Patria Laureano v. Attorney General United States of America

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 24-2433

_____________

PATRIA LAUREANO,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

_____________

On Petition for Review of an

Order of the Board of Immigration Appeals

(Agency Case No. A044-879-555)

Immigration Judge: Carmen Rey Caldas

_____________

Argued

October 1, 2025

_____________

Before: SHWARTZ, MATEY, and FISHER, Circuit Judges.

(Filed: May 29, 2026)

_____________

Rebecca Hufstader [Argued]

Robert Jackel

Legal Services of New Jersey

100 Metroplex Drive, Suite 101

Edison, NJ 08818

Counsel for Petitioner

Yaakov M. Roth

Keith I. McManus

Edward C. Durant

Anthony J. Nardi [Argued]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

Trina A. Realmuto [Argued]

National Immigration Litigation Alliance

10 Griggs Terrace

Brookline, MA 02446

Counsel for Amicus

___________

OPINION OF THE COURT

____________

SHWARTZ, Circuit Judge.

Patria Laureano asks us to review the order of the Board

of Immigration Appeals (“BIA”) denying her withholding of

2

removal and relief under the Convention Against Torture

(“CAT”). We have jurisdiction to review both of her claims.

As to the merits, the Majority concludes that the BIA correctly

denied CAT relief, and one of us would hold that the Attorney

General’s opinion in Matter of Y-L-, A-G- & R-S-R, 23 I. &

N. Dec. 270, 274 (A.G. 2002), bars Laureano’s withholding

arguments, while another would hold that Y-L- is ultra vires.

A third panel member would hold that we lack jurisdiction to

consider any of her claims. As a result, we will deny

Laureano’s petition to review her CAT claim, but as to

statutory withholding, because we do not have a majority, the

petition for review is denied by an equally divided vote.1

1

Because there is no majority on the outcome of

Laureano’s petition for review of the denial of her statutory

withholding claim, we follow the practice of the Supreme

Court in leaving intact the ruling under review. See Costco

Wholesale Corp. v. Omega, S.A., 562 U.S. 40 (2010);

Freidrichs v. Cal. Teachers Assoc., 578 U.S. 1 (2016). Our

dissenting colleague objects to this nomenclature, Dissent at

12-13, but there is no panel majority on the merits of the BIA’s

decision on withholding. One of us would deny the petition;

one would grant the petition and remand, and one would

dismiss based on a lack of jurisdiction. Thus, there are

insufficient votes to either adopt the BIA’s holding or disturb

it. The effect of our leaving intact the BIA decision is the same

that would result if this had been a direct appeal rather than a

petition for review, namely, an affirmance of the order, but it

lacks the weight of an affirmance because there is no majority

to support it.

3

I

Laureano, a citizen of the Dominican Republic, entered

the United States as a lawful permanent resident in 1994.

While in the United States, her partner physically abused and

threatened her when she tried to leave him. In 2005, he sent a

package containing drugs to her workplace. She was arrested

and cooperated with law enforcement. Laureano’s partner

threatened to kill her for “this act of betrayal.” AR 109.

In 2007, Laureano pled guilty to conspiracy to possess

with intent to distribute one kilogram or more of heroin in

violation of 21 U.S.C. § 846. After serving a twenty-four-

month sentence, Laureano was ordered removed from the

United States to the Dominican Republic in 2008. In 2009, she

unlawfully reentered the United States, where she remained

undetected until 2023. In 2023, she was arrested for having

unlawfully reentered the United States. Her prior removal

order was reinstated, Laureano thereafter applied for

withholding of removal and CAT relief because she feared her

former partner, who now resides in the Dominican Republic,

and she did not believe that police there would protect her.

The Immigration Judge (“IJ”) denied her applications.

As to her request for withholding of removal, the IJ found that

Laureano’s heroin-trafficking offense was a presumptive

“particularly serious crime” (“PSC”) under Y-L-, which she

could not rebut because her offense involved more than one

kilogram of heroin. As to her CAT claim, the IJ found that she

failed to show that her former partner would seriously harm her

if she returned to the Dominican Republic and that Dominican

officials would do nothing in response. The BIA adopted the

IJ’s decision in full and dismissed Laureano’s appeal.

4

Within a month, Laureano petitioned for this Court to

review the BIA’s decision, arguing that Y-L- violated the

Immigration and Nationality Act (“INA”) and that she was

entitled to CAT relief.

II

To begin, we must address our jurisdiction to review

Laureano’s petition.2

A

The INA requires that petitions for review “be filed not

later than 30 days after the date of the final order of removal.”

8 U.S.C. § 1252(b)(1). Laureano’s order of removal was

entered in 2008, and her reinstatement order was entered in

2023. Her 2024 petition for review was not filed within thirty

days of either of these orders, but the Government has not

pressed timeliness, Oral Argument at 1:19:30–36, and hence

2

The Government brought the jurisdictional question

that arose as a result of Riley v. Bondi, 606 U.S. 259, 273-75

(2025), to our attention via a letter submitted shortly before

oral argument. In that letter, the Government asked the Court

to “consider whether and to what extent the Riley decision

might impact the Court’s jurisdiction over this case.” Rule

28(j) Letter, Dkt. No. 58 (Sep. 26, 2025). Amicus filed a letter

in response, and the Court asked the parties about the subject

during oral argument. The parties submitted additional letters

at our request that set forth their views about our jurisdiction

over the withholding claim.

5

has waived enforcement of this non-jurisdictional deadline.

Riley v. Bondi, 606 U.S. 259, 273-75 (2025).

B

We have jurisdiction to review final orders of removal

under 8 U.S.C. § 1252(a)(1). Final orders of removal are

orders “concluding that the alien is deportable or ordering

deportation.” Riley v. Bondi, 606 U.S. 259, 267 (2025)

(quoting 8 U.S.C. § 1101(a)(47)(A)). Laureano’s petition

states that she seeks review of “the final order in withholding-

only proceedings entered by the [BIA] on July 22, 2024,”

which denied her requests for withholding of removal and CAT

relief. App. 1. Orders on withholding and CAT relief3 do not

affect removability but rather operate to bar removal to a

specific country while certain country conditions exist,4

Johnson v. Guzman Chavez, 594 U.S. 523, 531 (2021) (citing

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987)) (“If

an alien is granted withholding-only relief, DHS may not

3

Statutory withholding and CAT relief are both forms

of “withholding-only” relief. See Riley, 606 U.S. at 263;

Inestroza-Tosta v. Att’y Gen., 105 F.4th 499, 506 (3d Cir.

2024), abrogated on other grounds by Riley, 606 U.S. 259.

4

Neither statutory withholding or CAT “prevents DHS

‘from removing [the] alien to a third country other than the

country to which removal has been withheld or deferred.’”

Johnson v. Guzman Chavez, 594 U.S. 523, 531-32 (2021)

(alteration in original) (quoting 8 C.F.R. §§ 208.16(f),

1208.16(f)); see Nasrallah, 590 U.S. at 582 (“But the

noncitizen still ‘may be removed at any time to another country

where he or she is not likely to be tortured.’” (quoting 8 C.F.R.

§§ 1208.17(b)(2), 1208.16(f))).

6

remove the alien to the country designated in the removal order

unless the order of withholding is terminated.”); Nasrallah v.

Barr, 590 U.S. 573, 582 (2020) (“CAT relief means only that,

notwithstanding the order of removal, the noncitizen may not

be removed to the designated country of removal, at least until

conditions change in that country.”); 8 C.F.R.

§ 208.16(b)(1)(i)(A), and are thus themselves not removal

orders, Riley, 606 U.S. at 263 (discussing withholding-only

orders). Because the order denying Laureano CAT relief and

withholding of removal is not a final order of removal, we must

look elsewhere for jurisdiction.

In doing so, we consider the order that gave rise to

Laureano’s applications for statutory withholding and CAT

relief: the 2023 reinstatement order. The 2023 reinstatement

order held that she is “removable as an alien who has illegally

reentered the United States.” AR 321. To issue that order, the

immigration officer had to determine that (1) Laureano was

subject to a prior order of removal, (2) the individual before

him was Laureano, and (3) Laureano unlawfully reentered the

United States. 8 C.F.R. § 241.8(a). Only after making those

determinations could the immigration officer issue the

reinstatement order, which itself operates to remove Laureano

from the United States, meeting the definition of a final order

of removal. Riley, 606 U.S. at 267.5 Thus, as we held in

5

Riley did not involve a reinstated order of removal.

606 U.S. at 264-65. It defined order of removal as “an order

‘concluding that the alien is deportable or ordering

deportation,’” and concluded that an order unappealable to the

IJ or BIA is final upon its issuance. Id. at 267 (quoting 8 U.S.C.

§ 1101(a)(47)(A)). The 2023 reinstatement order here meets

those criteria as it concludes that Laureano is deportable “as an

7

United States v. Charleswell, § 1252(a)(1)’s jurisdictional

grant over final orders of removal extends to reinstated orders

of removal. 456 F.3d 347, 353 (3d Cir. 2006) (“[W]e consider

[a reinstated removal order] a final order of the INS and it

therefore falls within section 242’s jurisdictional grant.”); see

Dinnall v. Gonzales, 421 F.3d 247, 251 n.6 (3d Cir. 2005)

(same); Avila-Macias v. Ashcroft, 328 F.3d 108, 110 (3d Cir.

2003) (exercising jurisdiction under § 1252(a)(1) to review a

reinstated removal order). We therefore would have

jurisdiction under § 1252(a)(1) to review Laureano’s 2023

reinstated removal order.

Because Laureano does not explicitly seek review of her

reinstated removal order, we must determine whether we have

jurisdiction to review the orders that denied her request to

withhold her removal. Under Riley, we do.6 In Riley, the

petitioner challenged the denial of his application for CAT

relief but did not contest removability. 606 U.S. at 264-65.7

The Court, addressing the deadline for seeking review of final

alien who has illegally reentered,” AR 321, and is not

appealable to the agency, 8 U.S.C. § 1231(a)(5).

6

By holding that we have jurisdiction here, we depart

from Navarrete v. Bondi, 170 F.4th 1214 (9th Cir. 2026),

which primarily adopted the reasoning in Justice Thomas’s

Riley concurrence. The court has ordered the parties to brief

whether the case should be reheard en banc. Order, No. 24-

2776, Dkt. No. 56 (9th Cir. May 14, 2026).

7

Like Laureano’s, Riley’s petition for review neither

named nor attached a final order of removal. See Riley v.

Bondi, No. 23-1270, App. 45 (U.S. Jan. 3, 2025) (Riley’s

petition for review, attaching only the BIA’s order vacating the

IJ’s order that granted CAT relief).

8

removal orders, held that, absent waiver of that deadline,

petitioners must file for review within thirty days of a final

order of removal, even if their applications for withholding-

only relief have not yet been decided. Id. at 272. The Court

recognized that this rule presented a practical problem:

petitioners like Riley who wish to challenge withholding-only

determinations but not removability must petition for review

before those withholding-only determinations are made. To

address this problem, the Court suggested that once a final

order of removal is issued, the petitioner can petition for

review, despite having no challenge to removability, and the

court of appeals can hold the matter until “the withholding

issue is ready for review.” Id. This demonstrates that the

Supreme Court had no doubt that courts of appeals have

jurisdiction8 to review withholding-only rulings independent

of any substantive review of final orders of removal.9

8

For such review to be procedurally proper, either the

petition must have been filed within thirty days of a final

removal order, or the Government must have waived or not

pressed any untimeliness issue. Riley, 606 U.S. at 267-77.

That requirement, however, has no bearing on the court of

appeals’s jurisdiction. Id.

9

Consistent with Riley’s contemplation of jurisdiction

to review withholding-only determinations absent a challenge

to removability, we have, both before and after Riley,

exercised jurisdiction under § 1252(a)(1) when petitioners

subject to final orders of removal do not challenge

removability but rather seek review of denials of asylum,

statutory withholding, or CAT protection. See, e.g., Gomez-

Gabriel v. Att’y Gen., 146 F.4th 327, 329-30 & n.1 (3d Cir.

2025) (per curiam) (deciding petition for review of a BIA order

that “affirm[ed], without opinion,” the IJ’s denial of

9

withholding of removal although that BIA order did not

explicitly order removal); Manuel-Soto v. Att’y Gen., 121

F.4th 468, 470 (3d Cir. 2024); Argueta-Orellana v. Att’y Gen.,

35 F.4th 144, 146-47 (3d Cir. 2022) (reviewing, under

§ 1252(a)(1), BIA decision that dismissed appeal but did not

order removal); Carneiro v. Att’y Gen., No. 25-1060, 2025 WL

3281409, at *1 & n.1 (3d Cir. Nov. 25, 2025) (not

precedential); Lopez-Villeda v. Att’y Gen., No. 24-2916, 2026

WL 788904, at *1-2 (3d Cir. Mar. 20, 2026) (not precedential).

These cases, in which the petitioners conceded

removability, show that a challenge to a noncitizen’s

removability determination is not a prerequisite for our

jurisdiction. The petitioners in these cases sought asylum in

addition to CAT relief and withholding. Asylum differs from

withholding and CAT relief because it allows a removable

individual to remain in the United States, as opposed to barring

removal to a specific country, but like CAT relief and

withholding, it “does not convey a right to remain permanently

in the United States, and may be terminated” due to changed

circumstances. 8 U.S.C. § 1158(c)(2); Guzman Chavez, 594

U.S. at 536 (providing that withholding-only relief does not

afford permanent right to remain); see Paripovic v. Gonzales,

418 F.3d 240, 244 (3d Cir. 2005). Specifically, if the Attorney

General determines that . . . owing to a fundamental change in

circumstances,” such as the asylum recipient no longer has a

well-founded fear of persecution on account of a protected

ground in their country of nationality, asylum status may be

terminated and removal ordered. 8 U.S.C. §§ 1101(a)(42)(A),

1158(c)(2) & (3). Thus, as in cases seeking review of orders

denying withholding of removal and CAT, review of an order

denying asylum can be sought although removability is

conceded or under challenged. Put more simply, our exercise

10

Furthermore, like Laureano, the petitioner in Riley

sought review of a withholding-only determination, without

contesting removability or challenging a final order of

removal. The Supreme Court remanded Riley to the court of

appeals for further proceedings, necessarily concluding that the

court of appeals had jurisdiction.10 The Court also noted that

“if the Government makes a general practice of . . . declining

to press for enforcement of the 30-day filing rule,” petitioners

like Riley “will not be hurt.” Id. Because we are faced with

the same circumstances, we also have jurisdiction here to

review Laureano’s withholding of removal and CAT orders.11

of jurisdiction in such cases is not contingent on a challenge to

removability.

10

The Supreme Court necessarily considered the court

of appeals’s jurisdiction, as (1) the decision on review was a

dismissal for lack of jurisdiction (albeit on untimeliness

grounds), Riley v. Garland, No. 22-1609, 2024 WL 1826979,

at *1 (4th Cir. Apr. 26, 2024), cert. granted, 145 S. Ct. 435

(2024), and vacated and remanded sub nom. Riley, 606 U.S.

259, and (2) the concurrence specifically raised the issue of

jurisdiction, Riley, 606 U.S. at 278 (Thomas, J., concurring).

Because we are obligated to ensure that we have subject matter

jurisdiction, it is irrelevant whether the parties briefed and

argued the jurisdictional issue. Gonzalez v. Thaler, 565 U.S.

134, 141 (2012) (“When a requirement goes to subject-

matter jurisdiction, courts are obligated to consider sua

sponte issues that the parties have disclaimed or have not

presented.”).

11

The so-called “zipper clause,” 8 U.S.C. § 1252(b)(9),

does not interfere with our jurisdiction. It provides:

[j]udicial review of all questions of law and fact

. . . arising from any action taken or proceeding

11

C

The above reasons support our jurisdiction to review

both the withholding of removal and CAT orders. In addition,

other statutory provisions confirm our jurisdiction over the

CAT order specifically. First, 8 U.S.C. § 1252(a)(4) is a

source of jurisdiction to review the CAT order. It provides, in

relevant part, that “[n]otwithstanding any other provision of

law . . . a petition for review filed with an appropriate court of

appeals in accordance with this section shall be the sole and

exclusive means for judicial review of any cause or claim under

the [CAT].” § 1252(a)(4). The phrase “sole and exclusive

means for judicial review of any cause or claim under the

[CAT]” grants appellate courts jurisdiction to review CAT

brought to remove an alien from the United

States under this subchapter shall be available

only in judicial review of a final order under this

section. Except as otherwise provided in this

section, no court shall have jurisdiction . . . by

any other provision of law . . . to review such an

order or such questions of law or fact.

In short, the zipper clause provides that questions arising from

removal proceedings may be reviewed only in judicial review

of a final order under § 1252. As explained herein, this Court

reviews withholding-only determinations pursuant to our

power to review final orders of removal, including reinstated

removal orders, under § 1252(a)(1). Thus, that review is

conducted “in review of a final order” under § 1252.

Although the Riley concurrence raised the zipper clause

as an obstacle to jurisdiction in the court of appeals, 606 U.S.

at 279-80 (Thomas, J., concurring), the Majority of the Court

obviously disagreed as it remanded for further appellate court

proceedings, id. at 277.

12

orders. F.J.A.P. v. Garland, 94 F.4th 620, 627-28 (7th Cir.

2024) (“[Section 1252(a)(4)] makes [the BIA’s withholding-

only] decisions reviewable by a court of appeals”), abrogated

on other grounds by Riley, 606 U.S. 259; see also Nasrallah,

590 U.S. at 580-81 (“[Section 1252(a)(4)] provided that CAT

orders . . . may be reviewed only in the courts of appeals.”); id.

at 585 (“[Section] 1252(a)(4) . . . provides for direct review of

CAT orders in the courts of appeals.”).12 In short, § 1252(a)(4)

provides courts of appeals jurisdiction to review CAT orders.

Second, the Foreign Affairs Reform and Restructuring

Act of 1998 (“FARRA”), does not restrict that jurisdiction.

The Statutory Note to FARRA provides, in relevant part:

[n]otwithstanding any other provision of law, . .

. nothing in this section shall be construed as

providing any court jurisdiction to consider or

review claims raised under the [CAT] or this

section, or any other determination made with

respect to the application of the policy set forth

in subsection (a), except as part of the review of

a final order of removal pursuant to [8 U.S.C.

§ 1252].

§ 2242, 112 Stat. 2681-822, note following 8 U.S.C. § 1231.

Read in its entirety, this note states that § 1231 shall not be

12

The Court of Appeals for the Fourth Circuit held in

Riley that § 1252(a)(4) “means only that we may review an

order denying CAT relief as part of our review of a final order

of removal,” 2024 WL 1826979, at *2, and the Supreme Court,

although it did not specify the basis for the Court of Appeals’s

jurisdiction, nonetheless vacated and remanded for further

proceedings despite the absence of a challenge to a final order

of removal. Riley, 606 U.S. at 263-65.

13

construed as providing jurisdiction, but it does not eliminate

jurisdiction that may be provided elsewhere. As a result, when

jurisdiction can be found outside of § 1231, FARRA does not

deprive a federal court of jurisdiction to review CAT claims

independently from final orders of removal. Because we do

not rely on any part of § 1231 for jurisdiction, FARRA has no

bearing on our jurisdiction here.

For these additional reasons, this Court has jurisdiction

to review Laureano’s CAT order.

III

Although we have jurisdiction to review the CAT order

here, there is no basis to disturb the BIA’s conclusion denying

Laureano CAT relief. To qualify for this relief, Laureano must

show it is more likely than not that (1) she will be tortured if

removed to the Dominican Republic, 8 C.F.R. § 1208.16(c)(2),

and (2) government officials will cause or acquiesce to the

feared torture, 8 C.F.R. § 208.18(a)(1). See Saban-Cach v.

Att’y Gen., 58 F.4th 716, 733 (3d Cir. 2023). The BIA

correctly concluded that Laureano failed to show she would

suffer torture if removed to the Dominican Republic. Even

assuming the events she described meet the legal definition of

torture,13 these incidents occurred approximately fifteen years

13

Under CAT, torture is: (1) an act causing

severe physical or mental pain or suffering; (2)

intentionally inflicted; (3) for an illicit or

proscribed purpose; (4) by or at the instigation of

or with the consent or acquiescence of a public

official who has custody or physical control of

the victim; and (5) not arising from lawful

sanctions.

14

ago. Because her former partner did not force her into a

relationship or beat her when they were together and given the

passage of time since their last encounter, the BIA did not err

in concluding Laureano did not show she would face torture if

removed to the Dominican Republic. Cf. Radiowala v. Att’y

Gen., 930 F.3d 577, 586 (3d Cir. 2019) (considering passage

of time when evaluating whether likelihood of future torture

was speculative). We will therefore deny her petition for

review of the CAT order.

IV

I now turn to Laureano’s assertion that the presumption

set forth in Matter of Y-L- is without basis and that it should

not have prevented her from obtaining statutory withholding of

removal under 8 U.S.C. § 1231(b)(3)(B).14 For avoidance of

Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017) (quoting

Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005)); see also

8 C.F.R. § 1208.18(a)(1).

14

A noncitizen subject to removal may obtain

withholding of removal where “the Attorney General decides

that [her] life or freedom would be threatened in that country

[of removal] because of [a protected statutory ground].” 8

U.S.C. § 1231(b)(3)(A). However, a noncitizen who has been

convicted of a PSC is deemed “a danger to the community of

the United States,” id. § 1231(b)(3)(B)(ii), and thus ineligible

for such relief.

Contrary to Laureano’s contention, the statute does not

require a separate finding of dangerousness. First, the statute’s

plain language provides that a noncitizen convicted of a PSC

is a danger because the past participle, “having been

convicted” of a PSC, modifies “alien,” and thus limits those

15

who are a danger to those noncitizens who have been convicted

of a PSC. 8 U.S.C. § 1231(b)(3)(B)(ii); see Martins v. I.N.S.,

972 F.2d 657, 660 (5th Cir. 1992) (relying on grammar and

structure of the “participle phrase ‘having been convicted by a

final judgment of a [PSC],’” to conclude that no separate

dangerousness finding is necessary). Moreover, “the statute . .

. does not connect its two clauses with a conjunction; rather the

statute sets forth a cause and effect relationship[, so] the fact

that the alien has committed a [PSC] makes the alien dangerous

within the meaning of the statute.” Crespo-Gomez v. Richard,

780 F.2d 932, 934 (11th Cir. 1986); see also Ramirez-Ramos

v. I.N.S., 814 F.2d 1394, 1397 (9th Cir. 1987) (noting the

same); Garcia v. I.N.S., 7 F.3d 1320, 1323 (7th Cir. 1993)

(same). Applying these basic grammar rules, the text plainly

requires only one finding—that the individual was convicted

of a PSC—which in turn makes her a danger to the community.

Cf. Nielsen v. Preap, 586 U.S. 392, 408 (2019) (noting that

“‘rules of grammar govern’ statutory interpretation ‘unless

they contradict legislative intent or purpose’” (quoting A.

Scalia & B. Garner, Reading Law: The Interpretation of Legal

Texts 140 (2012))).

Second, multiple courts of appeals have reached this

conclusion based on either the text, e.g., Yousefi v. U.S. I.N.S.,

260 F.3d 318, 327 (4th Cir. 2001); Kofa v. I.N.S., 60 F.3d

1084, 1088-89 (4th Cir. 1995) (holding the statute plainly

means that an individual “constitutes a danger to the

community because he has been convicted of a [PSC],” and

thus “once the [PSC] determination is made, the [noncitizen]

is ineligible for withholding without a separate finding on

dangerousness”); Martins, 972 F.2d at 661 (holding “the

statute only requires the factual finding of conviction of a

[PSC] to support the determination of danger to the

16

community” (internal quotations marks and citation omitted)),

or Chevron deference, e.g., Denis v. Att’y Gen., 633 F.3d 201,

215 n.19 (3d Cir. 2011) (holding that, “[o]nce an alien is found

to have committed a [PSC], [the BIA] no longer engage[s] in a

separate determination to address whether the alien is a danger

to the community,” thus concluding that “neither the IJ nor the

BIA, nor [the Court], need to opine as to [the petitioner’s]

potential danger to the community” (quoting In re N-A-M-, 24

I. & N. Dec. 336, 342 (BIA 2007)); Nkomo v. Att’y Gen., 930

F.3d 129, 135 (3d Cir. 2019) (rejecting argument that the BIA

erred in failing to address whether petitioner was a danger to

the community because that argument “is foreclosed by

precedent” (citing Denis, 633 F.3d at 215 n.19)); Hamama v.

I.N.S., 78 F.3d 233, 240 (6th Cir. 1996); Ahmetovic v. I.N.S.,

62 F.3d 48, 53 (2d Cir. 1995) (expressing doubt regarding the

interpretation that no separate finding is required but

nonetheless deferring to the BIA’s interpretation as

reasonable); Garcia, 7 F.3d at 1323; Al-Salehi v. I.N.S., 47

F.3d 390, 396 (10th Cir. 1995); Mosquera-Perez v. I.N.S., 3

F.3d 553, 559 (1st Cir. 1993); Ramirez-Ramos, 814 F.2d at

1397. Loper Bright does not displace all earlier precedent that

relied on Chevron, particularly where, as here, the agency’s

interpretation is consistent with the statute’s text. See Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024) (noting

the overruling of Chevron does “not call into question prior

cases that relied on the Chevron framework”); see also Miller,

114 F.4th at 502 (holding that, as part of the Court’s

responsibility to “determine the meaning of statutory

provisions,” it “may look to the [agency’s] interpretations as a

body of experience and informed judgment”) (internal

quotation marks and citations omitted). Finally, the Attorney

General’s regulations are consistent with the text and our

17

any doubt, this section of the opinion presents only my view

and is included here simply to limit the number of separate

writings in this case.15

Section 1231(b)(3)(B) provides:

an alien who has been convicted of an aggravated

felony (or felonies) for which the alien has been

sentenced to an aggregate term of imprisonment

of at least 5 years shall be considered to have

committed a [PSC]. The previous sentence shall

not preclude the Attorney General from

determining that, notwithstanding the length of

sentence imposed, an alien has been convicted of

a [PSC].

8 U.S.C. § 1231(b)(3)(B). In the first sentence, the statute

identifies a category of aggravated felonies—those that result

in a sentence of at least five years—that are per se PSCs.

§ 1231(b)(3)(B). The second sentence provides that

the Attorney General may determine that the noncitizen’s

crime is a PSC “notwithstanding the length of sentence

imposed.” § 1231(b)(3)(B). Relying on the second sentence,

the Attorney General opined that drug trafficking crimes are

presumptively PSCs, and the presumption is rebutted only in

“extraordinary and compelling” circumstances. Y-L-, 23 I. &.

N. Dec. at 271 n.2, 274. Specifically, the noncitizen must show

interpretation of it. 8 C.F.R. § 1208.16(d)(2) (stating that an

individual convicted of a PSC “shall be considered to

constitute a danger to the community”).

15

As noted above, the two panel members who hold we

have jurisdiction to review the withholding order here are split

as to the merits of the request for review.

18

the presence of six criteria to rebut the presumption,16 and only

then may the agency consider “whether other, more unusual

circumstances . . . might justify departure from the default

interpretation that drug trafficking felonies are [PSCs].” Id. at

277.

In Bastardo-Vale v. Attorney General, we held that,

when an individual’s crime was not an aggravated felony

resulting in a sentence of at least five years, and therefore not

a per se PSC under § 1231(b)(3)(B), the Attorney General may

still determine whether that crime is a PSC by conducting a

case-by-case assessment. 934 F.3d 255, 266 (3d Cir. 2019) (en

banc); see also Amos v. Att’y Gen., 157 F.4th 313, 328 (3d Cir.

2025) (observing that if the crime’s elements make it

potentially a PSC, the agency then considers “the noncitizen’s

specific conduct when committing the offense” to determine

whether, in that case, the offense was actually a PSC). Among

16

The criteria include, at minimum:

(1) a very small quantity of controlled substance;

(2) a very modest amount of money paid for the

drugs in the offending transaction; (3) merely

peripheral involvement by the alien in the

criminal activity, transaction, or conspiracy; (4)

the absence of any violence or threat of violence,

implicit or otherwise, associated with the

offense; (5) the absence of any organized crime

or terrorist organization involvement, direct or

indirect, in relation to the offending activity; and

(6) the absence of any adverse or harmful effect

of the activity or transaction on juveniles.

Y-L-, 23 I. & N. Dec. at 276-77.

19

other considerations, we reasoned that the first sentence clearly

limited the designation of per se PSCs to aggravated felonies

resulting in at least five years’ imprisonment, and the second

sentence expressly granted the Attorney General the ability to

deem an offense outside the per se category a PSC. Id. at 266-

67. We presumed that Congress passed the withholding statute

with knowledge of the BIA’s practice of conducting

individualized PSC assessments and did not intend to disturb

that practice for crimes that were not statutorily per se PSCs.

Id. at 266.

This interpretation aligns with the statute’s plain

language, structure, and purpose. See United States v.

Husmann, 765 F.3d 169, 173 (3d Cir. 2014) (“Interpretation of

a word or phrase depends upon reading the whole statutory

text, considering the purpose and context of the statute, and

consulting any precedents or authorities that inform the

analysis.”). As to plain language, the text focuses on whether

a noncitizen has committed “a” PSC, indicating that Congress

envisioned the Attorney General would focus his inquiry on

the individual’s crime, not a category of crimes. See Annor v.

Garland, 95 F.4th 820, 829 (4th Cir. 2024) (noting the agency

must consider, among other things, “whether the type and

circumstances of the crime indicate that the [noncitizen] will

be a danger to the community” because key to the PSC

determination “is whether it indicates that the respondent poses

a danger to the community”).

The statutory structure further confirms that the

provision grants the Attorney General authority to make

individualized PSC determinations, not categorical ones.

Unlike the withholding statute, the asylum statute allows the

Attorney General to “designate by regulation offenses that will

20

be considered to be [PSCs].” 8 U.S.C. § 1158(b)(2)(B)(ii).

The asylum statute’s express authorization that the Attorney

General may create offense categories that per se qualify as

PSCs by regulation demonstrates Congress knew how to grant

such authority to the Attorney General but chose not to do so

in the withholding statute. See Bittner v. United States, 598

U.S. 85, 94 (2023) (“When Congress includes particular

language in one section of a statute but omits it from a

neighbor, we normally understand that difference in language

to convey a difference in meaning.”). This choice shows

Congress intended the Attorney General to exercise his

authority to deem crimes PSCs for statutory withholding

purposes on a case-by-case basis rather than through generally

applicable rules. See Bastardo-Vale, 934 F.3d at 265-66

(noting distinctions in asylum and withholding statutes for

purposes of PSC determinations).

This interpretation is also consistent with the statute’s

purpose. Interpreting a prior version of the statute, the BIA

adopted an individualized inquiry for determining whether a

noncitizen committed a PSC. See Matter of Frentescu, 18 I. &

N. Dec. 244, 244 (BIA 1982). In response, Congress amended

the statute by inserting a provision declaring all aggravated

felonies PSCs, thus rendering all such felons ineligible for

withholding of removal and eliminating the BIA’s

individualized consideration for those who committed such

crimes. 8 U.S.C. § 1253(h) (1990); Immigration Act of 1990,

Pub. L. 101-649, § 514, 104 Stat. 4978, 5053 (Nov. 29, 1990).

In 1996, Congress amended the statute to give the Attorney

General discretion to depart from that ban and grant statutory

withholding to a noncitizen if doing so was necessary to

comply with international law. Pub. L. 104-132, § 413, 110

Stat. 1214, 1269 (Apr. 24, 1996). Later that year, Congress

21

enacted the statute at issue here, creating one category of per

se PSCs, comprised of aggravated felonies resulting in a

sentence of at least five years, but not precluding the Attorney

General from concluding that a crime outside of that category

was a PSC. 8 U.S.C. § 1231(b)(3)(B). This history shows

Congress’s desire to reinstate the agency’s prior practice of

assessing certain crimes on a case-by-case basis.17 Frentescu,

18 I. & N. Dec. at 244; see Bastardo-Vale, 934 F.3d at 266

(noting that Congress’s “explicit statement that the Attorney

General had the continuing authority to determine whether a

crime is particularly serious” demonstrated its intent to not

disturb the “prior practice of deciding, on a case-by-case basis,

whether an alien’s crime was particularly serious”); cf. Chong

v. Dist. Dir., I.N.S., 264 F.3d 378, 387 (3d Cir. 2001) (holding

that due process requires an “individualized determination”

17

This is also how the BIA interpreted the 1996

amendment. After Congress removed the categorical

requirement that all aggravated felonies were PSCs, the BIA

reinstituted its prior practice of conducting “individual

examination[s] of the nature of the conviction, the sentence

imposed, and the circumstances and underlying facts of the

conviction” for all crimes except those in the per se category.

In re L-S-, 22 I. & N. Dec. 645, 645 (BIA 1999) (citing In re

S-S-, 22 I. & N. Dec. 458, 458 (BIA 1999)); Frentescu, 18 I. &

N. Dec. at 244). I consider this interpretation only insofar as

the BIA’s interpretation of a term has “shaped our

jurisprudence over the years.” Miller Plastic Prods. Inc v. Nat’l

Lab. Rels. Bd., 141 F.4th 492, 503 (3d Cir. 2025); see also

Loper Bright, 603 U.S. at 388 (noting the courts’ practice of

giving “great weight” to the “informed judgment of the

Executive Branch—especially in the form of an interpretation

issued contemporaneously with the enactment of the statute”).

22

rather than “blindly following a categorical rule, i.e., that all

drug convictions qualify as [PSCs]”).18 Put differently, this

history demonstrates the current statute’s purpose was to

foreclose individualized consideration for one category of

aggravated felonies, but maintain individualized consideration

for crimes outside of that category.

For these reasons, the first sentence of § 1231(b)(3)(B)

designates a category of crimes that per se constitute PSCs

based on the sentence imposed. § 1231(b)(3)(B). The second

sentence focuses on the noncitizen herself and the crime she

committed. Id. Thus, to deem a crime outside of the statutorily

enumerated per se category a PSC, the statute contemplates an

individualized assessment.19

18

Chong also supports interpreting the withholding

statute to require an individualized PSC assessment because it

held that due process mandates such an assessment. 264 F.3d

at 386-87.

19

Our sister circuit courts who have considered this

issue have also concluded that the statute contemplates a case-

by-case evaluation, not categorical rules, to determine whether

crimes that were not aggravated felonies resulting in a sentence

of at least five years are PSCs. Blandino-Medina v. Holder,

712 F.3d 1338, 1345 (9th Cir. 2013) (holding that “Congress

has clearly expressed its intent: the overall structure of the INA

compels the conclusion that Section 1231(b)(3)(B)(iv)

establishes but one category of ‘per se’ [PSC]s, and requires

the agency to conduct a case-by-case analysis of convictions

falling outside the category established by Congress”); N-A-

M- v. Holder, 587 F.3d 1052, 1056 (10th Cir. 2009) (observing

that the “long history of case-by-case determination of [PSCs]

counsels against [the] attempt to craft a bright-line rule”);

23

Y-L- is inconsistent with such an assessment. Y-L-

created a presumption that a specific class of crimes, drug

trafficking felonies, are PSCs unless six specific facts are

proven. 23 I. & N. at 276-77. A presumption is “something

thought to be true because it is highly probable.” Presumption,

Black’s Law Dictionary (12th ed. 2024). Indeed, “the most

important consideration in the creation of [a] presumption[] is

probability” and “[m]ost presumptions come into existence

primarily because judges have believed that proof of fact B

renders the inference of the existence of fact A so probable that

it is sensible and time saving to assume the truth of fact A until

the adversary disproves it.” Malack v. BDO Siedman, 617

F.3d 743, 749 (3d Cir. 2010) (quotation marks and citation

omitted). Thus, presumptions arise from inferences drawn

from past experiences unrelated to the specific individual or

circumstance before the court and therefore result in decisions

that are not individualized. Cf. Gall v. United States, 552 U.S.

38, 50 (2007) (observing that applying a presumption is not an

individual assessment).

Y-L-’s mandatory presumption20 does just that, thereby

directing categorial determinations that run contrary to

Yousefi v. U.S. I.N.S., 260 F.3d 318, 330 (4th Cir. 2001)

(vacating BIA’s decision as arbitrary and capricious for failing

to make an individualized assessment and remanding for

reconsideration of the PSC issue).

20

Y-L- created a mandatory presumption as it

requires—and does not merely permit—the IJ to reach a

conclusion absent rebuttal evidence aside from evidence of the

six factors required to rebut the presumption. Cf. Baghad v.

Att’y Gen., 50 F.4th 386, 389-90 (3d Cir. 2022) (noting that

courts treated a particular presumpting as permissive where the

24

§ 1231(b)(3)(B), which as explained, contemplates a case-by-

case examination of whether a crime that is not an aggravated

felony resulting in a sentence of at least five years is a PSC. 8

U.S.C. § 1231(b)(1)(B); cf. Zebley v. Bowen, 855 F.2d 67, 71,

76 (3d Cir. 1988) (holding a regulation providing that a child

is deemed disabled only if his impairment meets criteria listed

in the regulation, regardless of the actual impairment’s

severity, does not provide an individualized assessment as

required by the Social Security statute). Directing IJs to

conclude that any drug trafficking crime is a PSC when any of

the six criteria are not proven constrains IJs from considering

mitigating factors or explanations in making PSC

determinations.21 In this very case, because Laureano’s

offense of conviction involved one or more kilograms of

heroin—and hence could not be deemed a “very small”

quantity, Y-L-, 23 I. &. N. Dec. at 276— she was deemed to

court did not “require a jury or judge to reach certain

conclusions absent rebuttal evidence”). It therefore provides

more than “guidance” to IJs, Concurrence at 6, and it requires

an individualized assessment of crimes outside the per se

category only if the six criteria are present. If they are not, it

necessarily categorizes the crime as a PSC, leading to the

denial of withholding without consideration of any other

individualized circumstances.

21

Since Y-L-, albeit in a case outside the drug

trafficking context, the Attorney General has announced that

adjudicators may consider an individual’s mental health in

making PSC determinations, demonstrating the agency’s

recognition that individual factors, rather than blanket rules,

are relevant when evaluating convictions that are not for

aggravated felonies resulting in a sentence of at least five years.

In re B-Z-R, 28 I. & N. Dec. 563, 567 (Op. Att’y Gen. 2022).

25

have committed a PSC and was unable to offer evidence

explaining the circumstances of her involvement, including

duress or coercion. Such evidence may have led the IJ to

conclude that Laureano did not commit a PSC,22 and because

Y-L- precludes considering such individual evidence, it is

contrary to § 1231(b)(3)(B).

While the Attorney General may provide guidance on

PSC determinations and may have acted within his discretion

had he said the Y-L- criteria could be considered as non-

exhaustive factors, the use of a mandatory presumption—

rebuttable by proof of only six specific facts—was tantamount

to creating a categorical rule barring individualized evaluation.

See Malack, 617 F.3d at 749. Thus, by creating Y-L-’s

presumption to guide the PSC determination, the Attorney

General acted outside the statute’s grant of authority to make

case-by-case evaluations on this subject. 23 I. & N. at 276-77;

see DeCarvalho v. Garland, 18 F.4th 66, 71 (1st Cir. 2021)

(questioning the applicability of Y-L- given “Congress’s

increasingly nuanced view of drug trafficking offenses”).

Therefore, reliance on the Y-L- presumption was legal error,

and I would grant the petition to review the withholding ruling

and remand for the BIA to review the claim without applying

the Y-L presumption.

V

For these reasons, the petition for review is denied.

22

Indeed, the BIA acknowledged that the presumption

precluded it from considering Laureano’s “sympathetic and

extenuating circumstances.” AR 6.

26

Patria Laureano v. Attorney General United States of America

No. 24-2433

FISHER, Circuit Judge, concurring and dissenting.

Patria Laureano asks us to review the Board of

Immigration Appeals’ order denying withholding of removal

and relief under the Convention Against Torture (CAT). I

concur that we have jurisdiction, that the BIA correctly denied

CAT relief, and that we should deny the petition for review.

Accordingly, I join in full Parts I, II, III, and V of the opinion

of the Court. However, because the BIA correctly denied

withholding of removal by relying on the presumption

announced in Matter of Y-L-, 23 I. & N. Dec. 270 (A.G. 2002),

I respectfully dissent from Part IV of the opinion of the Court.

A noncitizen may not be removed to a country where

that individual’s “life or freedom would be threatened . . .

because of . . . race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. §

1231(b)(3)(A). Congress narrowed this already slight

exception by barring withholding for any noncitizen who

“having been convicted by a final judgment of a particularly

serious crime is a danger to the community.” Id. §

1231(b)(3)(B)(ii); see also 8 C.F.R. § 208.16(d)(2). When

Congress first added this provision to the Immigration and

Nationality Act, it gave no definition of what counted as a

“particularly serious crime,” instead “leaving it for the

Attorney General to define.” Miguel-Miguel v. Gonzales, 500

F.3d 941, 945 (9th Cir. 2007). The Attorney General delegated

that authority to the BIA, which established a multi-factor test

to determine whether a given crime was particularly serious.

Id. (citing Matter of Frentescu, 18 I. & N. Dec. 244, 244

(B.I.A. 1982)).

1

Partially overruling this approach in 1990, Congress

adopted a categorical rule that classified all aggravated felonies

as particularly serious crimes, which “preclud[ed] case-by-case

analysis.” Id. at 946 (citing Immigration Act of 1990, Pub. L.

101–649, § 515, 104 Stat. 4978, 5053 (Nov. 29, 1990)). A few

years later, Congress replaced this “categorical rule” with a

rebuttable “presumption that aggravated felonies are

particularly serious.” Id. (citing Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104–132, § 413(f), 110

Stat. 1214, 1269 (Apr. 24, 1996)). Finally, Congress settled on

the two-tiered approach that governs today:

[A]n alien who has been convicted of an

aggravated felony (or felonies) for which the

alien has been sentenced to an aggregate term of

imprisonment of at least 5 years shall be

considered to have committed a particularly

serious crime. The previous sentence shall not

preclude the Attorney General from determining

that, notwithstanding the length of sentence

imposed, an alien has been convicted of a

particularly serious crime.

Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Pub. L. 104-208, 110 Stat. 3009-602 (codified as

amended at 8 U.S.C. § 1231(b)(3)(B)).

In 2002, the Attorney General invoked his authority

under § 1231(b)(3)(B) when he decided Matter of Y-L-,

announcing a presumption that “aggravated felonies involving

unlawful trafficking in controlled substances” are

“presumptively” particularly serious crimes regardless of the

length of the sentence imposed. Matter of Y-L-, 23 I. & N. Dec.

at 274. A noncitizen can rebut this presumption by showing

“extraordinary and compelling circumstances,” which requires

2

satisfaction of all of six enumerated criteria.1 Id. at 276–77; see

also Park v. Garland, 72 F.4th 965, 975 (9th Cir. 2023).

Because Laureano, who was convicted for conspiracy to

possess and distribute one kilogram or more of heroin,

“provided no evidence to show what amount of heroin she

possessed,” the BIA found that she could not establish that her

offense involved “a very small quantity of controlled

substance,” one of the criteria under Matter of Y- L-. Admin.

Rec. 4.

Each party agrees that the statute “unquestionably

delegates discretion to the agency to determine that

‘notwithstanding the length of sentence imposed, [a

noncitizen] has been convicted of a particularly serious

crime.’” Pet’r Br. 36 (alteration in original) (quoting 8 U.S.C.

§ 1231(b)(3)(B)); see also Resp’t Br. 18. This understanding

aligns with our past interpretation of § 1231(b)(3)(B) as an

1

The six criteria are:

(1) a very small quantity of controlled substance;

(2) a very modest amount of money paid for the

drugs in the offending transaction; (3) merely

peripheral involvement by the alien in the

criminal activity, transaction, or conspiracy; (4)

the absence of any violence or threat of violence,

implicit or otherwise, associated with the

offense; (5) the absence of any organized crime

or terrorist organization involvement, direct or

indirect, in relation to the offending activity; and

(6) the absence of any adverse or harmful effect

of the activity or transaction on juveniles.

Matter of Y- L-, I & N Dec. 270 at 276–77.

3

express delegation to the Attorney General. See Denis v. Att’y

Gen., 633 F.3d 201, 214 (3d Cir. 2011) (“The statute itself

expressly grants the Attorney General discretion to decide

whether an alien committed a particularly serious crime . . . .”).

Therefore, we must “ensur[e] the agency has engaged in

‘reasoned decisionmaking’ within th[e] boundaries” of that

delegated authority. Loper Bright Enters. v. Raimondo, 603

U.S. 369, 395 (2024) (quoting Michigan v. EPA, 576 U.S. 743,

750 (2015)).

The INA provides “no textual or contextual indicators”

limiting “how the [Attorney General] should determine

whether an alien has committed a ‘particularly serious crime.’”

Denis, 633 F.3d at 214 (quoting Chong v. INS, 264 F.3d 378,

387 (3d Cir. 2001)). Nonetheless, Laureano insists that

§ 1231(b)(3)(B) delegates authority “to immigration judges

and the BIA to determine,” but only “on a case-by-case basis,

whether an aggravated felony with a sentence of less than five

years, or a crime that is not an aggravated felony, warrants such

designation.” Pet’r Br. 33. But Laureano’s reading clashes with

Congress’s express delegation of authority to the “Attorney

General,” not to “immigration judges and the BIA.” Compare

8 U.S.C. § 1231(b)(3)(B) with Pet’r Br. 33. In any event, by

requiring consideration of the six criteria, Matter of Y- L-

necessarily requires an “individualized assessment” of

convictions falling outside the per se category established by

Congress. Maj. Op. Part IV.

Here, for example, the IJ discussed the individual facts

surrounding Laureano’s conspiracy conviction, including a

five-page explanation of Laureano’s testimony and why it was

credible. The IJ acknowledged that Laureano alleged she never

took possession of the drugs and that she had no advance

knowledge that the package was being mailed to her.

Nevertheless, the IJ noted that Laureano did not provide

4

testimony or otherwise demonstrate that the crime involved

only a small quantity of drugs. Applying these case-specific

facts to the framework established in Matter of Y-L-, the IJ

determined that Laureano’s conspiracy conviction is a

particularly serious crime.

Judge Shwartz concludes that the “plain text” of

§ 1231(b)(3)(B) “focuses on whether a noncitizen has

committed ‘a’ [particularly serious crime],” which “indicat[es]

that Congress envisioned the Attorney General would focus his

inquiry on the individual’s crime, not a category of crimes.”

Maj. Op. Part IV. But a careful review of the first sentence of

that subsection, which also uses a singular “a,” contradicts that

logic: a noncitizen “who has been convicted of an aggravated

felony (or felonies) for which the alien has been sentenced to

an aggregate term of imprisonment of at least 5 years”—a

category of crimes—has committed “a particularly serious

crime.” 8 U.S.C. § 1231(b)(3)(B) (emphasis added). The focus

is indeed on whether a noncitizen committed “a” particularly

serious crime, but nothing in the text indicates the Attorney

General cannot categorize various types of crimes in making

that determination.

Under Matter of Y-L-, rebutting the presumption is

undeniably difficult. But contrary to Laureano’s suggestion,

Matter of Y-L- does not impose an “impossible burden” or a

second “per se rule.” Pet’r Br. 14, 27. The Attorney General

did not instruct IJs to deny all withholding applications by

convicted drug traffickers. See Matter of Y-L-, 23 I. & N. Dec.

at 276. Instead, he explicitly stated that he was not creating a

per se category of “particularly serious crimes” because he

wanted to leave open the possibility of rebuttal. Id. The

presumption “is just that—a presumption” that “can be

rebutted.” Arellano v. McDonough, 598 U.S. 1, 6 (2023). And

as the Government points out, noncitizens have indeed

5

succeeded in rebutting the presumption. See Resp’t Br. 31–32

(citing Supp. App. 2, 5, 20–24, 40); see also id. at 32 n.8

(“Additionally, DHS has provided [Laureano’s] counsel with a

non-exhaustive list of other cases where the presumption was

rebutted.”).

Our Court, too, has recognized that a petitioner can

rebut the presumption. See Lavira v. Att’y Gen., 478 F.3d 158,

165 (3d Cir. 2007) (remanding for the BIA to consider facts in

the record that “appear to place [the petitioner] squarely within

the exception carved out by the six-part test in Matter of Y-L-

”); Lopez v. Att’y Gen., No. 23-1557, 2024 WL 637465, at *1

n.1 (3d Cir. Feb. 15, 2024) (noting that the petitioner’s

conviction “does not bar withholding” because the IJ held it

“falls under the exceptions set forth in Matter of Y-L”). Matter

of Y-L- provides guidance to IJs, not a guarantee that a

withholding application will be denied. And that framework is

within the Attorney General’s expressly delegated authority.

Amicus argues that Matter of Y- L- “precludes

consideration of coercion and duress” even though “[d]uress

and coercion have long been recognized to diminish individual

responsibility to such a degree that, under certain

circumstances, they provide a defense to civil or criminal

liability.” Amicus Br. at 20. Indeed, duress and coercion can

provide a defense to criminal liability, including in federal

narcotics prosecutions. See United States v. Santos, 932 F.2d

244, 245, 250 (3d Cir. 1991) (noting that the defendant was

entitled to a jury instruction on duress in a trial for conspiracy

to possess with intent to distribute). But by the time the

noncitizen is in withholding-only proceedings—after a

criminal conviction—she already had an opportunity to raise

duress and coercion as defenses in the criminal prosecution.

And if she had been meritorious, there would not be any

conviction subject to a particularly serious crime

6

determination. In cases like this one, where the noncitizen

pleads guilty and thus chooses not to pursue any defenses, she

would have been advised “regarding the risk of deportation.”

Padilla v. Kentucky, 559 U.S. 356, 367 (2010). If not, she may

bring a claim for ineffectiveness of counsel, see id., but she

cannot argue to the BIA that Matter of Y-L- precluded

“consideration of coercion or duress,” Amicus Br. 20.

Also, Amicus invokes Negusie v. Holder, 555 U.S. 511

(2009), for the proposition that “courts have particularly

emphasized consideration of coercion and duress in

immigration matters.” Amicus Br. 21. The Supreme Court in

Negusie considered the BIA’s interpretation of a different bar

to the withholding of removal—the “persecutor bar,” 555 U.S.

at 514, which precludes eligibility for withholding of removal

if the Attorney General determines that the noncitizen

“ordered, incited, assisted, or otherwise participated in the

persecution of an individual.” 8 U.S.C. § 1231(b)(3)(B)(i). The

Court remanded with instructions that the BIA use its then-

existing “Chevron discretion” to interpret the statute in the first

instance and decide whether the persecutor bar allows

consideration of duress or coercion. Negusie, 555 U.S. at 523.

The Court did not provide any guidance on that question, and,

ultimately, the Attorney General decided that “[t]he bar to

eligibility for asylum and withholding of removal based on the

persecution of others does not include an exception for

coercion or duress.” Matter of Negusie, 28 I. & N. Dec. 120,

120 (A.G. 2020). That precedent still stands. So, although

courts may emphasize coercion and duress in immigration

matters, as amicus argues, invoking coercion and duress does

not always carry the day.

For the foregoing reasons, I conclude that the

rebuttable-presumption framework outlined in Matter of Y- L-

is a valid exercise of the Attorney General’s delegated

7

authority and that the BIA properly applied it in this case.

Therefore, I would hold that Laureano’s petition for review as

to the statutory withholding claim fails on this basis.

8

MATEY, Circuit Judge, dissenting.

Today’s lead opinion is without precedent. The panel

reaches to resolve a jurisdictional question, resulting in a stark

new circuit split. Along the way, it invents a new standard for

the affirmance of administrative decisions in appeals without a

panel majority, a question no party has briefed and this Court

has never addressed. And it tucks a dissent into Section IV that

reaches a conclusion rejected by the majority. That absence of

precedent on all of this is replaced with one new “precedent”

that, I suspect, will not long last in the reporters. I would fix

the mistakes now without the cost of en banc, or the certainty

of certiorari. That is why I must respectfully dissent.

I.

A.

Laureano is a citizen of the Dominican Republic who

was admitted to the United States in 1994. She was arrested in

2005 for heroin trafficking, and pleaded guilty in 2007 to Con-

spiracy to Possess with Intent to Distribute One Kilogram or

More of Heroin in violation of 21 U.S.C. § 846. After serving

a twenty-four month prison sentence, Laureano was returned

to the Dominican Republic under a final removal order issued

in September 2008. Laureano almost immediately illegally

reentered the United States, where she remained undetected

and unauthorized for the next fifteen years.

In 2023, DHS gave Laureano a notice of intent to rein-

state her prior removal order. Laureano did not contest her re-

movability but expressed a fear that she would be harmed by

1

an ex-boyfriend in the Dominican Republic1—last seen in

2009—and applied for withholding of removal and protection

under CAT.

B.

Congress, through the INA, allows aliens to seek judi-

cial review of their “final order of removal,” 8 U.S.C. §

1252(a)(1), a process that “shall be the sole and exclusive

means for judicial review of an order of removal,” id. §

1252(a)(5). And it set a tight timeline, requiring a petition be

filed “not later than 30 days after the date of the final order of

removal,” id. § 1252(b)(1). A petition for review of a removal

order must also contain all legal and factual challenges the al-

ien wants to raise. See id. § 1252(b)(9) (“Judicial review of all

questions of law and fact, including interpretation and applica-

tion of constitutional and statutory provisions, arising from any

action taken or proceeding brought to remove an alien . . . shall

be available only in judicial review of a final order under this

section.”). A petition for review is the only source of jurisdic-

tion, not just over removal orders, but over “any cause or claim

1

Prior to her removal, Laureano had two children in the

United States with this ex-boyfriend, who was removed to the

Dominican Republic sometime between 2003 and 2005 after

serving a prison sentence for drug trafficking. And after her

illegal reentry, Laureano partnered with two men resulting in

two more children. The father of her third child is a Dominican

national who reentered the United States unlawfully alongside

her, but who has since been removed. The father of her fourth

child, who is her current spouse, is another Dominican national

without any current authorization to reside in the United States.

2

by or on behalf of any alien arising from the decision or action

by the Attorney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien under” the

INA. Id. § 1252(g).2 Taken together, these requirements ensure

that judicial review of such matters will be limited to a single

petition filed within thirty days of a “final order of removal”

and raising all legal and factual issues “arising from” that or-

der.3

The Supreme Court has confirmed this statutory scheme

by dispelling some circuit courts’ misunderstanding of what

2

Congress has taken care to clarify that this applies with

equal force to the Convention Against Torture. The Foreign

Affairs Reform and Restructuring Act of 1998 (FARRA)—

which codifies the United States’ obligations under the Con-

vention, see Nasrallah v. Barr, 590 U.S. 573, 580 (2020)—

confirms that petitions under Section 1252 are the sole mecha-

nism for judicial review of CAT orders. See FARRA §

2242(d), 112 Stat. 2681-822, codified at 8 U.S.C. § 1231 note

(“[N]othing in this section shall be construed as providing any

court jurisdiction to consider or review claims raised under the

[CAT] except as part of the review of a final order of removal

pursuant to [Section 1252].”). The INA includes the same lim-

itation: “Notwithstanding any other provision of law . . . a pe-

tition for review filed with an appropriate court of appeals in

accordance with this section shall be the sole and exclusive

means for judicial review of any cause or claim under the

[CAT] . . . .” 8 U.S.C. § 1252(a)(4).

3

Nothing suggests that Congress envisioned “second or

successive” petitions—much less that it sought to give a de-

ported alien a new shot at judicial review every time she un-

lawfully reentered the country.

3

qualifies as a “final order of removal.” See Riley v. Bondi, 606

U.S. 259 (2025). Before, some circuit panels interpreted Sec-

tion 1252(b)(1) to allow aliens to file petitions within thirty

days of a BIA decision denying relief in withholding-only pro-

ceedings, reasoning that “an ‘order of removal’ does not be-

come ‘final’ until [the BIA] decides an alien’s request for with-

holding of removal.” Inestroza-Tosta v. Att’y Gen., 105 F.4th

499, 513 (3d Cir. 2024); see also id. at 514 n.12 (collecting

cases). Riley rejected that reading since the INA defines a “fi-

nal order of removal” as the order “concluding that the alien is

deportable or ordering deportation.” 606 U.S. at 267 (quoting

8 U.S.C. § 1101(a)(47)(A)). A BIA decision denying withhold-

ing of removal does no such thing, since it “does not affect the

validity of a previously issued order of removal or render that

order non-final.” Id. at 269.4 Instead, when an alien like

4

I agree that Riley’s reasoning applies equally to both stat-

utory withholding and CAT relief. See Op. 6 n.3. After all, nei-

ther statutory withholding nor CAT relief categorically pre-

vents an alien’s deportation, since the alien may be removed to

a third country not covered by the grant of withholding or CAT

relief. See Op. 6 n.4; Pino-Porras v. Att’y Gen., No. 22-3419,

2025 WL 1752491, at *7 (3d Cir. June 25, 2025) (Matey, J.,

dissenting); see also Johnson v. Guzman Chavez, 594 U.S. 523,

536–37 (2021) (noting that, because “a grant of withholding

does not prevent the DHS from removing an alien to a country

other than the one to which removal has been withheld,” it does

not answer “the antecedent question whether an alien is to be

removed from the United States”) (quotation omitted); Nasral-

lah v. Barr, 590 U.S. 573, 582 (2020) (noting that an order

granting withholding relief is “not itself a final order of re-

moval” because it “means only that, notwithstanding the order

of removal, the noncitizen may not be removed to the

4

Laureano concedes she is removable, her administrative re-

moval order will serve as the “Executive’s final determination

on the question of removal”—triggering the alien’s thirty-day

deadline to petition for review of that determination. Id. at 267.

While Laureano undeniably filed her petition much too

late to satisfy Section 1252(b)(1), the Justice Department has

chosen to forgive that error.5 But Riley also reveals that Lau-

reano’s petition suffers from an even more glaring defect: it

seeks review only of “the final order in withholding-only

designated country of removal, at least until conditions change

in that country,” although “the noncitizen still may be removed

at any time to another country” (internal quotation marks omit-

ted)).

5

The Justice Department has “waived enforcement” of

Section 1252(b)(1)’s “non-jurisdictional deadline,” Op. 6, but

not because “the Government has not pressed timeliness,” id.

Rather, counsel affirmatively declined to invoke that bar and

seek dismissal of Laureano’s petition as untimely. Oral Argu-

ment at 1:19:30–36 (“With respect to the timeliness, the Court

can move on to the merits of . . . this case and doesn’t need to

decide that question.”); id. at 1:20:45–50 (“With respect to the

timeliness point, we don’t think it is relevant to this case here .

. . . We are not pressing it in this case.”); see United States v.

Olano, 507 U.S. 725, 733 (1993) (“[F]orfeiture is the failure to

make the timely assertion of a right,” while waiver is the “in-

tentional relinquishment or abandonment of a right.”). In a fu-

ture case, where there is no affirmative waiver of Section

1252(b)(1)’s deadline, dismissing an untimely petition honors

our “administrative and institutional interest in enforcing ap-

pellate deadlines.” See Long v. Atl. City Police Dep’t, 670 F.3d

436, 447 n.18 (3d Cir. 2012).

5

proceedings entered by the [BIA] on July 22, 2024.” App. 1,

Laureano PFR. And as the lead opinion correctly notes, that

order “is not a final order of removal.” Op. 7. That should mark

the end of this petition.

II.

Instead, the lead opinion stretches to create the jurisdic-

tion precluded by the INA, two-stepping around statutory lim-

its on judicial review. First, the lead opinion recasts the 2023

reinstatement of Laureano’s removal as the original 2008 re-

moval order. Second, the lead opinion announces that courts

can now review standalone challenges to the denial of with-

holding-only relief, even without any challenge to an alien’s

removal order. Respectfully, that dance defies the INA.

A.

The lead opinion claims we “have jurisdiction under

[Section] 1252(a)(1) to review Laureano’s 2023 reinstated re-

moval order.” Op. 8. This treats Laureano’s reinstatement de-

cision as a “final order of removal,” under the premise that

DHS’s reinstatement of her removal order “itself operates to

remove Laureano from the United States.” Op. 7.6

6

The lead opinion looks to a few words from Laureano’s

reinstatement decision to argue that order “concludes that Lau-

reano is deportable ‘as an alien who has illegally reentered.’”

See Op. 7–8 n.5 (quoting A.R. 321). But that document—re-

vealingly captioned “Notice of Intent/Decision to Reinstate

Prior Order” (my emphasis)—repeats time and time again that

the 2008 order already concluded that Laureano is deportable.

A.R. 321 (“You are an alien subject to a prior order of

6

That is incorrect, as Riley makes clear: an alien’s “order

of removal” is the “order concluding that the alien is deportable

or ordering deportation.” 606 U.S. at 267 (quoting 8 U.S.C. §

1101(a)(47)(A)).7 A reinstatement decision is different,8 since

it merely effectuates the original removal order. See 8 U.S.C. §

1231(a)(5) (“[T]he prior order of removal is reinstated from its

original date and is not subject to being reopened or reviewed

. . . and the alien shall be removed under the prior order at any

time after the reentry.”) (emphasis added). Since there is no

deportation/exclusion/removal entered on September 8, 2008

at San Antonio, Texas.”); id. (“I have determined that the

above-named alien is subject to removal through reinstatement

of the prior order.”); id. (“In accordance with Section 241(a)(5)

of the [INA], you are removable as an alien who has illegally

reentered the United States after having been previously re-

moved or departed voluntarily while under an order of exclu-

sion, deportation or removal and are therefore subject to re-

moval by reinstatement of the prior order.”).

7

Riley “did not involve a reinstated order of removal.” See

Op. 7 n.5 (citing 606 U.S. at 264–65). But its definition of a “a

final order of removal” necessarily excludes a removal order’s

reinstatement, as I explain.

8

Reinstatement decisions are issued under an “expedited

process for aliens who reenter without authorization after hav-

ing already been removed.” Guzman Chavez, 594 U.S. at 529.

Under its own regulations, DHS “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.” Id. at 530

(citing 8 C.F.R. §§ 241.8(a)–(c), 1241.8(a)–(c)).

7

new command, there is no new “order of removal.”9 That

makes sense, since “an alien subject to a reinstated order of

removal will not have any removal proceedings.” Johnson v.

Guzman Chavez, 594 U.S. 523, 531 (2021).

The lead opinion cannot sidestep this issue. “An order

is either a ‘final order of removal’ or it is not.” Bhaktibhai-Pa-

tel v. Garland, 32 F.4th 180, 196 (2d Cir. 2022).10 A reinstate-

ment decision is not because, like the CAT order at issue in

Riley, it cannot “affect the validity of a previously issued order

of removal or render that order non-final.” Riley, 606 U.S. at

269.

To be sure, the lead opinion cites prior panel decisions

treating reinstatement decisions as removal orders for

9

See also United States v. Rodriguez, 162 F.4th 288, 294

(2d Cir. 2025) (“Reinstatement of removal involves no sepa-

rate determination of removability, limited procedural protec-

tions, and no new removal order. Instead, the noncitizen is

simply removed ‘under the prior order.’” (quoting 8 U.S.C. §

1231(a)(5)).

10

The panel in Bhaktibhai-Patel recognized that it was

bound by “questionable precedent that implicitly holds that a

reinstatement decision itself qualifies as a final removal order

under § 1252.” 32 F.4th at 195 (citing Garcia-Villeda v.

Mukasey, 531 F.3d 141, 150 (2d Cir. 2008)), abrogated on

other grounds by Riley, 606 U.S. 259. But the panel detailed

how that circuit precedent “rests on an unstable foundation,”

particularly since Section “1231(a)(5) does not condition the

reinstatement of the prior order on any subsequent order that

DHS may issue” but “instead directs that the prior order is au-

tomatically reinstated by operation of law.” Id.

8

jurisdictional purposes.11 But none of these opinions examined,

let alone justified, transforming reinstatements into the “func-

tional equivalent of a final order of removal.” Dinnall v. Gon-

zales, 421 F.3d 247, 251 n.6 (3d Cir. 2005) (quoting Arevalo v.

Ashcroft, 344 F.3d 1, 9–10 (1st Cir. 2003)).12 Even more, those

assumptions about jurisdiction are inconsistent with the Su-

preme Court’s later Riley opinion (and Guzman Chavez for that

matter), so we can no longer follow their lead. See Lebanon

Farms Disposal, Inc. v. County of Lebanon, 538 F.3d 241, 249

n.16 (3d Cir. 2008) (“An intervening decision of the Supreme

Court is a sufficient basis for us to overrule a prior panel’s opin-

ion without referring the case for an en banc decision.”).

Laureano’s “final order of removal” is the order issued

in September 2008, not that order’s reinstatement fifteen years

later. Since Laureano does not challenge the 2008 order—or

even the denial of any requested relief from that order—that

should end this case.

11

See Op. 7–8 (citing United States v. Charleswell, 456

F.3d 347, 353 (3d Cir. 2006); Dinnall v. Gonzales, 421 F.3d

247, 251 n.6 (3d Cir. 2005); Avila-Macias v. Ashcroft, 328 F.3d

108, 110 (3d Cir. 2003)).

12

See also Charleswell, 456 F.3d at 353 (“[A]lthough ‘a

reinstatement order is not literally an “order of removal” be-

cause it merely reinstates a previously issued order of removal

or deportation[]’ we consider it a final order of the INS.”)

(quoting Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th

Cir. 2002)).

9

B.

But even treating the reinstatement of a removal order

as the actual removal order cannot justify the lead opinion’s

exercise of jurisdiction. After all, “Laureano does not explicitly

seek review of her reinstated removal order.” Op. 8. So the lead

opinion pivots to announce a new rule: “courts of appeals have

jurisdiction to review withholding-only rulings independent of

any substantive review of final orders of removal.” Op. 9 (foot-

notes omitted). But that notion lacks a foundation in the INA

and Riley’s recent discussion, and creates an immediate split

with the Ninth Circuit.

1.

Avoiding the INA itself, the lead opinion turns instead

to a single post-Riley opinion to decide this court can consider

petitions that do not challenge a “final order of removal,” but

only the denial of withholding relief from that order. See Op.

9–10 n.9 (citing Gomez-Gabriel v. Att’y Gen., 146 F.4th 327,

330 n.1 (3d Cir. 2025) (per curiam)).13 But I doubt we can place

13

The lead opinion also looks to Section 1252(a)(4) as a

backup “source of jurisdiction to review the CAT order.” Op.

12. But all Section 1252(a)(4) does is confirm that our review

of a CAT order is limited to petitions that comply with Section

1252’s requirements. See 8 U.S.C. § 1252(a)(4) (“[A] petition

for review . . . in accordance with this section shall be the sole

and exclusive means for judicial review of any cause or claim

under the [CAT].”). This reading is only reinforced by FARRA.

See FARRA § 2242(d), 112 Stat. 2681-822, codified at 8

U.S.C. § 1231 note (“[N]othing in this section shall be con-

strued as providing any court jurisdiction to consider or review

10

that much weight on the standard footnote appearing in every

opinion this court issues, one containing no hint that the juris-

dictional concerns at issue here were considered.14

claims raised under the [CAT] except as part of the review of a

final order of removal pursuant to [Section 1252].”). Ulti-

mately, the lead opinion gives no reason why Section

1252(a)(4) allows us to bypass Section 1252(a)(1)’s jurisdic-

tional limits on our review of immigration petitions to those

challenging a “final order of removal.”

14

That note’s entire jurisdictional discussion reads: “We

have jurisdiction under 8 U.S.C. § 1252(a)(1).” Gomez-Gabriel

v. Att’y Gen., 146 F.4th 327, 330 n.1 (3d Cir. 2025). That case

also involved a petition materially different from Laureano’s,

given that it sought review of the denial of an asylum applica-

tion—not just from the denial of withholding relief. See id.

329–30. The lead opinion also cites two pre-Riley panel opin-

ions, Op. 10 n.9, neither with greater jurisdictional depth than

Gomez-Gabriel and both involving petitions challenging the

denial of asylum, as well as withholding and CAT relief. See

Manuel-Soto v. Att’y Gen., 121 F.4th 468, 470 (3d Cir. 2024)

(no mention of jurisdiction); Argueta-Orellana v. Att’y Gen.,

35 F.4th 144, 147 (3d Cir. 2022) (“We have limited jurisdiction

to review the Board’s decision under 8 U.S.C. § 1252(a)(1),

looking only for an abuse of discretion.”). Even less relevant

are the two post-Riley non-precedential opinions cited by the

lead opinion, both exercising (without analysis) jurisdiction

over petitions that also challenged the denial of asylum appli-

cations. Op. 10 n.9 (citing Lopez-Villeda v. Att’y Gen., No. 24-

2916, 2026 WL 788904, at *1 (3d Cir. Mar. 20, 2026); Car-

neiro v. Att’y Gen., No. 25-1060, 2025 WL 3281409, at *1 &

n.1 (3d Cir. Nov. 25, 2025)). Indeed, relying on cases involving

the denial of asylum—which Laureano’s does not—glosses

11

Seeking to fill that void, the lead opinion then leans on

Riley, suggesting that the Supreme Court implicity foreclosed

all jurisdictional objections to judicial review of withholding-

only orders under the INA. See Op. 7–11. I agree Riley did not

answer the exact jurisdictional question at issue today: whether

we lack jurisdiction over immigration petitions challenging the

denial of withholding-only relief, absent a challenge to the fi-

nal order of removal. Instead, Riley addressed only Section

1252(b)(1)’s time-bar, and whether jurisdiction is present to re-

view a petition filed more than thirty days after the alien’s final

administrative removal order but within thirty days of the

BIA’s denial of withholding-only relief. See 606 U.S. at 263.15

Given this limited holding, the lead opinion overreads

Riley’s disposition (a remand for further proceedings, rather

than an outright dismissal for lack of jurisdiction) to decide a

over a crucial distinction. As the lead opinion explains, “[n]ei-

ther statutory withholding or CAT ‘prevents DHS “from re-

moving [the] alien to a third country other than the country to

which removal has been withheld or deferred,”’” Op. 6 n.4

(quoting Guzman Chavez, 594 U.S. at 531–32), while asylum

permits an “individual to remain in the United States” unless

and until it is “terminated” by the Attorney General, id. at 8–9

n.9 (citing 8 U.S.C. §§ 1101(a)(42)(A), 1158(c)(2) & (3)).

Most importantly: Laureano does not seek asylum (and so the

parties have never examined these questions) and I would not

speculate on the interplay of these statutes even in dicta.

15

See also Riley, 606 U.S. at 281 (Thomas, J., concurring)

(“In this case, we decide only the issue on which we granted

certiorari: the correctness of the Fourth Circuit’s conclusion

that it lacked jurisdiction based on the timing of Riley’s peti-

tion for review.”).

12

jurisdictional question not presented. See Op. 8–12 & nn.7, 9,

10, 11. To the contrary, “[i]t is not” the Supreme “Court’s usual

practice to adjudicate . . . legal . . . questions in the first in-

stance.” CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 435

(2016). Returning the matter rather than reaching for issues

outside the writ of certiorari can hardly mean that the Supreme

Court “necessarily” rejected all jurisdictional objections to Ri-

ley’s petition. Those questions remained open for the courts of

appeals to decide. See also Riley, 606 U.S. at 281 (Thomas, J.,

concurring) (noting, that beyond Section 1252(b)(1)’s time-

bar, Riley did “not decide whether Riley’s case is otherwise free

of jurisdictional defects”).16

In any event, Riley’s logic cuts the other way. If a with-

holding-only order is not the “final order of removal” that trig-

gers the thirty-day period to file a petition under Section

1252(b)(1), see 606 U.S. at 267–69, it hardly stands to reason

it should be a “final order of removal” that authorizes our re-

view under Section 1252(a)(1). Congress, in short, created a

single avenue for judicial review by making a final order of

removal the jurisdictional minimum under Section 1252, about

16

That Justice Thomas’s concurrence raised similar con-

cerns about our jurisdiction to review CAT orders absent a

challenge to a final order of removal only reinforces the open-

ness of this issue. See Op. 11–12, nn.10 & 11 (discussing Riley,

606 U.S. at 278–80 (Thomas, J., concurring)). There is no ju-

risprudence of omission transforming unanswered questions

into federal precedent. The Court’s silence on this issue is

simply silence, not some silent signal that a novel question has

been settled without a word written.

13

which the petitioner must raise a “colorable and consequential

question.” See Monsalvo v. Bondi, 604 U.S. 712, 722 (2025).17

By itself, a challenge to a CAT order does not meet that

irreducible minimum. “A CAT order provides that, ‘notwith-

standing’ a removal order, the government may not remove an

individual to a particular ‘designated country.’” Id. (quoting

Nasrallah v. Barr, 590 U.S. 573, 582 (2020)). It “is not itself a

final order of removal because it is not an order concluding that

the alien is deportable or ordering deportation,” nor does it “af-

fect the validity of the final order of removal,” meaning it “does

not merge into the final order of removal.” Nasrallah, 590 U.S.

at 582 (internal quotation marks omitted).18 So while federal

courts can review CAT and statutory withholding orders, they

must do so only alongside their “review of a final order of re-

moval.” 8 U.S.C. § 1252(a)(1); see also id. § 1252(b)(9).19

17

It is enough to “ask[] the court[] to settle a dispute over

what that order mean[s].” Monsalvo v. Bondi, 604 U.S. 712,

723 (2025) (finding that a dispute over a removal order’s vol-

untary departure date was enough to invoke Section

1252(a)(1)’s jurisdiction).

18

This definition of a CAT order applies “by logical exten-

sion [to] statutory withholding.” Bhaktibhai-Patel, 32 F.4th at

190.

19

The lead opinion claims that the INA’s “zipper clause,”

Section 1252(b)(9), “does not interfere with our jurisdiction.”

Op. 11–12 n.11. But that is only true if we have jurisdiction

elsewhere, which we do not. The “zipper clause” confirms that

when a court lacks jurisdiction over a petition under Section

1252(a)(1), it also lacks jurisdiction to review any questions of

fact or law related to that alien’s removal. See id. (citing 8

U.S.C. § 1252(b)(9)). The “zipper clause” thus confirms that

14

2.

Not only does the lead opinion adopt a reading at odds

with the INA and Riley’s logic, it also creates an immediate

split with the Ninth Circuit’s decision in Navarrete v. Bondi,

170 F.4th 1214, 1225 (9th Cir. 2026), which held that “a peti-

tion advancing a standalone claim for review of a CAT order is

not sufficient to invoke our jurisdiction under 8 U.S.C. §

1252(a)(1).”

Assessing its ability to review a petition challenging

only the denial of a CAT order, Navarrete noted that jurisdic-

tion turns on whether an order “qualifies as ‘a final order of

removal’ for purposes of invoking our jurisdiction under 8

U.S.C. § 1252(a)(1).” Id. at 1221.20 And “an order denying

CAT protection is not a final order of removal, nor does it

merge into a final order of removal.” Id. at 1225 (citing Nasral-

lah, 590 U.S. at 581–83; Riley, 606 U.S. at 268–69).

our focus is Section 1252 and brings us full-circle to whether

Laureano’s petition challenges a “final order of removal.”

Since it does not, the “zipper clause” deprives us of the power

to review any “questions of fact or law related to” the denial of

Laureano’s applications for withholding relief from DHS’s re-

instatement of her removal order, see 8 U.S.C. § 1252(b)(9).

20

After all, “if a court does not have jurisdiction to hear a

petition under 8 U.S.C. § 1252(a)(1), then it does not have ju-

risdiction to review any questions of fact or law related to such

claims. 8 U.S.C. § 1252(b)(9), (g).” Navarrete v. Bondi, 170

F.4th 1214, 1221 (9th Cir. 2026).

15

That is because by its own terms Section 1252(a)(1)

only gives courts of appeals “jurisdiction to hear petitions for

review of final orders of removal”—not “any jurisdiction to

hear CAT claims independent of challenges to final orders of

removal.” Id. at 1221. So “the only jurisdiction to review CAT

orders is a ‘pendent jurisdiction’ requiring ‘an independent ba-

sis of federal subject matter jurisdiction’ under 8 U.S.C. §

1252(a)(1)—specifically, a petition for review of a final order

of removal.” Id. at 1222. Since Navarrete’s petition from the

denial of his request for CAT relief did not raise a challenge to

his final order of removal, the Ninth Circuit dismissed his pe-

tition for lack of jurisdiction under 8 U.S.C. § 1252(a)(1). Id.

at 1219 n.3, 1225.

III.

The lead opinion contains a final mystery. While two

panel members agree to exercise jurisdiction over Laureano’s

petition, they deadlock on the actual issue presented: whether

the BIA can rely on the Attorney General’s opinion in Matter

of Y-L-, 23 I. & N. Dec. 270, 274 (A.G. 2002). But the lead

opinion takes an unusual approach to announcing the impasse,

arguing at length (in Section IV, spanning nearly half its

length) that Matter of Y-L- is at odds with 8 U.S.C. §

1231(b)(3)(B). I am lost reading this “loser-takes-all” ap-

proach—as I have no doubt will be future readers of this case.

For a start, the lead opinion appears to create a new rule

of decision for petitions from administrative decisions before a

deadlocked panel, a question no party has briefed and this

Court has never addressed. Breaking new ground, the lead

opinion invokes the Supreme Court’s purported “practice” of

“leaving intact the ruling under review” when “there is no

16

majority on the outcome.” Op. 3 n.1 (citing Costco Wholesale

Corp. v. Omega, S.A., 562 U.S. 40 (2010) (per curiam); Frie-

drichs v. Cal. Teachers Ass’n, 578 U.S. 1 (2016) (per curiam)).

But both cited cases “affirmed” a lower court’s judgment given

“an equally divided Court,” Costco, 562 U.S. at 40 & Frie-

drichs, 578 U.S. at 1, rather than merely “leaving it intact” (as

would, say, a dismissal-as-improvidently-granted).

So if this panel were evenly split, as the lead opinion

claims, these cases suggest that the lead opinion should “af-

firm” the BIA’s reliance on Matter of Y-L- in denying Lau-

reano’s withholding applications, rather than casting doubt on

it. But the panel here is not “equally divided” since two of its

members would reject Laureano’s challenge to Matter of Y-L-

(one on jurisdictional grounds, one on the merits), while only

one would accept it.21 Section IV, in short, is just a single mi-

nority view of an unresolved legal question.

I am unaware of any instance where this Court—or any

other circuit—has showcased the losing view on an issue in a

precedential opinion, rather than in a separate writing. That is

no mere matter of “nomenclature,” Op. 3 n.1, but a break from

precedent and procedure certain to cause confusion by suggest-

ing that this Court has decided what it has not.

* * *

21

If we had jurisdiction I would join Judge Fisher’s

thoughtful and careful conclusion that Matter of Y-L- is a rea-

sonable exercise of discretionary authority that Section

1231(b)(3)(B) has expressly delegated to the Attorney Gen-

eral—and that the BIA properly applied its framework to Lau-

reano’s case.

17

Lacking jurisdiction, we should dismiss Laureano’s pe-

tition and so I respectfully dissent.

18