Patria Laureano v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of an Order of the…

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

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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

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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.

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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.

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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.

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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))).

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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

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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).

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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

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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

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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

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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.

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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.

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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.

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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

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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

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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

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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 of 52 --

19
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 of 52 --

20
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 of 52 --

21
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 of 52 --

22
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 of 52 --

23
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 of 52 --

24
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 of 52 --

25
§ 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 of 52 --

26
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 of 52 --

1
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)).

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2
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

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3
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.

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4
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

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5
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

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6
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

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7
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

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8
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.

-- 34 of 52 --

1
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

-- 35 of 52 --

2
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.

-- 36 of 52 --

3
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.

-- 37 of 52 --

4
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

-- 38 of 52 --

5
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).

-- 39 of 52 --

6
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

-- 40 of 52 --

7
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)).

-- 41 of 52 --

8
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.

-- 42 of 52 --

9
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)).

-- 43 of 52 --

10
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

-- 44 of 52 --

11
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

-- 45 of 52 --

12
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.”).

-- 46 of 52 --

13
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.

-- 47 of 52 --

14
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

-- 48 of 52 --

15
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).

-- 49 of 52 --

16
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

-- 50 of 52 --

17
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.

-- 51 of 52 --

18
Lacking jurisdiction, we should dismiss Laureano’s pe-
tition and so I respectfully dissent.

-- 52 of 52 --