CAT-Only Petitions Are Not Reviewable Absent a Petition Challenging a Final Removal Order (11th Cir.)

1. Introduction

This case arises from the increasingly common procedural posture in which the government issues a final administrative removal order, while the noncitizen simultaneously litigates “withholding-only” protection claims (here, CAT deferral) in separate proceedings. Winston Lloyd Hayles, a Jamaican citizen convicted of aggravated felonies in the United States, sought deferral of removal under the CAT, asserting he would likely be tortured if returned to Jamaica. An immigration judge denied CAT relief and the BIA affirmed on November 8, 2023. Separately, the Department of Homeland Security (“DHS”) issued a final administrative removal order on July 13, 2023.

Hayles filed a pro se petition for review that challenged the BIA’s CAT denial but “pointedly did not challenge” the final removal order. The Eleventh Circuit ordered supplemental briefing on whether it had jurisdiction in that circumstance. The central issue was jurisdictional and structural: whether the statutory scheme allows judicial review of a CAT denial standing alone, or only as part of judicial review of a final order of removal.

2. Summary of the Opinion

Judge Brasher, writing for the majority, dismissed the petition for lack of jurisdiction. The court held:

• CAT orders are not “final orders of removal,” and appellate review of CAT determinations is available only when tethered to judicial review of a final removal order.
• Hayles’s pro se petition, even liberally construed, challenged only the BIA’s November 8, 2023 CAT decision and did not challenge the July 13, 2023 final administrative removal order.
• Hayles could not use merits briefing to “amend” the jurisdictionally operative petition; and an implied request to amend would fail because his proposed challenge to the final removal order was “frivolous,” particularly given record evidence that he received (or was provided access to) the required pro bono legal services list.

Judge Abudu concurred in part and dissented in part. While agreeing that Hayles’s proposed challenge to the removal order was frivolous, Judge Abudu disagreed with the majority’s jurisdictional rule. In her view, a CAT petition is “inherently a challenge to the execution of the final order of removal” and should itself trigger jurisdiction under 8 U.S.C. § 1252(a)(1) once a final order exists—even if removability is not disputed.

3. Analysis

A. Precedents Cited

1) The Supreme Court’s “interlocking statutes” framework

• Nasrallah v. Barr, 590 U.S. 573 (2020): The majority relied on Nasrallah’s explanation that “three interlocking statutes” channel CAT review into the petition-for-review mechanism. Nasrallah also clarified the conceptual distinction between (i) a final order of removal and (ii) a CAT order—“[a]n order denying relief under the CAT is not a final order of removal.” The Eleventh Circuit used Nasrallah as a structural anchor: CAT review exists, but Congress specified where and how it occurs.
• Riley v. Bondi, 606 U.S. 259 (2025): The majority quoted Riley for the proposition that CAT denials are not final removal orders and invoked Riley’s jurisdictional implications (while acknowledging that Riley itself did not decide this precise “CAT-only petition” jurisdiction question). The dissent emphasized Riley’s discussion of petitioners who “wish only to contest removal to their native country,” arguing that this undercuts the majority’s jurisdictional limitation.
• Johnson v. Guzman Chavez, 594 U.S. 523 (2021): Cited in the dissent for the proposition that CAT determinations govern whether and how a removal order may be executed, reinforcing the dissent’s “execution-of-order” framing.

2) The emerging circuit split

• Navarrete v. Bondi, 170 F.4th 1214, 1221 (9th Cir. 2026): This is the direct catalyst for the Eleventh Circuit’s holding. The Ninth Circuit held courts of appeals lack jurisdiction over CAT claims “independent of challenges to final orders of removal.” The Eleventh Circuit expressly “agree[d] and adopt[ed] the same rule,” making Navarrete the principal persuasive authority and signaling alignment with the Ninth Circuit’s statutory reading.
• Laureano v. Att'y Gen., No. 24-2433, slip op. at *3-5 (3d Cir. May 29, 2026): The majority identified Laureano as adopting the contrary position, interpreting 8 U.S.C. § 1252(a)(4) as granting jurisdiction over withholding-only orders (including CAT-related orders) without an independent challenge to removability. Judge Abudu’s dissent endorsed the Third Circuit’s view, treating CAT review as within § 1252 once a final order exists.

3) Eleventh Circuit and other authorities on jurisdiction, pleading, and issue identification

• Gelin v. U.S. Att'y Gen., 837 F.3d 1236, 1240 (11th Cir. 2016) and United States v. Alhindi, 124 F.4th 869, 873 (11th Cir. 2024): Cited for the court’s obligation to consider jurisdiction sua sponte and the standard of review (de novo).
• Guerrero-Lasprilla v. Barr, 589 U.S. 221, 230 (2020): Used to explain the “zipper clause” (8 U.S.C. § 1252(b)(9)) as consolidating review into one court-of-appeals action.
• United States v. Jackson, 55 F.4th 846, 853 (11th Cir. 2022): Central to the majority’s response to Hayles’s reliance on older practice. The court emphasized that jurisdictional defects that “lurk in the record” without being addressed are not precedential.
• Reyes-Sanchez v. U.S. Att'y Gen., 369 F.3d 1239, 1240 (11th Cir. 2004): An example of the court exercising jurisdiction without expressly analyzing this precise jurisdictional question; the majority refused to treat that silence as controlling.
• Perrin v. United States, 444 U.S. 37, 42 (1979): Used to justify giving “raised upon” its ordinary meaning when interpreting 8 U.S.C. § 1252(a)(2)(D).
• Monsalvo v. Bondi, 604 U.S. 712, 721-23 (2025): Invoked for the proposition that courts read the petition itself to discern whether jurisdiction exists.
• Ali v. U.S. Att'y Gen., 931 F.3d 1327, 1331 n.2 (11th Cir. 2019) and In re Ellingsworth Residential Cmty. Ass'n, 125 F.4th 1365, 1377 (11th Cir. 2025): Together express the boundary on liberal construction of pro se filings: courts may construe liberally but may not “rewrite” a deficient pleading.
• Poer v. Jefferson Cnty. Comm'n, 100 F.4th 1325, 1337-38 (11th Cir. 2024): Cited for the procedural principle that parties cannot amend a pleading through briefing.
• Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988): Used (by analogy) to discuss the concept of seeking leave to amend appellate jurisdictional documents within time limits.
• Rubinstein v. Yehuda, 38 F.4th 982, 993 (11th Cir. 2022): Applied to deny a proposed amendment where the jurisdiction-invoking challenge would be frivolous.
• Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1223 (11th Cir. 2002): Used to apply a presumption of regularity: absent evidence, the agency is presumed to have complied with its regulations (here, providing a pro bono list).

B. Legal Reasoning

1) The majority’s statutory “tethering” theory

The majority treated jurisdiction as a problem of statutory channeling and consolidation, not merely of subject matter. It built its rule from what it described (borrowing from Nasrallah v. Barr) as “three interlocking statutes”:

• 8 U.S.C. § 1252(a)(1): authorizes petitions for review of “final order[s] of removal.”
• 8 U.S.C. § 1252(b)(9) (the “zipper clause”): provides that “all questions of law and fact ... arising from any action ... to remove an alien” are available “only in judicial review of a final order.”
• 8 U.S.C. § 1252(a)(4) (as reinforced by FARRA § 2242(d) and the REAL ID Act): channels CAT claims into petitions for review and, per the majority’s reading, restricts CAT review to being “part of the review of a final order of removal.”

From these, the court derived an “upshot”: it “cannot review the denial of CAT relief unless there is a petition for review of a final removal order.” This is not merely a sequencing requirement (file one, then the other); it is a jurisdictional condition that the petition must actually place the final order of removal before the court for review.

2) Petition-centric jurisdiction: what must be “raised upon” the petition

Having announced the tethering rule, the court then asked whether Hayles’s pro se petition could be read as also challenging the final removal order. Here, the opinion is notable for formalizing a petition-focused standard derived from 8 U.S.C. § 1252(a)(2)(D)’s phrase “raised upon a petition for review.” Using Perrin v. United States and dictionary definitions, the court held that a claim must be brought up in the petition “clearly enough” to make the petition the “basis” for the claim.

Applying that standard, the court found:

• The petition repeatedly referenced November 8, 2023 (the BIA’s CAT decision) and never referenced July 13, 2023 (the final removal order).
• The petition’s substantive arguments addressed CAT elements—state action/acquiescence and internal relocation—not removability based on aggravated felony convictions under 8 U.S.C. § 1227(a)(2)(A)(iii).
• “Due process” language in the petition related to the CAT proceeding or the late filing explanation, not to procedural defects in the removal proceeding.

3) No amendment-by-brief; limited (and denied) amendment by leave

The court rejected the idea that merits briefs can cure jurisdictional defects in the petition, analogizing to civil practice under Poer v. Jefferson Cnty. Comm'n. Even assuming the court had power to permit amendment at that stage, it denied amendment as futile because the proposed challenge to the removal order was frivolous. The court relied on:

• Sierra Club v. U.S. Army Corps of Eng'rs to presume regulatory compliance absent evidence.
• Record admissions where Hayles affirmed he received a list of pro bono services, and a notice providing a URL to access the list.
• A lack of showing of prejudice—i.e., that access to counsel could have changed removability given the serious convictions and statutory inadmissibility/adjustment barriers the court cited (e.g., 8 U.S.C. §§ 1182(a)(2)(B), 1255(a)).

4) The dissent’s “execution-of-order” theory

Judge Abudu’s partial dissent accepted that CAT determinations are not themselves final removal orders, but argued that this supports—rather than defeats—jurisdiction. Because CAT relief governs whether the government may execute an existing removal order to a particular country, a petition seeking review of a CAT denial is “necessarily” a challenge to the execution of the final order and thus arises from that order. She relied on Nasrallah v. Barr and Johnson v. Guzman Chavez to emphasize the execution-focused nature of CAT relief and endorsed the Third Circuit’s reasoning in Laureano v. Att'y Gen. She also read Riley v. Bondi as inconsistent with the majority’s requirement that petitioners separately contest removability.

C. Impact

1) Immediate doctrinal effect in the Eleventh Circuit

The decision establishes a clear jurisdictional gatekeeping rule: Eleventh Circuit review of CAT denials is unavailable unless the petition for review also challenges a final removal order. This will shift litigant behavior and appellate screening:

• Petition drafting becomes jurisdiction-critical. Petitioners (including pro se detainees) must expressly identify and challenge the final removal order—not merely the CAT denial.
• Briefing cannot salvage jurisdiction. Lawyers who enter after filing cannot rely on merits briefing to “connect” the case to the final order.
• More dismissals on jurisdictional grounds. CAT-only petitions will be dismissed even if the CAT issues are substantial.

2) Widening the circuit split and Supreme Court attention

By aligning with Navarrete v. Bondi against Laureano v. Att'y Gen., the Eleventh Circuit deepens a live split on an important, recurring question affecting withholding-only/CAT-only review. That split increases the likelihood of Supreme Court intervention, particularly given the close relationship between this issue and the Court’s recent immigration jurisdiction decisions (e.g., Nasrallah, Riley).

3) Systemic and practical consequences

• Risk to pro se litigants. The rule is unforgiving to detainees who may naturally describe their appeal as “the BIA decision” (the document they received) rather than the separate DHS administrative removal order.
• Incentives to assert “protective” challenges. Even where removability is undisputed, petitioners may add nominal removal-order challenges to preserve jurisdiction over CAT issues. The dissent highlighted the inefficiency of “manufactur[ing]” irrelevant challenges, although the majority framed this as compelled by statutory text.
• Increased front-end litigation over the petition itself. Jurisdiction may hinge on dates, labels, and explicit references in the petition rather than on the substantive CAT controversy.

4. Complex Concepts Simplified

• Final order of removal: The government’s legally final decision that a noncitizen must be removed. Under 8 U.S.C. § 1252(a)(1), courts of appeals review removal cases through petitions for review of this final order.
• CAT relief (deferral vs withholding): The Convention Against Torture can prevent removal to a specific country if torture is “more likely than not.” For people barred from withholding (e.g., aggravated felonies), the available protection may be deferral rather than withholding, which is generally more limited and easier for the government to revisit.
• Withholding-only proceedings: A separate proceeding where the immigration judge does not decide whether the person is removable, but only whether the person may be removed to a particular country because of protection claims like CAT.
• The “zipper clause” (8 U.S.C. § 1252(b)(9)): A consolidation rule meant to “zip” together review of questions arising from the removal process into one court-of-appeals review tied to the final removal order.
• Jurisdiction vs merits: Jurisdiction is the court’s power to hear the case at all. Even a strong CAT claim cannot be reached if the court concludes Congress has not authorized review in the posture presented.

5. Conclusion

Winston Lloyd Hayles v. U.S. Attorney General establishes a consequential jurisdictional rule in the Eleventh Circuit: a petition for review that challenges only the BIA’s denial of CAT relief, without also challenging a final order of removal, falls outside the court’s jurisdiction and must be dismissed. The decision is grounded in a strict, petition-centric reading of 8 U.S.C. § 1252, the “zipper clause,” and CAT channeling provisions (including FARRA and the REAL ID Act). It rejects reliance on prior silent practice and refuses to allow merits briefing to cure defects in the jurisdiction-conferring petition.

Judge Abudu’s partial dissent frames CAT claims as inherently bound up with the execution of a final removal order and would find jurisdiction once such an order exists, even absent a removability challenge. That disagreement—now aligned with a Third vs. Ninth/Eleventh divergence—positions the issue for further appellate development and likely Supreme Court review.