Background
Paulina Sebastian-Perez, a Mexican citizen, was removed from the United States in September 2019 and again in October 2019 after the Department of Homeland Security reinstated her prior removal order. She later reentered the country without detection. After her arrest in February 2025 for driving without a license, DHS served her with notice that it intended to reinstate the September 2019 removal order.
Sebastian-Perez expressed fear of returning to Mexico, triggering a reasonable-fear interview. An asylum officer found that she had not established a reasonable fear of persecution or torture, and an immigration judge affirmed. That finding prevented her from entering withholding-only proceedings to seek withholding of removal or protection under the Convention Against Torture. She petitioned the Eighth Circuit to review only the immigration judge’s reasonable-fear decision, expressly declining to seek review of the reinstatement order.
The Court’s Holding
The Eighth Circuit dismissed the petition for lack of jurisdiction. Under 8 U.S.C. § 1252(a)(1), courts of appeals may review a final order of removal. The immigration judge’s reasonable-fear decision was not such an order because it neither found Sebastian-Perez removable nor ordered her removal; it determined only that she could not proceed to withholding-only proceedings.
The court also held that the reasonable-fear decision did not affect the validity of, or merge into, a final removal order. Whether withholding protection is granted or denied, the removal order remains effective, and DHS may retain authority to remove the noncitizen to another authorized country. The court therefore lacked jurisdiction to review the reasonable-fear ruling standing alone. It denied the government’s motion for summary disposition as moot.
Key Takeaways
- An immigration judge’s decision affirming a negative reasonable-fear finding is not itself a final order of removal reviewable under 8 U.S.C. § 1252(a)(1).
- A reasonable-fear ruling does not merge into a removal order because withholding-only relief does not determine or alter the removal order’s validity.
- The Eighth Circuit distinguished precedent involving petitions that also challenged a reinstatement or final removal order and disagreed with the Third Circuit’s contrary approach.
Why It Matters
The decision limits appellate review when a noncitizen challenges only a negative reasonable-fear determination after reinstatement of a removal order. In the Eighth Circuit, a standalone petition directed solely at that determination does not supply jurisdiction under the final-order-of-removal statute.
The ruling also underscores the importance of identifying the reviewable agency order and timely petitioning from it. The court assumed without deciding that Sebastian-Perez’s 2025 reinstatement order could qualify as a final order of removal and could have been timely challenged, but she expressly chose not to seek its review.