Nikolay Kolov v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0186p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

NIKOLAY M. KOLOV,

│

Petitioner, │

> No. 22-3760

│

v. │

│

MERRICK B. GARLAND, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals.

No. A 077 003 118.

Decided and Filed: August 18, 2023

Before: GIBBONS, LARSEN, and MURPHY, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Michael E. Piston, PISTON AND CARPENTER P.C., Troy, Michigan, for

Petitioner. Jeffery R. Leist, Anthony C. Payne, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent.

GIBBONS, J., delivered the opinion of the court in which LARSEN and MURPHY, JJ.,

joined. MURPHY, J. (pp. 15–25), delivered a separate concurring opinion.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Nikolay Kolov, a native and citizen of

Bulgaria, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming

an Immigration Judge’s (“IJ”) denial of withholding of removal and protection under the

Convention Against Torture (“CAT”). The BIA upheld the IJ’s determination that Kolov did not

No. 22-3760 Kolov v. Garland Page 2

present a credible claim because parts of his testimony before the IJ were not disclosed in his

reasonable fear interview, written application, or supporting declaration. Because the BIA’s

decision contains no legal error, we deny the petition for review.

I.

Nikolay Kolov first sought admission to the United States in 1999. He was placed in

removal proceedings but sought asylum and related protections. After he failed to credibly

demonstrate eligibility for protection, Kolov was ordered removed. The BIA denied Kolov’s

appeal, and we denied his petition for review. Kolov was removed to Bulgaria in February 2012.

In November 2014, Kolov reentered the United States and was apprehended by DHS.

Kolov’s prior removal order was reinstated, but he expressed fear about returning to Bulgaria.

Consequently, he was interviewed in January 2015 to determine whether he reasonably feared

persecution in Bulgaria. In this interview, Kolov indicated that he was a member of the “Roma”

ethnic group. CA6 R. 7-2, Reasonable Fear Questions & Answers, Admin R. 578, 581. Based

on his ethnicity, Kolov reported that he had been subjected to harassment, abuse, and physical

violence in Bulgaria.

To illustrate his claim, Kolov recounted several incidents of such treatment. He recalled

that government officials made derogatory comments about his ethnicity at the airport when he

returned to Bulgaria in 2012. Kolov also reported that in September 2014, two men recognized

him as Roma and attacked him while he waited in line to pay for breakfast. The assailants hit

Kolov, causing him to fall to the ground, and the men then repeatedly kicked him. Kolov noted

that police officers were standing nearby when the attack happened and did not intervene or

render aid, so he did not report the incident because he believed that the police were not

interested in protecting the Roma.

Kolov also described two incidents from June 2014. In the first, he was waiting at the

bus station with other Roma, and a group of Bulgarians came over and said that “Roma’s [sic]

didn’t deserve to be living.” Id. at 580. Kolov ran, but one of the other Roma individuals was

kicked. Kolov reported the incident to the authorities, but no police action followed. In the

second incident, Kolov attempted to call a taxi while out shopping, but people at the taxi stand

No. 22-3760 Kolov v. Garland Page 3

called him an ethnic slur and said that he had no right to shop at the store. Id. at 580. Kolov

jumped into a taxi to escape. Kolov submitted a written police report about the interaction,

indicating that he had been verbally harassed based on his race and believed that he would have

been physically attacked if he had stayed at the scene. According to Kolov, the officer threw his

written report into the garbage, saying that it was not enough to file a complaint.

At the end of the interview, the interviewer asked Kolov whether “there [is] any other

information regarding your request for withholding of removal that we did not discuss?” Id. at

584. Kolov responded, “No.” Id. Then, the asylum officer summarized the incidents that Kolov

had described and asked Kolov whether the summary was correct. Kolov responded, “Yes.” Id.

at 585. Based on the information that Kolov provided, the asylum officer determined that he

presented a reasonable fear of persecution or torture and referred his case to an immigration

judge for withholding-only proceedings.

In the lead-up to his hearing, Kolov submitted a Form I-589, an application for

withholding of removal, prepared with the help of counsel in May 2015.1 Kolov’s application

claimed that he experienced “discrimination and mistreatment” in Bulgaria based on his “Roma

ethnicity.” CA6 7-2, Application for Asylum and for Withholding of Removal, Admin. R. 518.

Kolov listed the same incidents that he described in his interview—mistreatment by Bulgarian

immigration officials at the airport, harassment and threats at a bus stop, verbal abuse and

threatening behavior while out shopping, and an assault while waiting to pay for breakfast.

Kolov noted that the police did not respond to his complaints. He indicated that he feared

continued mistreatment based on his Roma ethnicity if he returned to Bulgaria.

In a declaration attached to his application, Kolov provided additional details about the

incidents of mistreatment identified in his interview and Form I-589. For the first time, however,

Kolov also described an incident from November 2013. He explained that he and friends had

left a restaurant when four Bulgarian men began harassing them for being Roma. One of the

men spit on Kolov and tried to punch him, causing Kolov to trip and fall to the ground as he

1Kolov later submitted an updated Form I-589 form, but the only change on the new form indicated that

Kolov was now married.

No. 22-3760 Kolov v. Garland Page 4

attempted to avoid being hit. While he was on the ground, the four men repeatedly kicked

Kolov, causing Kolov’s nose and lip to bleed. Kolov went to the emergency room but was told

that his injuries did not require treatment. Despite Kolov’s initial intent to do so, his friends

convinced him not to report the incident to the police because they believed that the report would

be ignored.

At his May 2019 hearing before the IJ, Kolov was represented by counsel and testified in

English.2 At the outset of his testimony, Kolov stated that he is Roma and suffered harm in

Bulgaria due to his ethnicity. When probed about specific incidents of harm, Kolov described

his interaction with immigration officials at the airport in 2012, the incident at the bus station in

June 2014, and the attack in the breakfast line in September 2014.

Kolov also spoke about the November 2013 altercation—the one mentioned for the first

time in his declaration—that began as he and friends were leaving a restaurant. His account

matched his declaration; one of the assailants spit on him and tried to punch him, Kolov fell

while trying to avoid getting hit, and the attackers repeatedly kicked him while he was on the

ground. He went to the emergency room to seek care but was told that he did not have injuries

serious enough to require treatment.

Additionally, Kolov recounted an incident from May 2012, claiming that he and his

cousin were called derogatory names, pushed to the ground, and kicked. Kolov’s nose began

bleeding from the attack, so he went into a coffee shop to clean his face before returning home.

The hearing was the first time that Kolov disclosed this incident; he had not mentioned it in his

interview, Form I-589, or declaration.3

2An interpreter was present at the hearing but served only as a backup.

3In addition to his own testimony, Kolov offered other evidence at the hearing. Kolov’s wife, Ventasuava

Yosef, also testified at the hearing, relaying that she noticed that Kolov had bruises on several occasions during

video calls when he was in Bulgaria without her. Yosef testified that Kolov made excuses for the bruising while on

the calls but later admitted that they resulted from ethnicity-based attacks. Kolov also submitted statements from

family and friends, news articles, and country condition materials.

No. 22-3760 Kolov v. Garland Page 5

In its questioning of Kolov, the government asked why he did not mention the November

2013 attack in his interview or the May 2012 attack in his interview, application, or declaration.

Kolov responded that he was nervous and under stress during his interview and that the

progression of the conversation prevented him from fully disclosing every incident of

persecution. As for his application and declaration, Kolov claimed that he could not include

everything in his written materials. When pressed, he admitted that he did not know why he

failed to mention these incidents.

In June 2019, the IJ denied Kolov’s application for withholding of removal and CAT

protection. The IJ found that Kolov credibly established his Roma ethnicity but was not credible

regarding the alleged incidents of persecution. Specifically, the IJ found that “material

information concerning [his] claim was missing from the reasonable fear interview, his

statement, and the 589 that related to the May of 2012 incident and then the severity of the

November 2013 incident was not discussed and explicated.” CA6 R. 7-2, Decision of IJ, Admin.

R. 40. Further, the IJ dismissed Kolov’s explanation for the omissions, that he was nervous and

under stress, as “not credible.” Id. For his CAT claim, the IJ concluded that Kolov failed to

show government acquiescence to torture.

Kolov appealed to the BIA, contesting the IJ’s credibility finding. He argued that he

testified consistently about the May 2012 and November 2013 incidents and that he had

submitted corroborating evidence to support his testimony. He also noted that he prepared his

declaration in English without assistance.

The BIA dismissed the appeal, finding no clear error in the IJ’s adverse credibility

determination. In sum, the BIA found that Kolov’s omissions were substantially related to his

claim and rendered him not credible. Like the IJ, the BIA believed that Kolov’s omission of the

May 2012 attack in his interview, Form I-589, and declaration in addition to the omission of the

November 2013 attack in his interview undermined his credibility. The BIA also agreed with the

IJ that Kolov’s explanation for the omissions was not persuasive. Accordingly, the BIA upheld

the IJ’s denial of Kolov’s claims based on his failure to present a credible claim for relief.

No. 22-3760 Kolov v. Garland Page 6

Kolov now petitions for review of the BIA’s decision. Kolov argues that the IJ and BIA

erred as a matter of law in their adverse credibility finding because his omissions did not directly

contradict his later testimony.

II.

We first address our jurisdiction, and we begin with some background. The Immigration

and Nationality Act (“INA”) created an expedited process for noncitizens who reenter the United

States without authorization after having already been removed under 8 U.S.C. § 1229a. Such an

individual does not receive new removal proceedings; instead, the prior removal order is simply

reinstated. 8 U.S.C. § 1231(a)(5). To reinstate a prior order, the government obtains the prior

order of removal, confirms the person’s identity, determines whether the reentry was

unauthorized, provides written notice to the noncitizen, permits him or her to contest its

determination, and then reinstates the order. 8 C.F.R. §§ 241.8(a)–(c), 1241.8(a)–(c).

In addition to mandating an expedited removal process, the INA limits an individual’s

ability to challenge the reinstated removal order. The reinstated removal order is not subject to

review, and the individual may not obtain “discretionary relief from the terms of the reinstated

order.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006); 8 U.S.C. § 1231(a)(5). The only

relief that the individual may seek at that point is the prevention of his or her removal to the

country specified in the removal order. Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2283

(2021). That is, the person may prevent removal to a country where he or she may face

persecution based on membership in a protected group—referred to as statutory withholding of

removal—or where he or she would be in danger of being subjected to torture—referred to as

CAT protection. Id. at 2282. Thus, if an individual subject to a reinstated removal order

expresses fear of returning to the country designated in the order, he or she is referred for a

reasonable fear interview. 8 C.F.R. § 241.8(e). If the interviewing officer finds that the

noncitizen has a reasonable fear of persecution, the individual receives consideration of only the

withholding of removal claims before an IJ, whose order is reviewable by the BIA. See id.;

Johnson, 141 S. Ct. at 2283.

No. 22-3760 Kolov v. Garland Page 7

We turn back to Kolov’s case. Our jurisdiction over Kolov’s petition depends on the

interplay between two aspects of our power to review orders of removal. First, we may review

only a “final order of removal.” 8 U.S.C. § 1252(a)(1). Second, a petition seeking review of a

final order must be filed within thirty days of the issuance of the final order. Id. § 1252(b)(1).

This limitation is “mandatory and jurisdictional.” Stone v. I.N.S., 514 U.S. 386, 405 (1995)

(citation omitted); see Prekaj v. I.N.S., 384 F.3d 265, 267–68 (6th Cir. 2004). Thus, in our

assessment of our jurisdiction to review Kolov’s petition, we first consider what constitutes a

“final order of removal” within the expedited process used to reinstate his removal order. Then,

we look at whether Kolov sought review within thirty days of any final order’s issuance.

The government initially contended that Kolov’s petition is untimely, depriving us of

jurisdiction. The government’s position was that Kolov did not timely petition for review of his

reinstated removal order (from November 2014) and that the BIA’s later denial of withholding of

removal (from August 2022) is not itself a “final order of removal” that carries its own thirty-day

period to petition for review.4 The Second and Fifth Circuits recently adopted this view in

Bhaktibhai-Patel v. Garland, 32 F.4th 180 (2d Cir. 2022), and Argueta-Hernandez v. Garland,

73 F.4th 300 (5th Cir. 2023) (per curiam), respectively, both grounding their analysis in the

Supreme Court’s decisions in Nasrallah v. Barr, 140 S. Ct. 1683 (2020), and Johnson v. Guzman

Chavez, 141 S. Ct. at 2271.

In Nasrallah, a noncitizen committed a crime that subjected him to removal; during the

removal proceedings, he asserted claims under the CAT. 140 S. Ct. at 1688. The BIA concluded

that the noncitizen did not establish that he would likely be tortured if removed and ordered his

removal. Id. On appeal, the Eleventh Circuit declined to review the noncitizen’s factual

challenges to the BIA’s CAT order, explaining that “judicial review of factual challenges to a

final order of removal” was unavailable to noncitizens convicted of specified crimes. Id. at 1689

(internal quotation marks omitted). The Eleventh Circuit concluded that the prohibition

4The government subsequently withdrew this argument in light of Santos-Zacaria v. Garland, 143 S. Ct.

1103 (2023). In a letter submitted pursuant to Federal Rule of Appellate Procedure 28(j), the government suggests

that under Santos-Zacaria, the thirty-day filing limit should be treated as a mandatory (and, therefore, waivable)

claims processing rule, rather than a jurisdictional rule. And the government asks that we proceed to resolve the

case on the merits. We have no briefing on the effect of Santos-Zacaria and decline to address that question here.

Because our precedents dictate that we have jurisdiction, we consider Kolov’s case on the merits.

No. 22-3760 Kolov v. Garland Page 8

extended to factual challenges to CAT orders raised in the same proceedings. Id. The Supreme

Court reversed, holding that the statutory prohibition on factual challenges to final orders of

removal did not extend to CAT orders. Id. at 1691. Because CAT orders bar removal only to a

specific country but do not affect the validity of the removal order, the Court reasoned, they did

not merge into the “final order of removal” or become subject to the limits on judicial review of

those orders. Id.

Then, in Johnson, noncitizens were detained without bond hearings during the time

between the reinstatement of their removal orders and the hearings on their withholding of

removal claims. 141 S. Ct. at 2283. The Supreme Court considered which statute applied—the

one requiring bond hearings for noncitizens detained “pending a decision on whether the alien is

to be removed,” or the one carrying no such requirement for those already “ordered removed.”

Id. at 2280. The latter statute applied in this context if a reinstated order of removal was

“administratively final” during the period that a noncitizen sought withholding-only relief. Id. at

2284; see 8 U.S.C. § 1231(a)(1)(B)(i), (2). The noncitizens argued that the reinstated orders

were not “administratively final” because they could still seek that relief. The Court disagreed.

It held that the noncitizens were not entitled to an individualized bond hearing because they had

already been “ordered removed” by their reinstated orders of removal. Id. at 2284–85. The

noncitizens’ pursuit of withholding-only relief did not affect the administrative finality of the

removal order because this relief would only bar the noncitizen from being removed to a specific

country but did not bar the noncitizen’s removal generally. Id. at 2285–86. So the reinstated

removal orders remained “administratively final” within the meaning of § 1231 even during the

time that they sought withholding-only relief before an immigration judge and the BIA. Id. at

2284–85.

The Second Circuit recently concluded that Nasrallah and Johnson precluded review of

the BIA’s denial of withholding-only relief following a reinstated removal order. It reasoned

that Nasrallah and Johnson clarified that orders denying withholding of removal and CAT

protection are not “final orders of removal” that are judicially reviewable under § 1252(a) and

that the noncitizen’s failure to seek review of the reinstated removal order within thirty days (but

before the withholding-only proceedings concluded) rendered any challenge to that earlier order

No. 22-3760 Kolov v. Garland Page 9

untimely under § 1252(b)(1).5 Bhaktibhai-Patel, 32 F.4th at 189–93. The Fifth Circuit

subsequently concluded the same. Argueta-Hernandez, 73 F.4th at 303–04 (relying on

Nasrallah and Johnson to hold that the BIA’s denial of the petitioner’s “application for

withholding of removal and CAT relief is not a final order of removal. And his petition is

untimely because it was filed over 30 days after his reinstatement order became final.”). The

Fourth Circuit appears to take the opposite view, recently holding that the IJ’s reasonable fear

determination is the “final order” for purposes of judicial review. Tomas-Ramos v. Garland, 24

F.4th 973, 980 n.3 (4th Cir. 2022); see also Salinas-Montenegro v. Garland, No. 21-3, 2023 WL

3243985, at *1 n.1 (9th Cir. May 4, 2023) (memorandum opinion) (holding that the court was

bound by precedent and had jurisdiction because the petitioner “timely filed his petition for

review within thirty days of the completion of his withholding-only proceedings”).

Unlike our sister circuits,6 we remain bound by circuit precedent permitting review of

BIA orders on withholding-only and CAT relief in these circumstances. Before Johnson, we had

reached the same result as the Supreme Court by holding that noncitizens subject to reinstated

removal orders are not entitled to bond hearings. See Martinez v. Larose, 968 F.3d 555, 560–64

(6th Cir. 2020). In the process, we rejected the argument that the phrase “administratively final”

(the phrase in § 1231(a)(1)(B)(i) that Johnson considered for the bond-hearing issue) meant the

same thing as the phrase “final order of removal” (the phrase in § 1252(a)(1) that concerns

judicial review). See id. at 562–63. Agreeing with the Ninth Circuit, we reasoned that the

reinstated removal order could be “administratively final” for purposes of detention even if it

“lacks finality for purposes of judicial review of [a noncitizen’s] withholding-only claim.” Id.

(quoting Padilla-Ramirez v. Bible, 882 F.3d 826, 836 (9th Cir. 2017)). Put another way, we

reasoned that the denial of withholding-only relief would qualify as the final order of removal

5The government’s 28(j) letter tells us that they will be arguing to the Second Circuit that Bhaktibhai-Patel

should be reconsidered.

6In Bhaktibhai-Patel, the Second Circuit concluded that its decision in Guerra v. Shanahan, 831 F.3d 59

(2d Cir. 2016), had been abrogated by Johnson. See 32 F.4th at 193. Guerra, however, held that the reinstated

removal order was not “administratively final” until the conclusion of the withholding-only proceedings, and

Johnson expressly rejected this reasoning. See id. Similarly, in Argueta-Hernandez, the Fifth Circuit held that it

was bound by Nasrallah and Johnson to disregard its precedent in Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir.

2016). See 73 F.4th at 303. There, the Fifth Circuit found that “Ponce-Osorio’s sweeping definition of finality is

also ‘unequivocally inconsistent’ with Nasrallah and Johnson.” Id. Neither Johnson nor Nasrallah expressly

rejected the reasoning in our binding precedent.

No. 22-3760 Kolov v. Garland Page 10

subject to judicial review. Notably, moreover, the Supreme Court expressly refused to consider

this judicial-review issue in Johnson, so that decision does not undermine our logic in Martinez.

141 S. Ct. at 2285 n.6.

Martinez’s logic also comports with our earlier precedent. Outside the present context

involving reinstated orders of removal and withholding-only proceedings under § 1231, we have

long treated general denials of “withholding of removal” as orders of removal (or orders of

deportation under an earlier version of the statute) “that may be judicially reviewed.” Giraldo v.

Holder, 654 F.3d 609, 613–14 (6th Cir. 2011) (quoting Perkovic v. I.N.S., 33 F.3d 615, 618–19

(6th Cir. 1994)). As we explained in Perkovic, an order about withholding of removal functions

as a reviewable final order because such relief could foreclose an avenue of deportation if

granted. 33 F.3d at 618–19. These holdings are not clearly inconsistent with Nasrallah and

Johnson and therefore remain binding. See Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th

Cir. 2009) (“A published prior panel decision remains controlling authority unless an

inconsistent decision of the United States Supreme Court requires modification of the decision or

this Court sitting en banc overrules the prior decision.”) (citation and internal quotation marks

omitted). We therefore have jurisdiction under Martinez, Giraldo, and Perkovic.

III.

For a successful withholding of removal claim, an applicant must establish by a “clear

probability” that his or her life or freedom would be threatened in the designated country on

account of a statutorily protected ground. Berri v. Gonzalez, 468 F.3d 390, 397 (6th Cir. 2006)

(citation omitted); 8 U.S.C. § 1231(b)(3). The applicant must also establish that the protected

ground was a reason for the persecution. Guzman-Vasquez v. Barr, 959 F.3d 253, 274 (6th Cir.

2020). To receive protection under the CAT, an applicant must show that “it is more likely than

not that [he or she] would be tortured if removed to the proposed country of removal.” Haider v.

Holder, 595 F.3d 276, 289 (6th Cir. 2010) (quoting 8 C.F.R. § 1208.16(c)(2)). Further, the

torture must occur “with the consent or acquiescence of a public official.” 8 C.F.R.

§ 1208.18(a)(1). Such acquiescence can include public officials’ “willful blindness” to torture

committed by private individuals. Amir v. Gonzalez, 467 F.3d 921, 927 (6th Cir. 2006) (citation

omitted).

No. 22-3760 Kolov v. Garland Page 11

We apply the same standard of review to withholding of removal claims and requests for

protection under the CAT. Kamar v. Sessions, 875 F.3d 811, 817 (6th Cir. 2017). When the

BIA issues a written opinion, we review the decision of the BIA “as the final agency

determination.” Umana-Ramos v. Holder, 724 F.3d 667, 670 (6th Cir. 2013) (quoting Hachem v.

Holder, 656 F.3d 430, 437 (6th Cir. 2011)). To the extent that the BIA adopts the IJ’s reasoning,

we also review the IJ’s decision. Id.

Since the REAL ID Act, an IJ assessing the credibility of a petitioner seeking

withholding of removal and CAT protection considers the totality of the circumstances. See 8

U.S.C. § 1158(b)(1)(B)(iii); Slyusar v. Holder, 740 F.3d 1068, 1075 (6th Cir. 2014). Among

other things, an IJ may consider “the inherent plausibility” of an applicant’s account, “the

consistency between the applicant’s . . . written and oral statements,” and “any inaccuracies” in

an applicant’s statements. 8 U.S.C. § 1158(b)(1)(B)(iii). An adverse credibility finding will

often defeat an applicant’s claim for withholding of removal and protection under the CAT.

Slyusar, 740 F.3d at 1072 (withholding of removal); Luna-Romero v. Barr, 949 F.3d 292, 295

(6th Cir. 2020) (CAT).

Credibility determinations are findings of fact. Marikasi v. Lynch, 840 F.3d 281, 287

(6th Cir. 2016) (quoting Sylla v. I.N.S., 388 F.3d 924, 925 (6th Cir. 2004)). We review factual

findings under the deferential substantial evidence standard, considering whether they are

“supported by reasonable, substantial, and probative evidence on the record considered as a

whole.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (citation omitted). Under this

standard, we may not reverse simply because we would have come to a different conclusion.

Sylla, 388 F.3d at 925. Instead, we will not disturb the agency’s factual findings “unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Nasrallah, 140 S. Ct.

at 1692 (quoting 8 U.S.C. § 1252(b)(4)(B)). That is, “reversal is available only if the petitioner

presents evidence sufficient that a reasonable factfinder would have to conclude that the requisite

fear of persecution existed.” Bah v. Gonzalez, 462 F.3d 637, 640 (6th Cir. 2006) (citations

omitted).

No. 22-3760 Kolov v. Garland Page 12

The IJ found Kolov not credible, pointing to his omission of the May 2012 and

November 2013 incidents in his interview and Form I-589. The BIA upheld the IJ’s findings,

agreeing that Kolov’s later addition of the two incidents discredited his claims.

Kolov has not presented evidence that would compel a reasonable adjudicator to disagree

with the IJ’s finding. The thrust of his argument is that the omissions did not directly contradict

his later testimony and thus cannot be the basis of an adverse credibility finding. Specifically,

Kolov asserts that the BIA misapplied our decision in Liti v. Gonzales, 411 F.3d 631, 637 (6th

Cir. 2005). According to Kolov, under Liti, only an omission that directly contradicts later

testimony can support an adverse credibility determination.

We disagree with Kolov’s reading of Liti. In Liti,7 we reviewed an adverse credibility

determination that was based on “conflicts between the testimony of the [applicant] and the

written asylum application . . . [with] no reasonable explanation for those discrepancies.” Id. at

637 (citation omitted). Specifically, the IJ found that the applicants, the Litis, failed to include

two significant incidents—participation in a major anti-government protest and a leadership role

in crashing through the gates of the Germany Embassy to seek asylum—in their written

application but later testified about those events. Id. at 637–38. The BIA upheld this

determination, but we reversed. Id. at 639.

In doing so, we acknowledged that the Litis’ application “did not provide specific details

of the two events” but noted that “the application [did] not contain any specific incidents, but

rather consist[ed] of generalized statements of the Litis’ anti-communist activities.” Id. at 638.

That is, the Litis wrote in their application that they had taken part in numerous anti-government

activities over the course of six years, intimating that they could not recount each occurrence of

government retaliation in response to their long history of political protest. Id. We concluded

that the Litis’ later elaboration on their “generalized statements” did not contradict their written

7A different standard applied in pre-REAL ID Act Liti. Specifically, the adverse credibility finding had to

have been based on “issues that [went] to the heart of the applicant’s claim.” Liti, 411 F.3d at 637. We now

consider the totality of the circumstances, including “the inherent plausibility” of an applicant’s account, “the

consistency between the applicant’s . . . written and oral statements,” and “any inaccuracies” in an applicant’s

statements. 8 U.S.C. § 1158(b)(1)(B)(iii); see Marikasi, 840 F.3d at 287 n.1 (noting the difference between Liti and

the REAL ID Act standards).

No. 22-3760 Kolov v. Garland Page 13

application; it instead reinforced “their claim of a long history of political protest which [could

not] be limited to a few specific instances.” Id. Because the Litis’ later inclusion of specific

incidents did not contradict their earlier generalized statements, we concluded that the BIA’s

adverse credibility finding was unsupported by the record. Id. at 639.

Despite our reversal of the Litis’ adverse credibility finding, we did not set forth a bright-

line rule that only directly contradictory omissions warrant an adverse credibility finding.

Instead, we held that the Litis’ particular omissions did not suffice within the context of their

application. Id. at 638–39.

Kolov’s omissions, however, differ in important respects. Kolov claimed that he suffered

ethnic persecution in Bulgaria, which he supported by cataloging specific incidents. Kolov

described several incidents of harassment or violence in his interview, but he failed to mention

the November 2013 restaurant incident or the May 2012 coffee shop incident. Kolov also failed

to include either incident in his Form I-589, despite describing several other incidents within his

application. He did include the November 2013 incident in his attached declaration, but he still

did not mention the events from May 2012.

When questioned about these omissions, Kolov claimed that the flow of the interview did

not give him an opportunity to disclose the incidents. But before the asylum officer wrapped up

the interview, she asked Kolov whether he had any additional information that they had not

discussed, and he responded that he did not. And when the officer asked whether the summary

of Kolov’s claims was accurate, he indicated that it was. These prompts discredit Kolov’s

contention that he had no opportunity to mention the November 2013 or May 2012 incident

during the interview.

Considering the totality of the circumstances, the record supports the BIA’s adverse

credibility finding. Unlike in Liti, Kolov’s testimony did not simply add form and detail to

generalized statements in his written application. Instead, from the outset, Kolov’s claim was

built on identifying specific incidents of harassment and asserting that they amounted to

persecution. And despite opportunity to disclose each incident of harassment from the

beginning, Kolov added new instances of ethnic harassment as his claim proceeded. Thus, the

No. 22-3760 Kolov v. Garland Page 14

BIA could reasonably interpret Kolov’s evolving claims as not credible, devised only to

strengthen his claim as it proceeded. See, e.g., Daneshvar v. Ashcroft, 355 F.3d 615, 623 (6th

Cir. 2004) (discrepancies deemed an attempt to enhance the claimed persecution may bear on

credibility). Assuredly, a reasonable adjudicator would not be compelled to find the opposite.

IV.

We deny the petition for review.

No. 22-3760 Kolov v. Garland Page 15

___________________

CONCURRENCE

___________________

MURPHY, Circuit Judge, concurring. This case shows that there might be a “butterfly

effect” in law, not just nature. Congress permits immigrants in removal proceedings to obtain

judicial review of just one thing: a “final order of removal.” 8 U.S.C. § 1252(a)(1). And

Congress requires immigrants to petition for that review within 30 days—a time limit that courts

have treated as jurisdictional. See Stone v. INS, 514 U.S. 386, 405 (1995). As with any

jurisdictional issue, then, immigrants need clear guidance on what qualifies as the “final order of

removal” from which they must seek review in 30 days. See Direct Mktg. Ass’n v. Brohl, 575

U.S. 1, 14 (2015).

Courts traditionally read the phrase “final order of removal” (or its predecessor, “final

order of deportation”) broadly to cover the rejection of many types of claims in removal

proceedings. Yet two recent decisions on unrelated issues—Nasrallah v. Barr, 140 S. Ct. 1683

(2020), and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021)—may have (intentionally or

not) uprooted this traditional view. These decisions implicate two questions critical to any

petition for review: What orders qualify as the “orders of removal” from which immigrants may

seek review? And when do those orders become “final”? Given the emerging conflict on the

effect of these decisions, the Supreme Court may eventually have to intervene. Compare

Argueta-Hernandez v. Garland, 73 F.4th 300, 302–03 (5th Cir. 2023) (per curiam); and

Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190–95 (2d Cir. 2022), with Arostegui-Maldonado v.

Garland, __ F.4th __, 2023 WL 4880441, at *5–6 (10th Cir. Aug. 1, 2023), and Salinas-

Montenegro v. Garland, 2023 WL 3243985, at *1 n.1 (9th Cir. May 4, 2023) (mem.). In the

meantime, I agree that we should stick with our current approach. I write to flag some contexts

in which Nasrallah and Johnson might matter.

1. Traditional Interpretation of Judicial-Review Provision

In 1961, Congress amended the Immigration and Nationality Act to give circuit courts the

“exclusive” power to review “all final orders of deportation[.]” Act of Sept. 26, 1961, Pub. L.

No. 22-3760 Kolov v. Garland Page 16

No. 87-301, § 5(a), 75 Stat. 651 (codified at 8 U.S.C. § 1105a(a) (1964)). At that time, Congress

left the phrase “final order of deportation” undefined.

The Supreme Court and our court interpreted the phrase broadly. See Foti v. INS, 375

U.S. 217, 222 (1963); Perkovic v. INS, 33 F.3d 615, 618 (6th Cir. 1994). The Supreme Court

held that “final order of deportation” included (and gave circuit courts the power to review) more

than just the “adjudication of deportability” (that is, the finding that an immigrant was

deportable). Foti, 375 U.S. at 222. The Court read the phrase to include other decisions made

during a deportation proceeding, including the denial of suspension of deportation. Id. We

likewise held that the phrase reached decisions to deny “applications for withholding of

deportation or for asylum[.]” Perkovic, 33 F.3d at 618; see also Gumbol v. INS, 815 F.2d 406,

408 (6th Cir. 1987). Like the well-known final-judgment rule, this reading eliminated the

inefficient “[b]ifurcation” of appeals by allowing immigrants to seek review of all issues at once

after the Board of Immigration Appeals resolved them. Foti, 375 U.S. at 232; cf. Microsoft

Corp. v. Baker, 582 U.S. 23, 36–37 (2017). In addition, the Supreme Court also read the phrase

to reach some later Board decisions that came after a “final order of deportation,” including a

denial of a motion to reopen the deportation proceeding. See Cheng Fan Kwok v. INS, 392 U.S.

206, 211 (1968) (discussing Giova v. Rosenberg, 379 U.S. 18 (1968) (per curiam)); see also INS

v. Chadha, 462 U.S. 919, 928, 937–39 (1983).

If this precedent governed here, nobody would question our jurisdiction over Nikolay

Kolov’s petition for review. After the government removed Kolov to Bulgaria, he returned to

this country. An immigration officer found him removable and reinstated his prior order of

removal. 8 U.S.C. § 1231(a)(5). Claiming that he would be harmed back in Bulgaria, Kolov

then sought withholding of removal under 8 U.S.C. § 1231(b)(3)(A) and the Convention Against

Torture (CAT). An immigration judge denied that relief, and the Board rejected his appeal. This

denial likely would have counted as a “final order of deportation” under Foti. The Court would

have treated the reinstatement of the removal order—like the denial of a motion to reopen that

order—as part of the deportation “proceeding.” Cheng Fan Kwok, 392 U.S. at 211. And the

decision whether to grant Kolov “withholding” would have counted as an order of deportation

because, if granted, it “would foreclose” his removal to Bulgaria. Perkovic, 33 F.3d at 618.

No. 22-3760 Kolov v. Garland Page 17

2. Congress’s 1996 Changes

In 1996, however, Congress passed two laws that revamped this review framework. In

the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress stripped courts of

jurisdiction to review a “final order of deportation” of an immigrant who had committed certain

crimes. See Pub. L. No. 104-132, § 440(a), 110 Stat. 1214, 1276–77 (codified as amended at 8

U.S.C. § 1252(a)(2)(C)). More relevant here, AEDPA added a definition for the phrase “final

order of deportation.” It defined “order of deportation” to mean “the order of the special inquiry

officer, or other such administrative officer to whom the Attorney General has delegated the

responsibility for determining whether an alien is deportable, concluding that the alien is

deportable or ordering deportation.” Id. § 440(b), 110 Stat. at 1277 (codified at 8 U.S.C.

§ 1101(a)(47)(A)). It then stated that this “order” became “final upon the earlier of” “a

determination by the Board of Immigration Appeals affirming such order” or “the expiration of

the period in which the alien is permitted to seek review of such order by the Board[.]” Id.

(codified at 8 U.S.C. § 1101(a)(47)(B)).

Next, in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),

Congress rearranged the provisions governing our review of orders of deportation. See

Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-607 to -612. IRRIRA moved those provisions to

their current home: 8 U.S.C. § 1252. It also changed the language in the provisions (and

elsewhere) from “final order of deportation” to “final order of removal.” Id. § 1252(a)

(emphasis added). For some reason, Congress still kept the phrase “order of deportation” rather

than “order of removal” in the “definitions” section. 8 U.S.C. § 1101(a)(47). But courts have

read those phrases to mean the same thing, see, e.g., Nasrallah, 140 S. Ct. at 1692; Bhaktibhai-

Patel, 32 F.4th at 189 n.11, and I will refer to them interchangeably as well. Lastly, IRRIRA

restricted judicial review of final orders of removal in other ways. It, for example, prohibited our

review of certain discretionary decisions, 8 U.S.C. § 1252(a)(2)(B), and banned our review

through avenues other than “a final order under this section,” id. § 1252(b)(9).

No. 22-3760 Kolov v. Garland Page 18

3. Judicial Interpretation of 1996 Changes

In the years after these 1996 changes, courts seemingly continued to follow Foti’s broad

reading of “final order of removal.” They did so without giving much thought to AEDPA’s new

definitions of “final” and “order of deportation.” At least three examples prove my point.

Example One: Motions to Reopen. Under the Foti regime, the Supreme Court held that

the denial of a motion to reopen a final order of deportation counted as a distinct “final order of

deportation” reviewable by the courts. Cheng Fan Kwok, 392 U.S. at 211. In two cases after the

1996 changes, the Court continued to treat these denials as reviewable “final orders of removal”

without asking whether they fit within AEDPA’s definition. See Mata v. Lynch, 576 U.S. 143,

147–48 (2015) (citing Kucana v. Holder, 558 U.S. 233, 242, 253 (2010)). In one case, the Court

held that courts had jurisdiction to review the Board’s denial of an untimely motion to reopen.

See id. at 147–51. In the other, it held that IIRIRA’s ban on the review of the Board’s

discretionary decisions did not cover denials of motions to reopen. Kucana, 558 U.S. at 242–52.

Example Two: “Mixed” Board Decisions. In ordinary removal proceedings, the Board

often affirms a conclusion that an immigrant is removable but remands for more proceedings on

the immigrant’s claims for withholding of removal under § 1231(b)(3)(A) or CAT. See, e.g.,

Chupina v. Holder, 570 F.3d 99, 103–04 (2d Cir. 2009) (per curiam); Kouambo v. Barr, 943 F.3d

205, 208–09 (4th Cir. 2019); Abdisalan v. Holder, 774 F.3d 517, 520–21 (9th Cir. 2014) (en

banc); Mahecha-Granados v. Holder, 324 F. App’x 735, 737–39 (10th Cir. 2009). Such a mixed

decision might have been considered a “final order of removal” under AEDPA’s definition

because it “affirm[ed]” the “order” that the immigrant was “deportable” and required more

proceedings only on the withholding issue. 8 U.S.C. § 1101(a)(47). Most courts rejected this

reading. They held that an order of removal did not become “final” until the Board resolved all

claims that could affect the order. See Kouambo, 943 F.3d at 211–14. And they believed that

withholding claims could affect the order because those claims would bar an immigrant’s

removal to the country listed. See Chupina, 570 F.3d at 103–04. Conversely, courts held that an

order of removal became “final” if the Board remanded on matters that could not affect the

order—such as a motion to voluntarily depart the country. See Giraldo v. Holder, 654 F.3d 609,

612–15 (6th Cir. 2011) (citing cases).

No. 22-3760 Kolov v. Garland Page 19

Example Three: Withholding-Only Orders. IIRIRA amended the expedited removal

process for immigrants like Kolov who return to the United States after the government has

removed them. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33–35 (2006). This

amendment instructed the Attorney General to “reinstate[]” “the prior order of removal” and

added that the immigrant was “not eligible and may not apply for any relief under this chapter[.]”

8 U.S.C. § 1231(a)(5). Despite this categorical ban on relief, the Attorney General interpreted

the law to allow these immigrants to seek withholding under § 1231(b)(3)(A) or CAT. 8 C.F.R.

§ 1241.8(e).

When an immigrant seeks withholding-only relief, what (if anything) counts as the “order

of removal” and when does it become “final”? Most courts treated an order reinstating the

removal order as a distinct “order of removal” even after AEDPA. See Moreno-Martinez v.

Barr, 932 F.3d 461, 463–65 (6th Cir. 2019); Villegas de la Paz v. Holder, 640 F.3d 650, 654,

656 (6th Cir. 2010); see also Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003); Garcia-Villeda v.

Mukasey, 531 F.3d 141, 150 (2d Cir. 2008); Dinnall v. Gonzales, 421 F.3d 247, 251 n.6 (3d Cir.

2005); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 294–45 (5th Cir. 2002); Gomez-Chavez v.

Perryman, 308 F.3d 796, 801 (7th Cir. 2002); Briones-Sanchez v. Heinauer, 319 F.3d 324, 326

(8th Cir. 2003); Castro-Cortez v. INS, 239 F.3d 1037, 1043–44 (9th Cir. 2001), abrogated by

Fernandez-Vargas, 548 U.S. at 36 n.5; Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3

(10th Cir. 2003); Avila v. U.S. Att’y Gen., 560 F.3d 1281, 1284 (11th Cir. 2009).

And most courts held that this unique order of removal became “final” (and so judicially

reviewable) only after an immigrant litigated to the Board any claims for withholding of

removal. See Ponce-Osorio v. Johnson, 824 F.3d 502, 505–06 (5th Cir. 2016) (per curiam);

Ortiz-Alfaro v. Holder, 694 F.3d 955, 957–58 (9th Cir. 2012); Luna-Garcia v. Holder, 777 F.3d

1182, 1185 (10th Cir. 2015); Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d 1307, 1308 (11th Cir.

2016).

4. Effects of Nasrallah and Johnson

The Supreme Court’s decisions in Nasrallah and Johnson implicate all three examples.

In Nasrallah, the Board both affirmed an immigration judge’s order finding an immigrant

No. 22-3760 Kolov v. Garland Page 20

removable and reversed the judge’s order granting the immigrant protection under CAT.

140 S. Ct. at 1688. The immigrant sought judicial review of the factual findings that led the

Board to deny his CAT claim. Id. at 1688–89. Yet because the immigrant had been criminally

convicted, AEDPA’s jurisdictional limit barred the court from reviewing the factual findings

underlying the “final order of removal.” See 8 U.S.C. § 1252(a)(2)(C)–(D). The immigrant

argued that the denial of his CAT claim was not part of the “final order of removal” and so not

subject to this limit on review of factual findings. Nasrallah, 140 S. Ct. at 1689.

The Court agreed. Id. at 1690–94. It held that a decision granting or denying CAT

protection does not itself qualify as an “order of deportation” under AEDPA’s definition because

it does not “conclud[e]” that an immigrant is “deportable or order[] deportation” of the

immigrant. Id. at 1692 (quoting 8 U.S.C. § 1101(a)(47)(A)). Why? The Court reasoned that

even a grant of CAT relief would not “disturb” the Board’s removability finding. Id. at 1691.

That is because such a grant would prohibit the immigrant’s removal only to a specific country

and would not undermine the general conclusion that the immigrant is removable or bar removal

to other places. Id. This view, though, came with a problem: How did a court even have

jurisdiction to review a CAT denial since the judicial-review provision gave it jurisdiction only

of a “final order of removal”? 8 U.S.C. § 1252(a)(1). The Court held that another statute made

the denial of CAT protection reviewable “as part of the review of [the] final order of removal”

that this denial accompanied. Nasrallah, 140 S. Ct. at 1691 (quoting Foreign Affairs Reform and

Restructuring Act of 1998, § 2242(d), 112 Stat. 2681–822, note following 8 U.S.C. § 1231).

In Johnson, the Court next considered a question about the detention of immigrants like

Kolov who have had their prior orders of removal reinstated and who seek withholding-only

relief under § 1231(b)(3)(A) or CAT. 141 S. Ct. at 2280. The immigration laws require the

government to “detain” all immigrants subject to orders of removal during a 90-day window

(defined as the “removal period”) in which it must remove them. 8 U.S.C. § 1231(a)(1)(C),

(a)(2). This “removal period” begins on, among other dates, “[t]he date the order of removal

becomes administratively final.” Id. § 1231(a)(1)(B)(i). Johnson held that an immigrant’s

reinstated order of removal becomes “administratively final” when the order gets reinstated—

even if the immigrant continues to seek withholding-only relief under § 1231(b)(3)(A) or CAT.

No. 22-3760 Kolov v. Garland Page 21

141 S. Ct. at 2284–85. Like Nasrallah, the Court reasoned that a reinstated removal order is

final when issued because a grant of withholding would not change the immigrant’s removability

from the United States. See id. at 2285–88. It would only bar the immigrant’s removal to a

specific country. See id.

Nasrallah and Johnson did not consider the scope of our jurisdiction. But the decisions

could affect all three examples that I have identified (and perhaps others).

Example One: Motions to Reopen. The Supreme Court’s traditional view that the denial

of a motion to reopen removal proceedings qualifies as a reviewable “final order of removal” has

rested more on Foti’s broad reading than on AEDPA’s definition. The Court in Kucana even

relied on pre-1996 cases as the support for its suggestion that courts retained jurisdiction over

denials of motion to reopen after 1996. See 558 U.S. at 242. To be sure, one might have read

AEDPA’s generic definition of “order of deportation”—an “order” “concluding that the alien is

deportable or ordering deportation,” 8 U.S.C. § 1101(a)(47)(A)—as merely codifying the pre-

1996 regime. But Nasrallah rejected this view. It suggested that AEDPA’s text defined “final

‘order of deportation’ more narrowly than [the] Court interpreted the term in Foti.” 140 S. Ct. at

1692.

Nasrallah’s logic thus calls into question our jurisdiction over denials of motions to

reopen. Indeed, neither Mata nor Kucana even mentioned AEDPA’s definition of “order of

removal,” let alone considered whether the denial of a motion to reopen fell within the definition.

The key question now will be whether such a denial qualifies as an “order” “concluding that the

alien is deportable or ordering deportation” under Nasrallah’s narrower view of that phrase.

8 U.S.C. § 1101(a)(1)(A). The answer is not obvious to me. On the one hand, the earlier “final

order of removal” will have found that the immigrant is removable and ordered the immigrant’s

removal; the denial of the motion to reopen will have simply refused to reopen proceedings. On

the other hand, perhaps immigrants could assert that a specific denial “conclud[es]” that they are

“removable” if their motion to reopen expressly made arguments that would have overturned the

final order’s prior “removability” finding. In other words, if “the validity of the final order [was]

contingent” on the denial of the motion to reopen, that denial might still qualify as a “final order

of removal” under Nasrallah. 140 S. Ct. at 1691 (quoting Chadha, 462 U.S. at 938).

No. 22-3760 Kolov v. Garland Page 22

Yet an immigrant’s motion to reopen may often concede removability and challenge only

an earlier denial of withholding under § 1231(b)(3)(A) or CAT. After all, the immigration laws

set no time limit on motions to reopen seeking withholding based on “changed country

conditions” in the country “to which removal has been ordered[.]” 8 U.S.C. § 1229a(c)(7)(C)(ii);

cf. Kucana, 558 U.S. at 240 & n.5. But Nasrallah held that CAT denials are not “orders of

removal” under AEDPA’s definition because they do not “conclud[e] that the alien is deportable

or order[] deportation.” 140 S. Ct. at 1691. Johnson extended this reasoning to statutory

withholding claims. 141 S. Ct. at 2287–88. At the least, then, these cases could affect our ability

to review the (potentially large) subset of motions to reopen that seek withholding under

§ 1231(b)(3)(A) or CAT. So even though Congress did not strip courts of their prior jurisdiction

to review denials of motion to reopen in IRRIRA’s express provisions limiting judicial review,

see Kucana, 558 U.S. at 249–50, Nasrallah’s logic might suggest that Congress did so through a

bland definition of “order of deportation” in a law (AEDPA) that primarily concerned criminal

immigrants.

Example Two: “Mixed” Board Decisions. Nasrallah and Johnson also could alter how

courts treat “mixed” Board decisions (decisions in ordinary removal proceedings that affirm an

immigration judge’s removability finding but remand for further consideration of withholding

claims under § 1231(b)(3)(A) or CAT). Courts typically held that these decisions were not

“final” (and so not immediately reviewable) because the pending request for withholding could

“affect” the order finding an immigrant removable to a country. See, e.g., Chupina, 570 F.3d at

103.

Yet Nasrallah and Johnson seemingly reject this reasoning. Nasrallah held that “the

Board’s ruling on a CAT claim does not affect the validity of the final order of removal” because

the requested relief would only bar the immigrant’s removal to a specific country. 140 S. Ct. at

1691. And Johnson likewise held that “the finality of [an] order of removal does not depend in

any way on the outcome” of a withholding claim under § 1231(b)(3)(A). 141 S. Ct. at 2287.

This logic has repercussions for both parts of a “mixed” Board decision: the part

affirming removability and the part remanding withholding claims. Start with the part affirming

removability. If it now qualifies as the “final” order under 8 U.S.C. § 1101(a)(47)(B),

No. 22-3760 Kolov v. Garland Page 23

immigrants must petition a court for review of the order within 30 days while they continue to

litigate their withholding claims in removal proceedings. Id. § 1252(b)(1). And since courts

treat the 30-day limit as jurisdictional, see Stone, 514 U.S. at 405, the failure to file this petition

could bar judicial review of these otherwise interlocutory orders at the end of those removal

proceedings.

Turn to the part remanding the withholding claims. Suppose the immigration judge later

issues a second order denying withholding under § 1231(b)(3)(A) and CAT and the Board

affirms this denial. Would this second order be a distinct “final order of removal” under

AEDPA’s definition? Nasrallah suggests that CAT denials fall outside that definition. 140

S. Ct. at 1691. It found that courts could review these denials only because another statute made

them “reviewable ‘as part of the review of a final order of removal’ under 8 U.S.C. § 1252.” Id.

(emphasis added) (citation omitted). It thus treated as critical the fact that the CAT denial arose

as “part” of the final order of removal. In “mixed” decisions, though, CAT denials come later—

separate from the “order of removal.” Should this happenstance of the administrative process

eliminate our ability to review these denials? Cf. Kouambo, 943 F.3d at 213–14. What sense

would it make to allow courts to review withholding claims if they arise from a single Board

decision in the removal proceeding but not if they arise from a later Board decision in that

proceeding?

Example Three: Withholding-Only Orders. Nasrallah and Johnson lastly could alter how

courts treat withholding-only proceedings. Courts typically held that an order reinstating a prior

order of removal was not “final” if immigrants had pending applications for withholding under

§ 1231(b)(3)(A) or CAT. See Luna-Garcia, 777 F.3d at 1185. Like the courts reviewing

“mixed” Board decisions, these courts reasoned that the pending withholding claims could affect

“the rights, obligations, and legal consequences of the reinstated removal order[.]” Id. As the

Second Circuit recognized, however, this logic sits uncomfortably next to Johnson, which found

the reinstated removal order “administratively final” for detention purposes even if withholding

claims remained pending. Bhaktibhai-Patel, 32 F.4th at 193–95; see also Johnson, 141 S. Ct. at

2287.

No. 22-3760 Kolov v. Garland Page 24

That leaves two possibilities for why denials of withholding in withholding-only

proceedings nevertheless remain reviewable. I find both debatable after Nasrallah and Johnson.

Possibility One: An immigrant might argue that the reinstated order of removal is not

“final” for judicial-review purposes even if it is “administratively final” for Johnson’s detention

purposes. Following the Ninth Circuit, we adopted this reasoning in Martinez v. Larose, 968

F.3d 555, 562–63 (6th Cir. 2020). And perhaps we should interpret the word “final” in the

judicial-review provision against the background of the final-judgment rule—which presumes

that there will be one appeal at the end of proceedings rather than many appeals in “fits and

starts” after each order. Kouambo, 943 F.3d at 211; see also Microsoft, 582 U.S. at 36–37. By

comparison, this final-judgment background presumption would have no application for

detention purposes. Moreover, even if the grant of withholding would not affect an immigrant’s

general removability, it would at least alter the terms of a removal order by barring removal to

the specific country that the order lists—in Kolov’s case, Bulgaria. A.R. 565. In that sense, the

Board’s decision affirming the denial of withholding can be seen as a “determination”

“affirming” a reinstated removal order without change. 8 U.S.C. § 1101(a)(47)(B)(i). Yet, as

the Second Circuit countered, Johnson causes problems for this theory because courts seldom

read the same word to have different meanings in the same law. See Bhaktibhai-Patel, 32 F.4th

at 194.

Possibility Two: Even if the reinstated order of removal is a “final order of removal”

(subject to the 30-day petition-for-review window), the later order denying withholding in

withholding-only proceedings could qualify as a separate “final order of removal.” In that

respect, courts have reasoned that even the grant of withholding fits AEDPA’s definition of

“order of removal” given that the grant must contain an “explicit order of removal” because the

government can remove the immigrant to other countries. Kouambo, 943 F.3d at 210 (quoting

Matter of I-S & C-S-, 24 I. & N. Dec. 432, 434 (B.I.A. 2008)); see also Chupina, 570 F.3d at

104. The grant thus could be seen as an “order” “ordering deportation.” 8 U.S.C.

§ 1101(a)(47)(A). And the denial of withholding could likewise be seen as an order “ordering

deportation” to the country that the immigrant sought to avoid by filing for withholding. Id.

Yet, as the Second Circuit also countered, Nasrallah causes problems for this alternative theory

No. 22-3760 Kolov v. Garland Page 25

because it suggests that a CAT denial does not fall within AEDPA’s definition. See Bhaktibhai-

Patel, 32 F.4th at 190–91.

For what it is worth, the Supreme Court might agree with one of these theories because it

recently reviewed the denial of withholding in withholding-only proceedings. See Santos-

Zacaria v. Garland, 143 S. Ct. 1103, 1110–11 (2023). Then again, maybe not. Santos-Zacaria

did not consider this jurisdictional issue. And the Court refuses to treat “drive-by” jurisdictional

rulings as binding. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998).

* * *

In the end, whether the Supreme Court’s decisions in Nasrallah and Johnson have

ushered in these significant changes to longstanding judicial-review practices is for the Supreme

Court to decide. Until it does, I agree that we should continue to follow our current approach.