Background
Jaime Daniel Navarro Cerritos fled El Salvador after years of violence and threats from MS-13, including beatings and rape, retaliation connected to a police report, pressure to join the gang, and targeting arising from his work on a youth committee that offered alternatives to gang recruitment. After his 2016 removal, he returned to El Salvador, where MS-13 allegedly continued targeting him. He repeatedly relocated within the country before returning to the United States.
The Department of Homeland Security reinstated Navarro’s prior removal order in April 2021. An immigration judge later denied statutory withholding of removal and protection under the Convention Against Torture, and the Board of Immigration Appeals affirmed on July 28, 2023. Navarro filed his petition for review 30 days after the Board’s decision, rather than within 30 days of the reinstatement order, which the Supreme Court’s later decision in Riley v. Bondi established was the relevant final order of removal.
The Court’s Holding
In a 2-1 decision, the Fourth Circuit held that a reinstatement order is a final order of removal and that Navarro’s petition sufficiently presented a nominal challenge to that order even though he did not contest removability on the merits. The court further held that 8 U.S.C. § 1252(b)(1)’s 30-day filing deadline is a nonjurisdictional claims-processing rule subject to equitable tolling. Tolling was warranted because Navarro diligently followed then-existing practice by filing within 30 days of the Board’s withholding-only decision, before Riley changed the governing understanding of when review had to be sought.
On the merits, the court held that the agency ignored significant evidence and used erroneous legal reasoning when evaluating Navarro’s imputed anti-gang political opinion and his proposed particular social group of individuals in El Salvador who witness and report MS-13 crimes to police. The court ruled that the group was sufficiently particular, vacated the agency’s social-distinction and political-opinion determinations, and remanded remaining group-membership and cognizability issues. It also vacated the denial of CAT protection because the agency failed to meaningfully consider evidence of past torture, MS-13’s continuing pursuit of Navarro, his unsuccessful relocation attempts, and possible government acquiescence. The court granted the petition, reversed in part, vacated in part, and remanded. Judge Wilkinson dissented, concluding that the statutory deadline is mandatory and cannot be equitably tolled.
Key Takeaways
- A DHS reinstatement order constitutes a final order of removal reviewable under 8 U.S.C. § 1252(a)(1).
- The Fourth Circuit held that § 1252(b)(1)’s 30-day petition deadline may be equitably tolled and applied tolling where the petitioner reasonably relied on pre-Riley practice.
- A particular social group must be evaluated as a whole; the court held that Navarro’s proposed group contained sufficiently concrete, self-limiting boundaries.
- Immigration adjudicators must meaningfully address material evidence supporting withholding and CAT claims, including credible testimony, expert evidence, corroborating affidavits, failed relocation attempts, and evidence of official acquiescence.
Why It Matters
The decision preserves judicial review for certain noncitizens whose petitions became untimely under Riley’s later clarification that the 30-day period runs from the underlying final removal order, not the conclusion of withholding-only proceedings. It also places the Fourth Circuit among the courts recognizing equitable tolling of § 1252(b)(1), while deepening disagreement among the circuits over review of withholding-only claims and enforcement of the filing deadline.
On the merits, the opinion reinforces that the immigration agency may not divide a proposed social group into isolated terms or disregard material evidence bearing on political motive, future torture, internal relocation, and government acquiescence.