Third Circuit Confirms Appellate Jurisdiction to Review Withholding-Only and CAT Denials After Riley (and Treats § 1252(b)(1) as Waivable)

I. Introduction

Patria Laureano arises from “withholding-only” proceedings following reinstatement of a prior removal order. Patria Laureano, a lawful permanent resident since 1994 and a citizen of the Dominican Republic, was removed in 2008 after a 2007 federal conviction for conspiracy to possess with intent to distribute one kilogram or more of heroin (21 U.S.C. § 846). She unlawfully reentered in 2009, remained until 2023, and then faced reinstatement of her prior removal order. She sought (i) statutory withholding of removal and (ii) protection under the Convention Against Torture (“CAT”), citing fear of abuse by a former partner in the Dominican Republic and asserting that police would not protect her.

The case presented three interlocking issues:

• Jurisdiction and timing after Riley v. Bondi, 606 U.S. 259 (2025): whether the Third Circuit could review a petition naming only the BIA’s withholding-only decision, and whether the 30-day filing deadline could be waived.
• CAT merits: whether Laureano showed it was more likely than not she would be tortured with government acquiescence if removed to the Dominican Republic.
• Statutory withholding bar: whether her drug-trafficking conviction constituted a “particularly serious crime” (“PSC”) under Matter of Y-L-, A-G- & R-S-R, 23 I. & N. Dec. 270 (A.G. 2002), and—if so—whether the Attorney General’s presumption in Y-L- is lawful.

II. Summary of the Opinion

• Timeliness: The court treated 8 U.S.C. § 1252(b)(1)’s 30-day deadline as non-jurisdictional and enforceable only if the Government presses it, relying on Riley v. Bondi. Because the Government did not press timeliness, the court proceeded.
• Jurisdiction: The court held it had jurisdiction to review Laureano’s withholding-only and CAT denials, looking through the withholding-only order to the underlying reinstatement order as the “final order of removal” and reading Riley as contemplating appellate jurisdiction over withholding-only determinations.
• CAT claim denied on the merits: The court held substantial evidence supported the BIA’s conclusion that Laureano failed to show she was more likely than not to be tortured in the Dominican Republic.
• Statutory withholding: The petition was denied without a majority holding on the merits: one judge would deny based on Matter of Y-L-, A-G- & R-S-R; one would grant and remand because Y-L- is ultra vires; one would dismiss for lack of jurisdiction.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Appellate jurisdiction, “final orders,” and withholding-only review

• Riley v. Bondi, 606 U.S. 259 (2025)
  Riley supplied the framework: (i) a “final order of removal” is the order “concluding that the alien is deportable or ordering deportation” (quoting 8 U.S.C. § 1101(a)(47)(A)); (ii) the 30-day petition deadline in § 1252(b)(1) is non-jurisdictional and can be waived; and (iii) the Supreme Court acknowledged a practical mechanism—petitioning after the final order and holding the petition until withholding-only issues ripen. The Third Circuit treated that acknowledgment as confirming that courts of appeals can review withholding-only rulings even if the petitioner does not dispute removability.
• Johnson v. Guzman Chavez, 594 U.S. 523 (2021) and I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987)
  These cases were used to underscore that withholding (and similarly CAT protection) does not negate removability; it only bars removal to a particular country, leaving open removal to a third country. This distinction mattered because it supported the proposition that orders granting or denying withholding/CAT are not themselves “final orders of removal.”
• Nasrallah v. Barr, 590 U.S. 573 (2020)
  Nasrallah was cited for the nature of CAT relief: it blocks removal to a designated country, but does not invalidate the removal order itself. The court used this to explain why the BIA’s CAT decision is not itself a final order of removal and why jurisdiction must attach through § 1252’s review mechanism for removal orders.
• United States v. Charleswell, 456 F.3d 347 (3d Cir. 2006); Dinnall v. Gonzales, 421 F.3d 247 (3d Cir. 2005); Avila-Macias v. Ashcroft, 328 F.3d 108 (3d Cir. 2003)
  These Third Circuit cases were invoked to support treating reinstated removal orders as reviewable “final orders of removal” under § 1252(a)(1). The majority relied on this line to anchor jurisdiction to the 2023 reinstatement order.
• Navarrete v. Bondi, 170 F.4th 1214 (9th Cir. 2026)
  The opinion flagged a developing circuit conflict: the Third Circuit’s approach to jurisdiction diverges from Navarrete, which rejected standalone jurisdiction to review CAT denials absent a petition tied to a final order of removal. The Third Circuit expressly “depart[ed]” from that view.

2. CAT standards and evidentiary review

• Saban-Cach v. Att'y Gen., 58 F.4th 716 (3d Cir. 2023)
  Used for the two-part CAT inquiry: likelihood of torture and government “acquiescence.”
• Radiowala v. Att'y Gen., 930 F.3d 577 (3d Cir. 2019)
  Cited for the relevance of the passage of time in assessing whether feared torture is speculative.
• Myrie v. Att'y Gen., 855 F.3d 509 (3d Cir. 2017) (quoting Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005))
  Referenced for CAT’s definition and analytical structure (the opinion recited the elements of “torture” under CAT regulations).

3. Particularly serious crime doctrine, statutory interpretation, and administrative discretion

• Matter of Y-L-, A-G- & R-S-R, 23 I. & N. Dec. 270 (A.G. 2002)
  Central to the withholding dispute. Y-L- establishes a presumption that drug-trafficking aggravated felonies are “particularly serious crimes,” rebuttable only by “extraordinary and compelling” circumstances and six criteria (including “a very small quantity” of controlled substance). The IJ and BIA treated Laureano’s offense as presumptively a PSC and found she could not rebut it given the kilogram-plus quantity.
• Bastardo-Vale v. Attorney General, 934 F.3d 255 (3d Cir. 2019) (en banc) and Amos v. Att'y Gen., 157 F.4th 313 (3d Cir. 2025)
  These cases framed the Third Circuit’s understanding that PSC determinations outside the statute’s per se category generally involve case-by-case analysis considering the nature of the offense and, where appropriate, underlying facts.
• Denis v. Att'y Gen., 633 F.3d 201 (3d Cir. 2011) and Nkomo v. Att'y Gen., 930 F.3d 129 (3d Cir. 2019)
  Cited for the proposition that once a crime is deemed a PSC, no separate “danger to the community” finding is required—because § 1231(b)(3)(B)(ii) treats PSC conviction as establishing danger.
• Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982); In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007); In re L-S-, 22 I. & N. Dec. 645 (BIA 1999); In re S-S-, 22 I. & N. Dec. 458 (BIA 1999)
  These BIA decisions were used (particularly in the lead opinion’s Part IV discussion) to trace PSC doctrine as historically individualized, and to contextualize Congress’s later creation of a limited per se category in the withholding statute.
• Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024) and Miller Plastic Prods. Inc v. Nat'l Lab. Rels. Bd., 141 F.4th 492 (3d Cir. 2025)
  Invoked in the debate over deference and the role of agency interpretations post-Loper Bright. The opinion emphasized that overruling Chevron does not automatically unsettle earlier outcomes, especially where the agency’s view aligns with statutory text, and that courts may still consider agency expertise as “informed judgment.”
• Malack v. BDO Siedman, 617 F.3d 743 (3d Cir. 2010) and Gall v. United States, 552 U.S. 38 (2007)
  Used (in the Part IV critique of Y-L-) to explain what a “presumption” does: it operates based on generalized probability and can constrain individualized adjudication.

B. Legal Reasoning

1. Jurisdiction after Riley: tying withholding-only review to a final removal order, and waiver of § 1252(b)(1)

The court’s jurisdictional analysis proceeds in three steps:

• Withholding-only/CAT denials are not “final orders of removal.” Because such relief does not determine removability and only bars removal to a particular country, the BIA decision denying withholding and CAT is not itself reviewable as a “final order of removal.”
• Jurisdiction is anchored in the reinstatement order as a final order of removal. The court looked to the 2023 reinstatement order (which, in its view, “operates to remove” and “meets the definition of a final order of removal” under Riley v. Bondi) and treated § 1252(a)(1) as supplying appellate jurisdiction.
• Timeliness is non-jurisdictional and waivable. Although the petition was not within 30 days of the 2008 removal order or the 2023 reinstatement, the Government did not press the time bar. Under Riley, the court treated the deadline as non-jurisdictional and therefore waivable.

The court also rejected the notion that the “zipper clause,” 8 U.S.C. § 1252(b)(9), blocked review, reasoning that review was occurring “in” the review of a final order under § 1252(a)(1). For CAT specifically, the court added that 8 U.S.C. § 1252(a)(4) confirms the petition-for-review mechanism as the “sole and exclusive means” of judicial review of CAT claims.

2. CAT merits: time, likelihood, and speculative risk

On the merits, the court applied the regulatory standard requiring Laureano to show it is “more likely than not” she will be tortured (8 C.F.R. § 1208.16(c)(2)) and that torture would be inflicted by, or with the acquiescence of, government officials (8 C.F.R. § 208.18(a)(1)). Without resolving in depth whether the past abuse met the legal definition of “torture,” the court emphasized:

• the incidents were approximately fifteen years old;
• the lack of recent contact and the passage of time made future torture too speculative (citing Radiowala v. Att'y Gen.);
• the record did not compel a finding of likely torture or government acquiescence.

Accordingly, the court denied the CAT petition.

3. Statutory withholding and Y-L-: no precedential merits holding, but a significant split

Even so, the opinion and separate writings set out two competing interpretive frameworks:

• Judge Shwartz’s Part IV view (would remand; Y-L- ultra vires): Section 1231(b)(3)(B) creates one per se PSC category (aggravated felonies with aggregate sentence ≥ 5 years) and otherwise contemplates individualized, case-by-case PSC determinations. Because Y-L- imposes a mandatory presumption (rebuttable only by six specified criteria), it effectively creates a categorical bar inconsistent with Congress’s structure—especially contrasted with the asylum statute, which explicitly allows categorical designation “by regulation” (8 U.S.C. § 1158(b)(2)(B)(ii)).
• Judge Fisher’s view (would deny; Y-L- valid exercise): The statute expressly delegates authority to the Attorney General to determine PSCs “notwithstanding the length of sentence imposed.” Nothing in § 1231(b)(3)(B) forbids presumptions or categorical guidance; the six-factor rebuttal framework still requires applying facts to criteria and permits rebuttal in rare cases. In this view, Y-L- is “reasoned decisionmaking” within delegated authority (framed with reference to Loper Bright Enters. v. Raimondo).
• Judge Matey’s view (would dismiss): The court lacked jurisdiction over a petition targeting only the withholding-only order and not a final order of removal; the lead opinion, in his view, manufactured jurisdiction and deepened a circuit split (citing Navarrete v. Bondi).

C. Impact

1. Immediate doctrinal impact (binding holdings)

• Jurisdictional rule in the Third Circuit (post-Riley): This decision stands as precedential authority that the Third Circuit can review withholding-only and CAT denials by anchoring jurisdiction to an underlying (including reinstated) final order of removal, even where the petition itself identifies the BIA’s withholding-only disposition.
• Timeliness litigation posture matters: By treating § 1252(b)(1) as non-jurisdictional and proceeding where the Government does not press the deadline, the decision incentivizes close attention to the Government’s waiver/forfeiture choices—potentially producing uneven access to merits review across cases depending on enforcement posture.
• CAT evidentiary signaling: The court reinforced that stale threats and long gaps in harm/contact can undermine the “more likely than not” showing, consistent with Radiowala v. Att'y Gen.

2. Systemic impact and likely future litigation

• Deepening a circuit split: The Third Circuit explicitly departed from the Ninth Circuit’s approach noted in Navarrete v. Bondi. That divergence raises the prospect of en banc review or Supreme Court intervention to clarify whether § 1252(a)(1) allows review of withholding-only/CAT orders absent a petition expressly directed to a final order of removal.
• Unresolved—yet spotlighted—validity of Y-L-: Because the panel produced no majority on withholding, the decision does not settle whether Matter of Y-L-, A-G- & R-S-R is lawful in the Third Circuit. But the competing opinions map out the arguments future litigants will reprise: statutory structure (withholding vs asylum), individualized adjudication, and the legitimacy of strong presumptions post-Loper Bright.
• Practical procedural consequences: The “equally divided vote” posture leaves the BIA’s denial intact but without a precedential merits endorsement. That posture may encourage litigants to frame future cases to secure a clear majority on Y-L- rather than accept an outcome that preserves agency action without a governing circuit rule.

IV. Complex Concepts Simplified

• “Withholding-only” proceedings: A limited process available to certain noncitizens (including those with reinstated removal orders) where the only question is whether removal to a particular country must be withheld (statutory withholding) or deferred (CAT). It does not re-litigate whether the person is removable.
• “Final order of removal”: Under the INA (as emphasized in Riley v. Bondi), it is the order that determines deportability or orders deportation—not the later decision about whether removal can occur to a specific country.
• CAT “torture” and “acquiescence”: CAT protection requires showing (i) likely severe harm meeting the regulatory definition of torture and (ii) that public officials will inflict it or at least consent/acquiesce (i.e., turn a blind eye or be willfully indifferent).
• “Particularly serious crime” (PSC): A statutory bar to withholding: if the conviction qualifies as a PSC, the noncitizen is deemed a “danger to the community” and is ineligible for statutory withholding.
• Presumption vs per se rule: A presumption starts with an assumed conclusion unless rebutted; a per se rule is an automatic classification. The dispute over Matter of Y-L-, A-G- & R-S-R is whether its presumption is so strict that it effectively functions as an unauthorized per se rule for drug trafficking crimes.
• “Ultra vires”: Agency action beyond the authority Congress delegated. Judge Shwartz’s Part IV analysis framed Y-L- as beyond what § 1231(b)(3)(B) permits.

V. Conclusion

Patria Laureano delivers a clear Third Circuit holding on two fronts: (1) the court has jurisdiction to review withholding-only and CAT denials by anchoring review to an underlying final removal order and applying Riley v. Bondi’s understanding that § 1252(b)(1)’s deadline is non-jurisdictional and waivable; and (2) Laureano’s CAT claim fails because the record did not compel a finding that torture was more likely than not given the long passage of time and speculative risk.

On statutory withholding, however, the decision is significant less for what it definitively holds than for what it exposes: a sharp, unresolved divide over the legality of Matter of Y-L-, A-G- & R-S-R’s drug-trafficking PSC presumption, and a jurisdictional disagreement that places the Third Circuit on a collision course with contrary approaches (notably flagged by reference to Navarrete v. Bondi). The result is a precedential jurisdiction-and-CAT decision with an unsettled—and litigation-ready—PSC question.