Background
Winston Lloyd Hayles, a Jamaican citizen, unlawfully entered the United States and was later convicted of voluntary manslaughter and battery in Georgia, receiving a 20-year sentence. Upon his release, the Department of Homeland Security initiated administrative removal proceedings based on his aggravated felony convictions. Because Hayles expressed a fear of returning to Jamaica, he was referred to separate withholding-only proceedings before an immigration judge to determine whether he qualified for deferral of removal under the Convention Against Torture (CAT). DHS issued a final administrative removal order on July 13, 2023.
The immigration judge denied CAT relief, finding that Hayles had not established it was more likely than not that he would be tortured by or with the acquiescence of a Jamaican public official. The Board of Immigration Appeals affirmed that denial on November 8, 2023. Hayles, acting pro se, then filed a petition for judicial review in the Eleventh Circuit directed at the Board’s November 2023 CAT ruling. His petition expressly referenced the November 8 date and raised arguments about the Jamaican police, gang-political connections, and failed relocation attempts — all going to his CAT burden — but never challenged the July 2023 final administrative removal order. The court denied a stay of removal and Hayles was deported. The Eleventh Circuit later appointed the Immigration Clinic at the University of Miami Law School to represent him.
After appointing counsel, the court sua sponte ordered supplemental briefing on whether it had jurisdiction to consider the petition. Counsel raised a procedural due process claim — arguing DHS failed to provide Hayles a list of pro bono attorneys as required by 8 C.F.R. § 238.1(b)(2)(iv) — along with the underlying CAT merits challenge. The government moved to dismiss for lack of jurisdiction.
The Court’s Holding
The Eleventh Circuit, in an opinion by Judge Brasher joined by Chief Judge William Pryor, held that it lacked jurisdiction and dismissed the petition. The court grounded its analysis in three interlocking statutes: the IIRIRA’s zipper clause, which channels all questions of law and fact arising from removal actions exclusively into review of a final removal order, 8 U.S.C. § 1252(b)(9); the Foreign Affairs Reform and Restructuring Act of 1998, which bars any court from considering CAT claims “except as part of the review of a final order of removal,” FARRA § 2242(d); and the REAL ID Act of 2005, which confirms a petition for review is “the sole and exclusive means” of judicial review of CAT claims, 8 U.S.C. § 1252(a)(4). Together, these provisions require that CAT review be tethered to review of a final removal order. The court aligned with the Ninth Circuit’s recent decision in Navarrete v. Bondi, 170 F.4th 1214 (9th Cir. 2026), and expressly disagreed with the Third Circuit’s contrary holding in Laureano v. Attorney General, No. 24-2433 (3d Cir. May 29, 2026), creating a circuit split.
The court then examined whether Hayles’s pro se petition could be read to challenge the July 2023 final removal order. Applying liberal construction, the court still concluded it could not. Hayles’s petition referenced only the November 8, 2023 BIA date, never mentioned the July 13, 2023 removal order, and confined all substantive arguments to CAT-specific issues — government acquiescence in torture and inability to relocate — that had no bearing on the aggravated felony basis for his removal. The court also rejected the argument that Hayles’s appellate briefing could amend his petition to add a challenge to the removal order, holding that jurisdiction is defined by what is “raised upon a petition for review,” not upon briefs filed later.
Finally, the court held that even if it assumed amendment of the petition were permissible, it would deny leave because any challenge to the removal order would be frivolous. The record showed Hayles had twice affirmed he received a pro bono attorney list, and a notice directing him to one was mailed to him. More fundamentally, no attorney list could have aided him because his removal was compelled by serious criminal convictions that barred permanent residence and adjustment of status.
Key Takeaways
- In the Eleventh Circuit, a petition for review that challenges only the denial of CAT relief — without also challenging a final order of removal — is jurisdictionally defective and must be dismissed. CAT review is available only as part of review of a final removal order.
- A circuit split now exists: the Eleventh and Ninth Circuits require a challenge to the removal order as a prerequisite to CAT jurisdiction; the Third Circuit holds that an undisputed final removal order is sufficient to trigger jurisdiction over a standalone CAT challenge.
- Appellate briefing cannot cure a jurisdictional deficiency in a petition for review; claims must be “raised upon” the petition itself. Courts will not rewrite a pro se petition, even under liberal construction, to add a challenge that is plainly absent.
- Courts may deny leave to amend a petition where the proposed new claim is frivolous — such as a due process challenge to the pro bono list where the record contradicts the claim and the petitioner’s removal was legally compelled regardless.
Why It Matters
This decision closes an important procedural door for noncitizens — particularly aggravated felons subject to administrative removal — who seek to contest CAT denials in federal court. Because such individuals go through a separate withholding-only track and often have no good-faith basis to dispute removability itself, the Eleventh Circuit’s rule may leave them with no viable path to judicial review of CAT determinations unless they can identify a simultaneous, non-frivolous challenge to the removal order. The deepening circuit split with the Third Circuit makes this a strong candidate for further review, including potential en banc consideration in the Ninth Circuit (where rehearing was already pending at the time of this decision) or eventual Supreme Court resolution.
Judge Abudu’s partial dissent offers a meaningful counterweight, arguing that a CAT claim is inherently a challenge to the execution of a removal order — not a separate proceeding — and that the Riley majority’s silence on the zipper-clause theory undermines the Navarrete framework the majority adopts. Practitioners handling withholding-only cases should take note: to preserve appellate options in the Eleventh Circuit, petitioners must now ensure their petition for review expressly challenges the final removal order, even if removability itself is undisputed.