CA10 on CAT, Jurisdiction: Arostegui-Maldonado v. Garland

Arostegui-Maldonado v. Garland

"Petitioner Dennis Humberto Arostegui-Maldonado, a citizen of Costa Rica and El Salvador, was removed from the United States in 2008. In 2021, he reentered. The Department of Homeland Security (“DHS”) reinstated his removal order. Mr. Arostegui-Maldonado told an asylum officer that he feared persecution or torture in Costa Rica and El Salvador. The officer referred his case to an Immigration Judge (“IJ”) for “withholding-only proceedings” to decide whether to forbid his removal to those countries. The IJ denied relief. The Board of Immigration Appeals (“BIA”) affirmed. Mr. Arostegui-Maldonado petitioned for review. We address jurisdiction and merits questions. First, the Government moves to dismiss for lack of jurisdiction because Mr. Arostegui-Maldonado did not file his petition within 30 days of the reinstated order of removal. Instead, he filed it within 30 days of the BIA’s order affirming the IJ’s decision to deny relief. The petition was timely under Luna-Garcia v. Holder, 777 F.3d 1182 (10th Cir. 2015), but the Government contends that Luna-Garcia is no longer good law after the Supreme Court’s decisions in Nasrallah v. Barr, 140 S. Ct. 1683 (2020), and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021). We disagree and deny the Government’s motion to dismiss. Second, Mr. Arostegui-Maldonado challenges the agency’s rulings on the merits. He argues (1) the IJ misapplied the “under color of law” element to his Convention Against Torture (“CAT”) claim, (2) the BIA ignored his CAT claim, (3) the IJ failed to fully develop the record, and (4) the IJ and the BIA violated his due process rights. We agree with Mr. Arostegui-Maldonado that the IJ misapplied “under color of law” to his CAT claim. We grant the petition on that ground but deny it on the others."

[Hats off to Laura Lunn, Thomas P. Johnson, Sarah Barr, Anand Balakrishnan, Lee Gelernt, Spencer Amdur, Cody H. Wofsy, Kristin Macleod-Ball and Trina Realmuto!]