22-6024, 22-6349 Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi 1 United States Court of Appeals 1 for the Second…

22-6024, 22-6349
Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi
1
United States Court of Appeals 1
for the Second Circuit 2
3
August Term, 2023 4
5
Argued: April 18, 2024 6
Decided: July 8, 2025 7
__________________ 8
9
Docket No. 22-6024 10
11
VILMA ESPERANZA CASTEJON-PAZ, 12
13
Petitioner, 14
15
v. 16
17
PAMELA BONDI, UNITED STATES ATTORNEY GENERAL 18
19
Respondent. * 20
_____________________________________ 21
22
Docket No. 22-6349 23
24
GERMAN ALEJANDRO CERRATO-BARAHONA, 25
26
Petitioner, 27
28
v. 29
30
PAMELA BONDI, UNITED STATES ATTORNEY GENERAL 31
32
Respondent.** 33
* The Clerk of Court is respectfully directed to amend the official caption as set forth above.
** The Clerk of Court is respectfully directed to amend the official caption as set forth above.

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22-6024, 22-6349
Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi
2
_________________ 1
2
On Petition for Review from Orders 3
of the Department of Homeland Security 4
_________________ 5
Before: CALABRESI, PARKER, and PARK, Circuit Judges. 6
7
8 U.S.C. § 1252(b)(1) states that, in immigration proceedings, “[t]he petition 8
for review must be filed not later than thirty days after the date of the final order 9
of removal.” Our court held in Bhaktibhai-Patel v. Garland that this rule was 10
jurisdictional and stripped us of the ability to review untimely petitions. 32 F.4th 11
180, 188 (2d Cir. 2022). Recently, in Riley v. Bondi, the Supreme Court disagreed 12
and held that § 1252(b)(1) is not a jurisdictional rule, but a claim-processing 13
requirement that may be waived by the parties. No. 23-1270, 2025 WL 1758502, at 14
*10 (U.S. June 26, 2025). 15
Petitioners Castejon-Paz and Cerrato-Barahona filed for review well over 16
thirty days after their final removal orders. Although this would have divested 17
our court of jurisdiction under Bhaktibhai-Patel, we hold that Bhaktibhai-Patel’s 18
jurisdictional holding has been abrogated by Riley. Because the thirty-day filing 19
deadline is nonjurisdictional and the Government has waived application of it to 20
the petitions, in the cases before us, § 1252(b)(1) poses no bar to our court hearing 21
either petition. 22
These petitions were referred (along with a motion to dismiss for lack of 23
jurisdiction in Cerrato-Barahona’s case) to our panel to decide the jurisdictional 24
question. We today hold that our court has jurisdiction, DENY the motion to 25
dismiss in Cerrato-Barahona’s case and respectfully order the Clerk of Court to 26
order briefing on the merits and to assign both petitions to appropriate panels in 27
the ordinary course. 28
_____________________________________ 29
30
J ON E. JESSEN, Law Offices of Jon E. Jessen, LLC, 31
Stamford, CT, for Petitioner Castejon-Paz 32
33
XAVIER A. PALACIOS , Palacios Law Group, Mineola, NY, 34
for Petitioner Cerrato-Barahona 35

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Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi
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1
D AWN S. C ONRAD (Erica B. Miles, Assistant Director, on 2
the brief), Senior Litigation Counsel, Office of 3
Immigration Litigation, for Brian M. Boynton, Principal 4
Deputy Assistant Attorney General, Civil Division, U.S. 5
Department of Justice, Washington, DC, for Respondent 6
7
T RINA R EALMUTO (Kristin Macleod-Ball, on the brief), 8
National Immigration Litigation Alliance, Brookline, 9
MA, for amici curiae National Immigration Litigation 10
Alliance, Bronx Defenders, Brooklyn Defender Services, Legal 11
Aid Society, and Make the Road New York 12
13
T HOMAS S COTT-RAILTON (John Harland Giammatteo, 14
State University of New York at Buffalo School of Law, 15
Buffalo, NY, on the brief), Gupta Wessler LLP, 16
Washington, DC, for amici curiae Richard Frankel, Amanda 17
Frost, John Harland Giammatteo, David Hausman, David C. 18
Vladeck, and Tiffany Yang 19
20
R. TRENT MCC OTTER (Gene P. Hamilton, America First 21
Legal Foundation, Washington, DC, on the brief), Boyden 22
Gray PLLC, Washington, DC, for amicus curiae America 23
First Legal Foundation 24
_____________________________________ 25
26
C ALABRESI, Circuit Judge: 27
8 U.S.C. § 1252(b)(1) states that, in immigration proceedings, “[t]he petition 28
for review must be filed not later than thirty days after the date of the final order 29
of removal.” In these tandem appeals, two petitioners sought judicial review of 30
their immigration proceedings well beyond thirty days after their removal orders. 31

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This raised—in both cases—a threshold question of whether our court has 1
jurisdiction to hear these petitions under § 1252(b)(1). We hold today that we do. 2
Although noncitizens subject to a reinstated removal order are not eligible 3
“for any relief” under the Immigration Nationality Act, 8 U.S.C. § 1231(a)(5), the 4
United States adheres to two treaties that prohibit the removal of a noncitizen to a 5
country when the noncitizen faces a threat of persecution or torture in that 6
country.1 Proceedings pursuant to these treaties do not contest the Government’s 7
right to remove the individual, but instead determine whether removal to a 8
specific country should be withheld. Accordingly, they are known as 9
“withholding-only proceedings.” Johnson v. Guzman Chavez, 594 U.S. 523, 530 10
(2021). 11
Petitioner Vilma Esperanza Castejon-Paz, a citizen of Honduras, was subject 12
to a 2012 removal order that was reinstated in 2014. She initiated withholding- 13
only proceedings, asserting that she feared persecution in Honduras at the hands 14
1 Pursuant to these treaties, the United States allows for withholding of removal either when a person’s
“life or freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion,” United Nations Convention Relating to the Status of
Refugees, July 28, 1951, art. 33(1), 19 U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176; see also 8 U.S.C.
§ 1231(b)(3)(A), or “there are substantial grounds for believing that he would be in danger of being
subjected to torture” in that country, United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, December 10, 1984, art. 3, 1465 U.N.T.S. 85; see also 8
CFR §§ 208.16–208.17, 1208.16–1208.17.

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22-6024, 22-6349
Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi
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of the MS-13 gang and of her abusive ex-husband. In a December 2021 order, an 1
immigration judge agreed with the asylum officer’s determination that Castejon- 2
Paz had failed to tie her fear of persecution to a statutorily protected ground. 3
Castejon-Paz petitioned this court for review in January 12, 2022. 4
Petitioner German Alejandro Cerrato-Barahona, a citizen of Honduras, was 5
subject to an October 2010 removal order that was reinstated in June 2019. His 6
July 2022 petition seeks review of a June 2022 order in his withholding-only 7
proceedings, in which the immigration judge, agreeing with an asylum officer’s 8
determination, held that Cerrato-Barahona had failed to demonstrate credibly any 9
reasonable possibility of persecution or torture. 10
Under 8 U.S.C. § 1252(b)(1), “[t]he petition for review must be filed not later 11
than thirty days after the date of the final order of removal.” In Bhaktibhai-Patel v. 12
Garland, we held (1) that adverse determinations in withholding-only proceedings 13
are not “final order[s] of removal” under § 1252(b)(1); and (2) also that the thirty- 14
day filing requirement was jurisdictional, and when not satisfied, deprived us of 15
the power to review a petition.2 32 F.4th 180, 188 (2d Cir. 2022). Operating in 16
2 To be clear, Bhaktibhai-Patel was not written on a blank slate. Instead, the case applied previous cases
interpreting § 1252(b)(1). Bhaktibhai-Patel, 32 F.4th at 188 (citing Ruiz-Martinez v. Mukasey, 516 F.3d 102,
118 (2d Cir. 2008) (“§ 1252(b)(1) is indeed jurisdictional in nature.”)). We refer to Bhaktibhai-Patel
throughout this opinion, however, for two reasons: (1) it is the most recent precedential affirmation of our
holding that § 1252(b)(1) is jurisdictional and (2) it was the first instance in which we held that an

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Castejon-Paz v. Bondi, Cerrato-Barahona v. Bondi
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tandem, Bhaktibhai-Patel’s two holdings prevented courts from reviewing petitions 1
where the petitioner did not appeal within thirty days of the final order of removal. 2
Because Petitioners filed their petitions more than thirty days after their final 3
orders of removal, Bhaktibhai-Patel required that we dismiss these appeals for lack 4
of jurisdiction. Bhaktibhai-Patel’s jurisdictional holding, however, was abrogated 5
by the Supreme Court in Riley v. Bondi, which held that § 1252(b)(1)’s thirty-day 6
filing deadline is not jurisdictional. Riley v. Bondi, No. 23-1270, 2025 WL 1758502, 7
at *10 (U.S. June 26, 2025). Accordingly, Bhaktibhai-Patel’s holding that 8
§ 1252(b)(1)’s thirty-day filing requirement is jurisdictional is no longer the law of 9
our Circuit. 10
In Riley, the Supreme Court expressly held that § 1252(b)(1)’s thirty-day 11
filing deadline is a “claim-processing rule,” Riley, 2025 WL 1758502 at *8, that can 12
be subject to waiver or forfeiture, see Wilkins v. United States, 598 U.S. 152, 158 13
(2023). Here, the Government waived application of the thirty-day filing rule as 14
to both petitions. As a result, § 1252(b)(1) poses no bar to our court resolving these 15
petitions on their merits. 16
immigration judge’s final disposition of withholding-only proceedings did not constitute a final order as
described in § 1252(b)(1).

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CONCLUSION 1
Riley held that § 1252(b)(1) is a claim-processing rule, and accordingly 2
Bhaktibhai-Patel’s jurisdictional holding is no longer the law of our Circuit. We 3
therefore DENY Respondent’s motion to dismiss Cerrato-Barahona’s petition for 4
lack of jurisdiction. And since the Government has waived the thirty-day filing 5
deadline, § 1252(b)(1) does not bar our court from hearing these petitions. Having 6
settled the jurisdiction question posed to us, in the interest of judicial economy, we 7
respectfully direct the Clerk of Court to order briefing on the merits in both these 8
cases and to assign them to appropriate panels in the ordinary course. 9

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