanded $2,000
on behalf of the gang; and that they would kill him if he did
not give them the money. This story is completely consistent
with his contemporaneously filed police report, which added
that a gang member was to be sent to collect the money from
F.J.A.P. the day after the threat.
No. 21-2284 33

These facts, bolstered by the State Department report not-
ing that cell phones were smuggled into prisons for use by
gang members, give rise to the immigration judge’s reasona-
ble inference that the person threatening F.J.A.P. had more
power in the gang than those threatening him before. The
Board refused to consider F.J.A.P.’s testimony—one indicator
that this was de novo, rather than clear error, review.
Reweighing the evidence. The Board’s second reason for re-
versing the immigration judge’s conclusion, that there was in-
sufficient evidence that the gang wanted to harm F.J.A.P. spe-
cifically, reweighed evidence indicative of de novo review.
In Estrada-Martinez, we determined that the Board had im-
permissibly reweighed the evidence. Although the Board
“did not dispute the judge’s findings” of previous torture, on-
going fear of torture, and recent threats made to the peti-
tioner, it “discounted these facts” while giving more weight
to others. 809 F.3d at 896. The Board engaged in the same im-
permissible evaluation here, discounting evidence the immi-
gration judge found significant in F.J.A.P.’s case. It opined
that F.J.A.P. “has not had any contact with the gang members
who extorted him since 2014, and there is no indication that
gang members have asked the applicant’s family about him
(even after the gang killed his cousin in 2015 for similarly not
complying with gang demands).” The Board therefore con-
cluded that there was no evidence suggesting the gang was
interested in harming him.
Like in Estrada-Martinez, the Board discounted evidence of
previous threats credited by the immigration judge and cor-
roborated by the contemporaneous police report. But the im-
migration judge clearly thought that evidence significant,
weighing heavily a threat to kill F.J.A.P. specifically, despite
34 No. 21-2284

the passage of time. Unlike in Brito, where fear of torture was
speculative because of the lack of evidence that the gang was
specifically interested in the petitioner or even knew his iden-
tity, 40 F.4th at 552, threats to F.J.A.P. were specific and tar-
geted. All facts that led the immigration judge to credit
F.J.A.P.’s reasonable fear of death upon return to El Salvador
came from F.J.A.P.’s lived experiences—his weekly extortion
and the personal threat at his home, demanding $2,000. Fur-
thermore, like in Estrada-Martinez, the “fear of torture is con-
sistent with the current conditions” in El Salvador. 809 F.3d at
896. The Board reweighed and discounted evidence in
F.J.A.P.’s case instead of properly disputing that evidence
with contrary facts from the record.
Failure to explain the immigration judge’s errors. The Board’s
third critique of the immigration judge’s finding perfunctorily
rejected those findings without explanation. It stated simply
that “there is insufficient record evidence indicating that the
applicant is personally at risk of torture because he reported
the extortion and the death threat to the police in 2014.” The
Board did not explain how the immigration judge’s conclu-
sion that F.J.A.P. would likely be tortured for having “the au-
dacity to file a police report” is illogical, implausible, or lacks
support. The Board did not explain why, in a country where
gangs control much of the government—an assertion which
was supported in the record by the State Department’s coun-
try report—an individual complaint about the gang made to
the gang-controlled police would not put a target on someone’s
back.
III. Conclusion
For these reasons, we find that the Board erred by failing
to apply the required clear error standard of review. Because
No. 21-2284 35

the Board failed to apply the correct standard of review, we
need not reach whether substantial evidence supported its
conclusion. In light of this error, we grant F.J.A.P.’s petition
and remand to the Board of Immigration Appeals for recon-
sideration of the immigration judge’s decision under the cor-
rect standard of review consistent with this opinion.
* * *
The petition for review is
GRANTED AND REMANDED.
36 No. 21-2284

BRENNAN, Circuit Judge, concurring in part and dissenting
in part. F.J.A.P. illegally reentered the United States, so the
Department of Homeland Security reinstated his prior order
of removal. While awaiting removal, F.J.A.P. expressed fear of
returning to his home country and was placed in withhold-
ing-only proceedings. The immigration judge granted F.J.A.P.
withholding-only relief, but the Board of Immigration
Appeals reversed. F.J.A.P. petitioned this court for review,
challenging the Board’s decision. Because F.J.A.P. filed his
petition for review more than 30 days after the reinstatement
decision, and that filing deadline is jurisdictional, I would dis-
miss his petition for lack of jurisdiction.
I
The Immigration and Nationality Act, several regulations,
and two recent Supreme Court opinions provide the rules for
this decision. For clarity, I briefly review those.
First, we look to the statutes and regulations. The INA pro-
vides for the removal of aliens and judicial review of that re-
moval. Title 8 U.S.C. § 1252 requires a “final order of removal”
for judicial review. An “order of removal” is one “concluding
that the alien is deportable or ordering deportation.” 8 U.S.C.
§ 1101(a)(47)(A). It becomes final at the conclusion of Board
review or when the time for seeking Board review has ex-
pired. Id. § 1101(a)(47)(B). An alien must file a petition for re-
view “not later than 30 days after the date of the final order of
removal.” Id. § 1252(b)(1).
With a final order of removal, we can review “all ques-
tions of law and fact … arising from any action taken or pro-
ceeding brought to remove [the] alien from the United
States.” Id. § 1252(b)(9) (zipper clause); see Guerrero-Lasprilla v.
No. 21-2284 37

Barr, 598 U.S. –––, 140 S. Ct. 1062, 1070 (2020). This includes
certain questions arising from CAT orders which are
“zipped” with the reviewable final order of removal.
After an alien reenters illegally, the “prior order of re-
moval is reinstated from its original date.” 8 U.S.C.
§ 1231(a)(5). Section 1231(a)(5) expressly forbids relief and
states “the alien shall be removed under the prior order.”
In addition to these statutes, certain federal regulations
apply, which themselves implement treaty obligations. Those
regulations allow limited relief for illegal reentrants. Under
those regulations, an alien may present evidence to an asylum
officer, who will determine whether the alien has a “reasona-
ble fear” of persecution or torture in his home nation. 8 C.F.R.
§ 241.8(e). These “reasonable fear” proceedings are called
“withholding-only” proceedings, through which an alien can
seek either statutory relief or relief under the Convention
Against Torture (CAT); the latter applies here.
Next, two recent Supreme Court cases guide us. In Nasral-
lah v. Barr, 590 U.S. –––, 140 S. Ct. 1683 (2020), the Court
addressed whether a court of appeals could review factual
findings concerning a criminal alien’s final order of removal
and CAT order. 140 S. Ct. at 1689. For criminal aliens, 8 U.S.C.
§ 1252(a)(2)(C) forbids judicial review of a final order of re-
moval. The Court held that § 1252(a)(2)(C) bars judicial re-
view of an alien’s factual challenge to a final order of removal,
but that bar does not apply to a CAT order because it is not a
final order of removal. Nasrallah, 140 S. Ct. at 1691.
In Nasrallah, the Court clarified the meaning of final order
of removal in § 1252, citing § 1101(a)(47)(A). 140 S. Ct. at 1692.
Section 1101(a)(47)(A) defines an “order of deportation” as
38 No. 21-2284

the order “concluding that the alien is deportable or ordering
deportation.”1 The Court concluded that rulings which do not
“affect the validity of the final order” of removal are not part
of the order. 140 S. Ct. at 1692. A CAT order:
does not disturb the final order of removal. An order
granting CAT relief means only that, notwithstanding
the order of removal, the noncitizen may not be re-
moved to the designated country of removal, at least
until conditions change in that country. But the noncit-
izen still may be removed at any time to another coun-
try where he or she is not likely to be tortured.
Id. at 1691 (cleaned up). So, a CAT order is not a final order of
removal and cannot be reviewed independently. Id.
Further, in Johnson v. Guzman Chavez, 594 U.S. –––, 141 S.
Ct. 2271 (2021), the Court considered whether to classify with-
holding of removal requests by those subject to a reinstate-
ment decision under 8 U.S.C. §§ 1226 or 1231. 141 S. Ct. at
2280. Section 1226 applies to an alien “pending a decision on
whether the alien is to be removed.” Section 1231 applies after
an alien has been ordered removed. Section 1226 entitles al-
iens to hearings as to whether they should be released on
bond; § 1231 does not provide the same process.
The Court ruled that a decision to withhold removal is not
an order of removal. See Guzman Chavez, 141 S. Ct. at 2287–88.
The Court also stated that a reinstatement decision is admin-
istratively final as soon as it is issued, and “the finality of the
order of removal does not depend in any way on the outcome

1 As the majority opinion notes, see supra at 7, the INA uses “order of

removal” and “order of deportation” interchangeably.
No. 21-2284 39

of the withholding-only proceedings.” Id. at 2287. In Guzman
Chavez, the Court defined finality by citing Nasrallah, which
cited to “order of removal” as a defined term in the INA un-
der 8 U.S.C § 1101(a)(47). See Guzman Chavez, 141 S. Ct. at 2288.
In addition, the Court expressly left open the question
whether a reinstatement decision is a final order of removal
subject to review at all. Id. at 2285 n.6.
In the wake of these two recent Supreme Court decisions,
there have been numerous inter- and intra-circuit splits on
this jurisdictional issue. See Bhaktibhai-Patel v. Garland, 32 F.4th
180, 190–93 (2d Cir. 2022); but see Order at 2, Cerrato-Barahona
v. Garland, No. 22-6349 (2d Cir. July 12, 2023), ECF No. 22; Or-
der at 2, Castejon-Paz v. Garland, No. 22-6024 (2d Cir. July 12,
2023), ECF No. 25; Martinez v. Garland, 86 F.4th 561, 568 (4th
Cir. 2023); Martinez, 86 F.4th at 572–74 (Floyd, J., concurring);
Argueta-Hernandez v. Garland, 87 F.4th 698, 705–06 (5th Cir.
2023) (reconsidering and overruling Argueta-Hernandez v.
Garland, 73 F.4th 300, 302 (5th Cir. 2023)); Ruiz-Perez v. Gar-
land, 49 F.4th 972, 976 (5th Cir. 2022); but see Ruiz-Perez, 49
F.4th at 980–86 (Oldham, J., dissenting); Kolov v. Garland, 78
F.4th 911, 918–19 (6th Cir. 2023); Alonso-Juarez v. Garland, 80
F.4th 1039, 1056 (9th Cir. 2023); Arostegui-Maldonado v. Gar-
land, 75 F.4th 1132, 1143 (10th Cir. 2023); but see Arostegui-Mal-
donado, 75 F.4th at 1148–51 (Tymkovich, J., concurring).
And in a number of cases pending before this court, the
government has changed its position—sometimes more than
once—on when an order of removal becomes final and
whether the filing deadline in 8 U.S.C. § 1252(b)(1) is jurisdic-
tional. Until approximately 2022, the government consistently
took the position that an alien may timely file a petition to
challenge a decision in a withholding-only proceeding within
40 No. 21-2284

30 days of that decision. Then, the government argued that a
timely petition for review must be filed within 30 days of the
reinstatement decision. Later, the government attempted to
switch positions in cases before our court, maintaining its in-
terpretation of the deadline for filing a petition, but conclud-
ing that the deadline was not jurisdictional and that it had
waived, not forfeited, its enforcement.
We should reconsider our approach to this jurisdictional
question in light of the Court’s decisions.
II
“Federal courts are courts of limited jurisdiction.” Kokko-
nen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
This court has an “independent obligation to determine
whether subject-matter jurisdiction exists.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006).
To fulfill that obligation, we must answer three questions.
First, does either a CAT order or a reinstatement decision
qualify as a removal order? Second, is the petition for review
filing deadline jurisdictional? And third, did F.J.A.P. timely
file his petition for review?
A
This court has jurisdiction to review only when there is a
final order of removal. § 1252(a)(1). So, the first question for
this case is whether a CAT order or a reinstatement decision
is an order of removal.
1. A CAT order is not an order of removal.
Because withholding-only relief addresses where an alien
may be removed to, not whether an alien is removable, a CAT
order is not an order of removal. Guzman Chavez, 141 S. Ct. at
No. 21-2284 41

2285–86; Nasrallah, 140 S. Ct. at 1691. The withholding-only
“determination neither ‘disturb[s] the final order of removal,’
nor ‘affect[s] [its] validity.’” Guzman Chavez, 141 S. Ct. at 2288
(quoting Nasrallah, 140 S. Ct. at 1691). The removal order “re-
mains in full force” and the agency “retains the authority to
remove the alien to any other country authorized by the stat-
ute.” Id. at 2285.
2. A reinstatement decision may not be an order of removal, but
under our current precedent, I presume that it is.
Courts have questioned whether a reinstatement decision
is an order of removal. See Guzman Chavez, 141 S. Ct. at 2285
n.6 (leaving open this question); Martinez, 86 F.4th at 568
(questioning whether a reinstatement decision is a final order
of removal); Ruiz-Perez, 49 F.4th at 976 (same); Bhaktibhai-Pa-
tel, 32 F.4th at 195–96 (same). The reinstatement decision is the
result of an expedited process for those who, after already
having been removed, reenter the United States without au-
thorization. See 8 U.S.C. § 1231(a)(5). That statute provides:
Reinstatement of removal orders against aliens ille-
gally reentering
If the Attorney General finds that an alien has reen-
tered the United States illegally after having been
removed or having departed voluntarily, under an
order of removal, the prior order of removal is rein-
stated from its original date and is not subject to be-
ing reopened or reviewed, the alien is not eligible
and may not apply for any relief under this chapter,
and the alien shall be removed under the prior order at
any time after the reentry.
42 No. 21-2284

8 U.S.C. § 1231(a)(5) (emphasis added). DHS has promulgated
regulations outlining the reinstatement process. See 8 C.F.R.
§ 241.8(a)–(c). “[T]he agency obtains the alien’s prior order of
removal, confirms the alien’s identity, determines whether
the alien’s reentry was unauthorized, provides the alien with
written notice of its determination, allows the alien to contest
that determination, and then reinstates the order.” Guzman
Chavez, 141 S. Ct. at 2282.
A reinstatement decision does not fit within the statutory
definition of a removal order. The language of § 1231(a)(5)
distinguishes between an “order of removal” and the rein-
statement decision. The INA and regulations implementing
the INA repeat this distinction throughout. See, e.g., 8 C.F.R.
§ 208.31(a) (distinguishing between an alien who is “ordered
removed” and an alien whose “removal order is reinstated”).
For example, § 1231(a)(5), states, “the prior order of removal
is reinstated.” Under this provision, a new order of removal
is not made; instead, the prior order is reinstated. The order
of removal is the initial order when the alien first illegally en-
tered the country and was removed, not the later decision to
reinstate the prior order of removal. Nasrallah states, “final or-
ders of removal encompass only the rulings made by the im-
migration judge or Board of Immigration Appeals that affect
the validity of the final order of removal.” 104 S. Ct. at 1691.2

2 F.J.A.P. argues that a reinstatement decision is a removal order be-

cause “order of deportation” as defined in in § 1101(a)(47)(A) says a re-
moval order is any order ordering deportation. F.J.A.P. points to the last
page of the Board’s withholding-only decision, which states F.J.A.P. is “or-
dered removed.” Oral Argument at 29:48–30:17.
But the Board did not discuss the reinstatement decision. Instead, the
Board said the withholding-only decision does not affect the
No. 21-2284 43

Although, as explained above, the reinstatement decision
may not be an order of removal, caution counsels against
reaching that conclusion. Guzman Chavez left open this ques-
tion, see 141 S. Ct. at 2285 n.6, and this court’s precedent pre-
sumes that a reinstatement decision is a removal order, see
Faiz-Mohammad v. Ashcroft, 395 F.3d 799, 800 (7th Cir. 2005).
So, as does the majority opinion, I conclude that a reinstate-
ment decision is a final order of removal subject to judicial
review under § 1252(b)(9).
B
The second question is whether the petition for review fil-
ing deadline is jurisdictional. The relevant statute, 8 U.S.C.
§ 1252(b)(1), grants 30 days to seek judicial review of a final
order of removal.
I join the majority’s holding that the filing deadline in
§ 1252(b)(1) is jurisdictional. In Stone v. INS, 514 U.S. 386
(1995), the Court so held. Id. at 405. In Santos-Zacaria v. Gar-
land, 598 U.S. 411 (2023), the Court considered whether the
administrative exhaustion provision in § 1252(d)(1) was

reinstatement decision or the prior order of removal that has been rein-
stated. As the Court held in Nasrallah and reiterated in Guzman Chavez, a
CAT order is not a final order of removal. See Nasrallah, 140 S. Ct. at 1692;
Guzman Chavez, 141 S. Ct. at 2285–86. As F.J.A.P. points out, the Board’s
decision states he will be “ordered removed from the United States to El
Salvador.” The Board’s decision denying withholding-only relief does not
affect the validity of the final order of removal, however. See Nasrallah, 140
S. Ct. at 1692. The CAT order just confirms that F.J.A.P. is now “ordered
removed from the United States to El Salvador.” The only relief that could
be granted in withholding-only proceedings was to prevent F.J.A.P. from
being sent to El Salvador, which was denied.
44 No. 21-2284

jurisdictional. 598 U.S. at 417. The Court held that it was not.
Id. at 423. In dicta, the Court opined that its jurisdictional
holding in Stone might not be binding precedent, and that the
time to file a petition for review might be a claims-processing
rule instead. See id. at 421 (dicta).3
As the Court stated in Santos-Zacaria, Stone was decided at
a time when the Supreme Court used the word “jurisdiction”
more loosely than it does under current practice. Id. And, un-
der current practice, a time limit for seeking judicial review of
an administrative decision would likely not be called jurisdic-
tional. See, e.g., Arbaugh, 546 U.S. at 515; Arellano v.
McDonough, 598 U.S. 1, 6–14 (2023). But the Court in Santos-
Zacaria decided not to apply Stone to the exhaustion provision
in 1252(d)(1) because Stone did not specifically address the ex-
haustion requirement. See Santos-Zacaria, 598 U.S. at 421–22.
Santos-Zacaria did not overrule Stone. The Court in Santos-
Zacaria distinguished the reasoning in Stone as applied to ex-
haustion provisions in the INA and given current practice,
called into question the reasoning in Stone. Santos-Zacaria did
not discuss filing deadlines at all. See id. In Stone, however, the
Court did specifically consider filing deadlines—such as the
one at issue here—and concluded that the filing deadline in
the INA was jurisdictional. 514 U.S. at 405.
As an inferior court, we continue to apply Stone until over-
ruled. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (“We
do not acknowledge, and we do not hold, that other courts
should conclude our more recent cases have, by implication,

3 As the majority opinion points out, since Santos-Zacaria, this question

has arisen in several circuits. They are split, even intra-circuit. See supra at
5–6.
No. 21-2284 45

overruled an earlier precedent. We reaffirm that if a precedent
of this Court has direct application in a case yet appears to
rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly con-
trols, leaving to this Court the prerogative of overruling its
own decisions.”) (cleaned up). Because Stone ruled that the fil-
ing deadline in § 1252(b)(1) is jurisdictional, and Stone has not
been overruled, I agree with my colleagues that the filing
deadline in 8 U.S.C. § 1252(b)(1) is jurisdictional.
C
The third question is whether F.J.A.P. timely filed his pe-
tition for review. I part ways with my colleagues here and I
conclude that he did not.
A petition of review must be filed “not later than 30 days
after the date of the final order of removal.” § 1252(b)(1). The
relevant dates for F.J.A.P.’s petition are:
 Prior final order of removal—December 16, 2008;
 DHS decision to reinstate prior final order of re-
moval—January 22, 2020;
 Board decision reversing IJ grant of CAT relief, con-
cluding withholding-only proceedings—June 14,
2021; and
 Petition for review filed with our court—July 13,
2021.

If the reinstatement decision was final when issued on Janu-
ary 22, 2020, F.J.A.P. had to petition for review by February
21, 2020. His petition was thus untimely. If, however,
F.J.A.P.’s placement in withholding-only proceedings meant
that the reinstatement decision was not yet final, F.J.A.P. had
30 days after the conclusion of the withholding-only
46 No. 21-2284

proceedings to file his petition, July 14, 2021, in which case his
petition would be timely.
1. Withholding-only proceedings do not affect the finality of re-
instatement decisions.
The 30-day filing deadline began to run on January 22,
2020, when DHS reinstated F.J.A.P.’s prior order of removal,
so his petition for review was not timely. F.J.A.P.’s reinstate-
ment decision has “long been ‘administratively final.’” Guz-
man Chavez, 141 S. Ct. at 2285. An order of removal becomes
final at the conclusion of the allowed administrative review.
See § 1101(a)(47)(B); see also Nasrallah, 140 S. Ct. at 1691; Guz-
man Chavez, 141 S. Ct. at 2288 (applying Nasrallah’s interpreta-
tion of finality); see also Bhaktibhai-Patel, 32 F.4th at 192–93;
Martinez, 86 F.4th at 568–71.
Section 1101(a)(47)(B) states that an order of deportation
becomes “final” on the earlier of:
(i) a determination by the Board of Immigration Ap-
peals affirming such order; or
(ii) the expiration of the period in which the alien is
permitted to seek review of such order by the Board of
Immigration Appeals.
The INA contains no other definition of “final.” The Court in
Nasrallah (interpreting § 1252) and Guzman Chavez (interpret-
ing § 1231) used this definition. See Guzman Chavez, 141 S. Ct.
at 2285 (“[O]nce the BIA has reviewed the order (or the time
for seeking the BIA’s review has expired), DHS is free to re-
move the alien.”); Nasrallah, 140 S. Ct. at 1691 (“In the depor-
tation context, a final ‘order of removal’ is a final order ‘con-
cluding that the alien is deportable or ordering deportation.’”
(citing § 1101(a)(47)(A)) (“An order granting [withholding-
No. 21-2284 47

only] relief means only that, notwithstanding the order of re-
moval, the noncitizen may not be removed to the designated
country of removal, at least until conditions change in that
country. But the noncitizen still ‘may be removed at any time
to another country where he or she is not likely to be tor-
tured.’” (citing 8 C.F.R. §§ 1208.16(f), 1208.17(b)(2))).
Using the definition in § 1101(a)(47)(B) here, a reinstate-
ment decision is final when issued. A reinstatement decision
receives no Board review. See § 1231(a)(5) (“the prior order of
removal is reinstated from its original date and is not subject
to being reopened or reviewed”).
Withholding-only proceedings do not change this. This
court has held as much, concluding that an order of removal
is final and reviewable, even if a request for discretionary re-
lief, such as a withholding-only decision, remains pending.
See Jimenez Viracacha v. Mukasey, 518 F.3d 511, 513 (7th Cir.
2008).
The reinstatement decision and the order deciding with-
holding-only relief are separate decisions. In order to make
the withholding-only decision, there must be a removal deci-
sion—here the reinstatement decision, which requires the re-
moval of the alien—that can be withheld. A grant of with-
holding-only relief does not affect the validity—the legally
binding effect—of a final order of removal. Guzman Chavez,
141 S. Ct. at 2288 (quoting Nasrallah, 140 S. Ct. at 1691). Again,
withholding-only relief affects where an alien is removed to,
not whether an alien is removable. Id. at 2285–86.
The indeterminacy as to where an alien may be removed
does not affect whether DHS can remove the alien. Even if
withholding-only proceedings begin, DHS can still deport the
48 No. 21-2284

alien to a third country (not his or her home country) at the
conclusion of those proceedings, regardless of the outcome,
because the only relief provided by withholding-only pro-
ceedings is changing where the alien will go. Guzman Chavez,
141 S. Ct. at 2283. Thus, although there may be further agency
action, that action does not affect the finality of the order of
removal.
Concluding otherwise runs counter to the reasoning in
Nasrallah and Guzman Chavez. Recall, the Supreme Court re-
jected Guzman Chavez’s argument that withholding-only
proceedings keep a removal order “pending.” Id. at 2285 (“Re-
spondents misunderstand the nature of withholding-only
proceedings.”). Again, the Court has explained that even if
withholding-only relief is granted, the removal order “is not
vacated or otherwise set aside” but “remains in full force.”
Guzman Chavez, 141 S. Ct. at 2285. Withholding-only relief
“‘does not disturb the final order of removal,’ ‘affect the va-
lidity of the final order of removal,’ or otherwise ‘merge into
the final order of removal.’” Id. at 2288 (quoting Nasrallah, 140
S. Ct. at 1691).
Moreover, in Nasrallah, the Court rejected the govern-
ment’s argument that in some cases no order deciding with-
holding-only relief was judicially reviewable: “Section
2242(d) of FARRA, enacted in 1998, expressly provides for ju-
dicial review of [withholding-only] claims together with the
review of final orders of removal.” Nasrallah, 140 S. Ct. at 1693.
The Court did not say that a withholding-only decision pre-
vents an order of removal from becoming final, and thus was
reviewable as part of the administrative process with an order
of removal.
No. 21-2284 49

Rather, the Court said an order deciding withholding-only
relief was reviewable with a final order of removal. A rein-
statement decision receives no such review and is final when
issued. Just because an alien enters withholding-only pro-
ceedings does not mean “the reinstated order loses its prior
finality.” Guzman Chavez, 141 S. Ct. at 2287. So, under
§ 1252(b)(1), a petition for review of an order deciding with-
holding-only relief must be filed within 30 days of that rein-
statement decision to be reviewable as part of that final order.
F.J.A.P. failed to meet that deadline.
Last, per the majority opinion’s interpretation of the INA
statutes, a reinstatement decision could be final for purposes
of detention under § 1231, but not final for purposes of judi-
cial review under § 1252. That would run counter to the INA’s
single definition of when an order of deportation becomes “fi-
nal,” at § 1101(a)(47)(B).4
2. Contrary readings of the statutes and caselaw are not persua-
sive.
The majority opinion concludes the opposite, reasoning
that: (1) § 1231 and § 1252 use different language—§ 1231 uses
the term “administratively final,” and § 1252 uses the term
“final”—so the statutes must have different meanings; and (2)
the Court left open the question of when an order is final un-
der § 1252 in footnote 6 of Guzman Chavez.

4 The majority opinion cites Eke v. Mukasey, 512 F.3d 372, 375–78 (7th

Cir. 2008), as an example of our court exercising jurisdiction over a peti-
tion after withholding-only proceedings had received complete Board re-
view. See supra at 20, 22. But Eke was issued a decade earlier than Guzman
Chavez or Nasrallah and their rulings on these questions.
50 No. 21-2284

i. A reinstatement decision, which receives limited adminis-
trative process that does not affect the validity of the deci-
sion, is final when issued.
Under § 1252, the period to file a petition for review begins
on “the date of the final order of removal.” 8 U.S.C.
§ 1252(b)(1). So, as described above, there must be a final or-
der of removal for judicial review.
A “final order of removal” under § 1252 is an order that
has received all due administrative process. An order of de-
portation or removal is a defined term in the INA. See id.
§ 1101(a)(47)(A) (“(A) The term ‘order of deportation’ means
the order of the special inquiry officer, or other such adminis-
trative officer to whom the Attorney General has delegated
the responsibility for determining whether an alien is deport-
able, concluding that the alien is deportable or ordering
deportation.”) And when that order becomes final is also de-
fined. Id. § 1101(a)(47)(B) (“(B) The order described under
subparagraph (A) shall become final upon the earlier of—(i) a
determination by the Board of Immigration Appeals affirm-
ing such order; or (ii) the expiration of the period in which the
alien is permitted to seek review of such order by the Board
of Immigration Appeals.”).
Here, the order of removal was a reinstatement decision,
which was final when issued. Again, under § 1252, only a final
order of removal is reviewable. Using the definition of
§ 1101(a)(47)(B), an order of removal is final when it has com-
pleted all due administrative process—“administratively
final.” A reinstatement decision is therefore final and review-
able by a court. Placement in withholding-only proceedings
does not affect that.
No. 21-2284 51

Other statutes support this reasoning. For example, take
the statute discussing the detention and removal of aliens.
The removal period begins (i) when the order of removal be-
comes administratively final, (ii) if judicially reviewed, the date
of the court’s final order, or (iii) if the alien is detained or con-
fined, when the alien is released. See 8 U.S.C. § 1231(a)(1)(B)
(emphasis added). In § 1231, the modifier “administratively”
reiterates that an order of removal becomes final under the
INA when all due administrative process ends—in accord
with the definition in § 1101(a)(47)(A) for when an order of
removal becomes final. That is distinct from a later final order
issued by a court, if judicial review is allowed. The Court in
Guzman Chavez states this expressly: “By using the word ‘ad-
ministratively,’ Congress focused our attention on the
agency’s review proceedings, separate and apart from any ju-
dicial review proceedings that may occur in a court.” 141 S.
Ct. at 2284. That is because the INA distinguishes between
when an order of removal is final—receiving all due admin-
istrative process—and when a court issues a final order.
The penalties related to removal also support this reading.
8 U.S.C. § 1253(a)(1)(A), penalizes an alien who “willfully fails
or refuses to depart from the United States within a period of
90 days from the date of the final order of removal under admin-
istrative processes, or if judicial review is had, then from the
date of the final order of the court … .” (emphasis added).
Again, a final order of removal—meaning, administratively
final and reviewable by a court, if such review is allowed—is
distinguished from a later final order of the court.
The INA often uses language to differentiate between
when there is a final order of removal—as an agency’s process
is complete, and judicial review may be allowed—and when
52 No. 21-2284

there is a final order of the court after judicial review. It stands
to reason that is why “administratively” is used in § 1231 but
not elsewhere in that statute, such as in § 1252 where such a
distinction is not necessary. Further supporting this conclu-
sion is the INA’s single definition of an order of deportation
and when that order becomes final. 8 U.S.C. § 1101(a)(47). But
there are references to two kinds of “final orders” in the
INA—a final order of removal, and a final order of the court
after allowed judicial review. See, e.g., id. §§ 1231(a)(1)(B),
1253(a)(1)(A), 1227(d)(1)(B) (“there is a final administrative
denial of the application … after the exhaustion of adminis-
trative appeals”).5 The majority opinion places too much
weight on “administratively,” which is used in
§ 1231(a)(1)(B)(i) only as a modifier.
The majority opinion states that “under § 1231 an order is
not ‘final’ until it has been reviewed in court[,]” thus creating
a “impossible bind.” But § 1231 does not state that a court
must review an order for it to be final. Rather, the INA sets
forth, several times, that for judicial review, what is required
is an order of removal that received full agency process, i.e., is
“administratively final.” Once administratively final, the final
order of removal is reviewable by a court, and if judicial re-
view is allowed, then there is a final order of the court. Judicial

5 Elsewhere in the INA, judicial process is distinguished from admin-

istrative process. To differentiate between the same process at different
levels of review, the Act uses modifiers like “judicial,” “administrative,”
or “administratively.” For example, § 1227(d)(1) describes a stay as “ad-
ministrative.” But § 1229c(f) and § 1231(a)(1)(B)(ii) discuss a judicial stay
and use only the word “stay,” without the modifier “administrative.” See
also, e.g., 8 U.S.C. §§ 1160(e)(1), 1255a(f) (distinguishing between adminis-
trative and judicial review).
No. 21-2284 53

review does not affect the administrative finality of the un-
derlying final order of removal.
A final order of the court is distinct from a final order of
removal that may be subject to judicial review. An order of
removal is final when “administratively final” and that final-
ity “does not depend in any way on the outcome of the with-
holding-only proceedings.” Guzman Chavez, 141 S. Ct. at 2287.
Again, entering withholding-only proceedings does not keep
a removal order “pending”; rather, it “remains in full force.”
Id. at 2285. Holding otherwise contradicts the expedited re-
view process Congress created in § 1231(a)(5) for illegal reen-
trants to this country, as well as the Court’s reasoning and
conclusions in Nasrallah and Guzman Chavez.
ii. The Court left open whether a reinstatement decision is
an order of removal, not when an order of removal is final.
I do not read the Court in Guzman Chavez to have left open
the question of when an order of removal is final under § 1252.
In Guzman Chavez’s Supreme Court brief, she argues that a
reinstatement decision “is a new order of removal subject to
judicial review,” citing numerous circuit court opinions. See
Brief for Respondent at 24–26 & n.8, Johnson v. Guzman Chavez,
594 U.S. –––, 141 S. Ct. 2271 (2021) (No. 19-897) (“Resp. Br.”).
The Court considered that argument in footnote 6 of its ma-
jority opinion. See Guzman Chavez, 141 S. Ct. at 2285 n.6. Read-
ing footnote 6 alongside Guzman Chavez’s arguments and ci-
tations clarifies which question the Court left open. Guzman
Chavez argued that a reinstatement decision is a new final or-
der of removal that is subject to judicial review. Resp. Br. at
24 & n.8. The Court speaks to these arguments in footnote 6:
54 No. 21-2284

[S]ome lower courts’ interpretation of the phrase “final
order of removal” as it is used in 8 U. S. C. § 1252(b)(1)
requires that this Court adopt respondents’ interpreta-
tion of § 1231 here. Brief for Respondents 24–26, and n.
8. We express no view on whether the lower courts are
correct in their interpretation of § 1252, which uses dif-
ferent language than § 1231 and relates to judicial re-
view of removal orders rather than detention.
Guzman Chavez, 141 S. Ct. at 2285 n.6. The footnote refers to
the lower courts’ decisions that a reinstatement decision was
a new order of removal subject to judicial review under
§ 1252(b)(1). The Court left open the question whether rein-
statement decisions were even final orders of removal. Foot-
note 6 therefore does not help F.J.A.P., either.
The citations in footnote 8 of Guzman Chavez’s Supreme
court brief support this conclusion. Every case cited there pre-
sumed that the court has appellate jurisdiction over the rein-
statement decision under § 1252(b) as an order of removal.
Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003) (“There is little
doubt that we have appellate jurisdiction over the reinstate-
ment of an order to deport an illegal reentrant. The reinstate-
ment itself operates as the functional equivalent of a final
order of removal.”); Garcia-Villeda v. Mukasey, 531 F.3d 141,
144 (2d Cir. 2008) (reviewing a reinstatement decision); Avila-
Macias v. Ashcroft, 328 F.3d 108, 110 (3d Cir. 2003) (holding the
court had jurisdiction to review questions arising from a rein-
statement decision); Velasquez-Gabriel v. Crocetti, 263 F.3d 102,
105 (4th Cir. 2001) (holding a reinstatement decision was an
“order of removal” subject to judicial review); Ojeda-Terrazas
v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002) (holding that a re-
instatement decision “is not literally an ‘order of removal’ [8
No. 21-2284 55

U.S.C. § 1252(b)] because it merely reinstates a previously is-
sued order of removal or deportation” … but is a final order
of the Immigration and Naturalization Service that may be re-
viewed); Warner v. Ashcroft, 381 F.3d 534, 536 (6th Cir. 2004)
(holding the court had jurisdiction to review a reinstatement
decision because it was an order of removal reviewable under
8 U.S.C. § 1252(b)); Gomez-Chavez v. Perryman, 308 F.3d 796,
800 (7th Cir. 2002) (holding the alien was “entitled to petition
th[e] court for review of the [reinstatement decision]”);
Briones-Sanchez v. Heinauer, 319 F.3d 324, 326 (8th Cir. 2003)
(holding the court has jurisdiction to review a reinstatement
decision under § 1252); Ixcot v. Holder, 646 F.3d 1202, 1206 (9th
Cir. 2011) (holding the court had “jurisdiction to review final
agency orders of removal, including reinstatement orders”
under § 1252); Duran-Hernandez v. Ashcroft, 348 F.3d 1158,
1162 n.3 (10th Cir. 2003) (“Although § 1252 speaks specifically
of judicial review of ‘orders of removal,’ every circuit to ad-
dress the question has found [Section] 1252 to cover review of
reinstatement orders as well.”) (alteration in original) (note
that Guzman Chavez’s brief specifically cites this quote); Sar-
miento Cisneros v. United States Att’y Gen., 381 F.3d 1277, 1278
(11th Cir. 2004) (reviewing a reinstatement decision)).
The Court’s later discussion of these same pages in Guz-
man Chavez’s brief provides further clarity. There, the Court
considered her argument that even if a reinstatement decision
is final when issued, withholding-only proceedings reopen fi-
nality. The Court disagreed, stating, “removal orders and
withholding-only proceedings address two distinct ques-
tions. As a result, they end in two separate orders, and the
finality of the order of removal does not depend in any way
on the outcome of the withholding-only proceedings.” Guz-
man Chavez, 141 S. Ct. at 2287.
56 No. 21-2284

On this point the Court remarked that administrative fi-
nality—all due administrative process being complete—
makes an order of removal final. And a withholding-only pro-
ceeding does not keep a reinstatement decision from becom-
ing final:
Because the validity of removal orders is not affected
by the grant of withholding-only relief, an alien’s initi-
ation of withholding-only proceedings does not render
non-final an otherwise “administratively final” rein-
stated order of removal.
Id. at 2288.
Santos-Zacaria does not disturb this interpretation of
Nasrallah and Guzman Chavez. See supra at 28–29. We may not
draw conclusions from “drive-by jurisdictional rulings.” See,
e.g., Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 91 (1998).
Not unless a jurisdictional issue is squarely confronted and
addressed has a jurisdictional holding occurred. In Santos-
Zacaria, the Court dealt with a different provision of the INA
and § 1252(b)(1)’s filing deadline was never raised, so the
Court did not confront the jurisdictional issue in this case.
3. The presumption of reviewability does not change this result.
Finally, the presumption of reviewability is just that: a pre-
sumption. Congress can foreclose judicial review. Block v.
Cmty. Nutrition Inst., 467 U.S. 340, 349, 351 (1984); Abbott
Lab’ys v. Gardner, 387 U.S. 136, 140 (1967) (citing cases), abro-
gated on other grounds by Califano v. Sanders, 430 U.S. 99, 105
(1977). That presumption can be overcome by clear and con-
vincing evidence of Congressional intent to preclude judicial
review. Rusk v. Cort, 369 U.S. 367, 379–80 (1962), abrogated on
other grounds by Califano, 430 U.S. at 105. With reinstatement
No. 21-2284 57

decisions, Congress specifically precluded review. Section
1231 uses the phrases: “not subject to being reopened or re-
viewed”; “shall be removed … at any time”; and “not eligible
[for] and may not apply for any relief.” A reinstatement deci-
sion is part of an expedited process without review for aliens
who illegally reenter.6
III
F.J.A.P. illegally reentered the United States, so his prior
order of removal was reinstated. Because F.J.A.P. petitioned
for review more than 30 days after the reinstatement decision,
his petition was untimely. I agree with the majority opinion
that the filing deadline for a petition for review is jurisdic-
tional. Therefore, I conclude that our court does not have ju-
risdiction to consider F.J.A.P.’s petition, and I would dismiss
this petition. For these reasons, I respectfully concur in part
and dissent in part.

6 The majority opinion suggests that this logic forecloses review of

withholding-only proceedings associated with reinstatement decisions.
See supra at 25. The issue for F.J.A.P. is not what can be reviewed, but when
that review can take place.