Winston Lloyd Hayles v. U.S. Attorney General

FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________

No. 24-10516

____________________

WINSTON LLOYD HAYLES,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A079-401-949

____________________

Before WILLIAM PRYOR, Chief Judge, and BRASHER and ABUDU, Cir- cuit Judges.

B RASHER, Circuit Judge:

The question in this appeal is whether a court of appeals has jurisdiction over an immigrant's petition for review of the Board of

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2 Opinion of the Court 24-10516 Immigration Appeals when the petition challenges the denial of re- lief under the Convention Against Torture but not an underlying removal order. The Ninth Circuit recently answered this question in the negative. See Navarrete v. Bondi, 170 F.4th 1214, 1221 (9th Cir. 2026). We agree and adopt the same rule.

Jamaican citizen Winston Hayles committed aggravated fel- onies in the United States. Before he was deported, Hayles told an asylum officer that he feared he would experience torture if de- ported, which could qualify him for deferral of removal under the CAT. An immigration judge denied CAT relief, and the Board of Immigration Appeals affirmed. In separate administrative proceed- ings, the Department of Homeland Security issued a final adminis- trative removal order against Hayles. Hayles filed a pro se petition for judicial review of the Board's CAT decision, but his petition pointedly did not challenge the administrative removal order. Be- cause we lack jurisdiction to review the denial of CAT relief unless we are simultaneously reviewing a final removal order, we hold that we lack jurisdiction over Hayles's petition and dismiss it.

I.

Winston Hayles unlawfully entered the United States, alleg- edly due to fear of political persecution in Jamaica. Once in the United States, Hayles was convicted of voluntary manslaughter and battery (among other crimes) after killing a man in Georgia. He was sentenced to 20 years in prison for these convictions.

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24-10516 Opinion of the Court 3 Upon Hayles's release, DHS detained him for administrative removal proceedings because he had committed aggravated felo- nies. See 8 U.S.C. § 1227(a)(2)(A)(iii). During these proceedings, Hayles expressed a fear of returning to Jamaica, so an asylum of- ficer referred him to separate withholding-only proceedings in which an immigration judge would determine whether he merited withholding or deferral of removal under the CAT. The CAT permits individuals to avoid or defer removal to a country if they can prove that it is more likely than not that they will be tortured if sent there. See 8 C.F.R. § 1208.16(c)(2). An appli- cant must also prove that the torture would be by or with the ac- quiescence of a public official (or other person acting in an official capacity). 8 C.F.R. § 1208.18(a)(1). To evaluate CAT eligibility, an immigration judge considers a variety of evidence, including an ap- plicant's ability to relocate to a safe area. 8 C.F.R. § 1208.16(c)(3)(ii). Because Hayles had committed an aggravated felony, he was eligi- ble only for deferral—not withholding—of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2)(i).

Based on the above legal framework, an immigration judge denied Hayles's application for CAT relief. Hayles appealed to the Board of Immigration Appeals, which affirmed on November 8, 2023. Meanwhile, DHS had issued a final administrative removal order on July 13, 2023.

Several months later, Hayles filed a pro se petition for judi- cial review in this Court to challenge the denial of CAT relief. In

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4 Opinion of the Court 24-10516 his petition, Hayles states that he is appealing "the order of depor- tation issued by the Board of Immigration Appeals on [] 11/8/2023." Dkt. 1-2 at 1. He then argues that we should reverse the immigration judge and Board of Immigration Appeals because they failed to recognize certain facts that made his CAT claim mer- itorious. For example, he argues they ignored his allegations that the Jamaican police don't wear uniforms and act as part of political hit squads. He adds that they also ignored the link between Jamai- can gangs and political parties. And finally, Hayles points out, they overlooked that Hayles could not avoid torture by relocating be- cause he had previously tried relocating and it was unsuccessful. Hayles's petition also articulates that the Board committed "a clear denial of due process," and reiterates that the case "was decided on [] 11-8-2023." Id. at 2-3.

Under 8 U.S.C. § 1252(b)(1), petitions for judicial review must be filed no later than 30 days after the date of the final order of removal. In his petition, Hayles acknowledged that his petition was untimely under this 30-day deadline. But he argued that he could not file sooner because of DHS's failure to send the Board's decision to the correct detention center and because of his pro se status.

Hayles also filed a motion for stay of removal. The stay was denied, and he was deported.

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24-10516 Opinion of the Court 5 Later, we appointed lawyers at the Immigration Clinic at the University of Miami Law School to represent Hayles.¹They filed briefs raising two claims. The first was a procedural due process claim, arguing that DHS violated its own regulations by not ensur- ing that Hayles received a list of pro bono counsel as part of the removal proceedings. See 8 C.F.R. § 238.1(b)(2)(iv). The second claim argued that the immigration judge and Board of Immigration Appeals erred by concluding that it was unlikely Hayles would be tortured if returned to Jamaica.

We ordered supplemental briefing on whether we have ju- risdiction to consider Hayles's petition for judicial review.

II.

Even if we must raise the issue sua sponte, we must deter- mine "whether we have jurisdiction to entertain [a] petition for re- view." Gelin v. U.S. Att'y Gen., 837 F.3d 1236, 1240 (11th Cir. 2016) (citation modified). We review questions of our jurisdiction de novo. United States v. Alhindi, 124 F.4th 869, 873 (11th Cir. 2024).

III.

Before addressing the merits of Hayles's arguments, we must start with our jurisdiction. After we sua sponte raised the issue of our jurisdiction, the government argued that we should dismiss

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6 Opinion of the Court 24-10516 Hayles's petition. The government's position is that a court of ap- peals may review a petition for judicial review only if the petition challenges a final removal order. According to the government, alt- hough a court may consider the denial of CAT relief in reviewing a final removal order, a court may not review the denial of CAT relief alone. Because Hayles's petition for review did not appeal his final order of removal but was instead directed exclusively at the order denying CAT relief, the government reasons that we lack ju- risdiction to review it.

In response, Hayles argues that we have jurisdiction for three reasons. First, Hayles says that we have jurisdiction to resolve petitions for judicial review even if they merely challenge the de- nial of CAT relief unrelated to a final removal order. Second, he argues his pro se petition did, in fact, challenge his final removal order. Third, he implicitly suggests that he should be allowed to amend his petition to conform to his briefs, which make an argu- ment about his final removal order.

We will address each issue in turn. Ultimately, we agree with the government that we should dismiss Hayles's petition for lack of jurisdiction.

A.

We will start with the relevant immigration statutes that govern our jurisdiction over a petition for review. Our jurisdiction over immigration proceedings is defined by "three interlocking statutes" that funnel our review of CAT orders into our review of final orders of removal. See Nasrallah v. Barr, 590 U.S. 573, 579

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24-10516 Opinion of the Court 7 (2020). The government argues that, under these three statutes, we lack jurisdiction over any petition for review that does not chal- lenge a final order of removal, even if the petition challenges the separate denial of CAT relief. We agree.

The first of these three statutes is the Illegal Immigration Re- form and Immigrant Responsibility Act of 1996, which permits ju- dicial review of a final removal order through a petition for review. See 8 U.S.C. § 1252(a)(1). A final removal order is a deportation or- der that has become final. 8 U.S.C. § 1101(a)(47). A deportation or- der follows a determination that an alien is deportable. 8 U.S.C. § 1229a(a)(1). One reason an alien may be deportable is that the al- ien has been convicted of an aggravated felony, as Hayles has been.

8 U.S.C. § 1227(a)(2)(A)(iii).

"An order denying relief under the CAT is not a final order of removal . . . ." Riley v. Bondi, 606 U.S. 259, 269 (2025); see also Nasrallah, 590 U.S. at 579-80. But the Act also states that "all ques- tions of law and fact . . . arising from any [removal] action . . . shall be available only in judicial review of a final order under [section 1252(a)(1)]." IIRIRA § 306(a)(2), 110 Stat. 3009-610; 8 U.S.C. § 1252(b)(9). This provision is termed the "zipper clause" because it consolidates judicial review of immigration proceedings into one action in the court of appeals. Guerrero-Lasprilla v. Barr, 589 U.S. 221, 230 (2020). So, even though a CAT order is not a final order of removal, the Supreme Court has held that we may review the de- nial of CAT relief because "questions of law and fact . . . arising

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8 Opinion of the Court 24-10516 from any action" include CAT determinations. See Nasrallah, 590 U.S. at 579-80.

The second statute is the Foreign Affairs Reform and Re- structuring Act of 1998, which made section 1252(a)(1) the only path for obtaining judicial review of CAT orders. Foreign Affairs Reform and Restructuring Act § 2242(d), 112 Stat. 2681-822, note following 8 U.S.C. § 1231 ("[N]othing in this section shall be con- strued as providing any court jurisdiction to consider or review claims raised under [the CAT] or this section . . . except as part of the review of a final order of removal pursuant to [8 U.S.C. § 1252].").

The third is the REAL ID Act of 2005, which reaffirms that

"a petition for review . . . shall be the sole and exclusive means for judicial review of any cause or claim under [the CAT]." REAL ID Act § 106(a)(1)(B), 119 Stat. 310; 8 U.S.C. § 1252(a)(4). The Act also added a sentence to the end of the "zipper clause" confirming ex- clusive jurisdiction. 119 Stat. 311; 8 U.S.C. § 1252(b)(9) ("Except as otherwise provided in this section, no court shall have jurisdic- tion, . . . to review such an order or such questions of law or fact."). The Ninth Circuit recently held that, based on this legal landscape, a court of appeals has no jurisdiction to review CAT claims "independent of challenges to final orders of removal." Na- varrete, 170 F.4th at 1221. The Third Circuit has since held the op- posite, concluding that the jurisdictional statute 8 U.S.C. § 1252(a)(4) grants us jurisdiction over a withholding-only order. Laureano v. Att'y Gen., No. 24-2433, slip op. at *3-5 (3d Cir. May 29,

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24-10516 Opinion of the Court 9 2026). We agree with the Ninth Circuit. The three interlocking stat- utes defining our jurisdiction over a petition for review instruct that: (1) we can review CAT orders only insofar as we are address- ing "questions of law and fact" arising from "any action or pro- ceeding brough to remove an alien," 8 U.S.C. § 1252(b)(9); (2) we can review CAT orders only through a petition for judicial review,

8 U.S.C. § 1252(a)(4); and (3) we can review final orders of removal only through a petition for judicial review, 8 U.S.C. § 1252(a)(1). The upshot is that we cannot review the denial of CAT relief unless there is a petition for review of a final removal order. Hayles's counterarguments are meritless. One counterargu- ment is that Congress must make a clear statement to deprive liti- gants of judicial review, and section 1252 lacks such a clear state- ment. We disagree. Even assuming that such a clear statement rule applies in the immigration context, the statutes are clear that our review of CAT claims may come only through a review of final order. These statements include 8 U.S.C. § 1252(b)(9), specifying that questions of law and fact (such as CAT orders) arising from removal actions "shall be available only in judicial review of a final order," and FARRA section 2242(d), stating that "nothing 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." 112 Stat. 2681-822, note following 8 U.S.C. § 1231.

We also discount Hayles's argument (which the Third Cir- cuit also adopted in Laureano, see No. 24-2433, slip op. at *3-4) that

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10 Opinion of the Court 24-10516 courts often exercise jurisdiction over CAT claims even when a pe- tition for review does not challenge a final removal order. Alt- hough Hayles appears to be correct that we and the Supreme Court have exercised jurisdiction over such petitions, see Reyes-Sanchez v. U.S. Att'y Gen., 369 F.3d 1239, 1240 (11th Cir. 2004); Riley, 606 U.S. at 264-65, a court's failure to sua sponte identify a jurisdictional problem is not precedent. "Questions which merely lurk in the rec- ord, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." United States v. Jackson, 55 F.4th 846, 853 (11th Cir. 2022) (citation modified). Neither we in Reyes-Sanchez nor the Su- preme Court in Riley considered our statutory jurisdiction, and we cannot infer anything about jurisdiction based on that silence. In short, "we have not been granted any jurisdiction to hear CAT claims independent of challenges to final orders of removal."

Navarrete, 170 F.4th at 1221. We thus hold that judicial review of the denial of relief under the CAT is available only if a petition for review challenges a final removal order.

B.

We now turn to Hayles's second contention. He says that his pro se petition for review should be read to challenge his July final order of removal in addition to the Board's November denial of CAT relief. We disagree.

For starters, our statutory jurisdiction is based on the words in a petition for review. The statute preserves our power of "review of constitutional claims or questions of law raised upon a petition for

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24-10516 Opinion of the Court 11 review filed with an appropriate court of appeals." 8 U.S.C. § 1252(a)(2)(D) (emphasis added). The statute does not define

"raised upon," so we give this term its "ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42 (1979). The word "raise" is defined as "to bring up for consideration" or to

"offer as an objection, a problem, or a significant point." W EBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1877 (2002). The word

"upon" is defined as "on," id. at 2517, and "on" is defined as a

"source or support or basis on which something (as an action, opin- ion) turns or rests." Id. at 1574. Put together, "raised upon a peti- tion for review" means to bring up in the petition clearly enough that the reader can understand that the petition is the basis for the claim. The statute later provides that a "petition for review" is "the sole and exclusive means for judicial review" of an order of re- moval. 8 U.S.C. § 1252(a)(5); cf. Monsalvo v. Bondi, 604 U.S. 712, 721-23 (2025) (reading the petition to discern whether jurisdiction over the petition existed).

Turning to Hayles's pro se petition, we cannot say it chal- lenges his July final order of removal at all. We are mindful that we must liberally construe Hayles's pro se petition. See Ali v. U.S. Att'y Gen., 931 F.3d 1327, 1331 n.2 (11th Cir. 2019). But even applying a liberal construction, there is no plausible way to read his petition as challenging his final removal order. His petition twice references the date November 8, 2023, which is the date that the Board of Im- migration Appeals affirmed denial of CAT relief. He says that he is seeking "review of the order of deportation issued by the Board of Immigration Appeals on the 11/8/2023" and that "this case was

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12 Opinion of the Court 24-10516 decided on the 11-8-2023 by the Board of Immigration Appeals."

Dkt. 1-2 at 1-3. The petition never mentions the date of the final administrative removal order: July 13, 2023. And although the pe- tition says the words "order of deportation," it is in the context of the clause: "the order of deportation issued by the Board of Immi- gration Appeals on [] 11/8/2023." Id. at 1.

Nor is there any way to read the substantive arguments in Hayles's petition as challenging his final removal order. For exam- ple, his petition asserts that the Board of Immigration Appeals and immigration judge failed to acknowledge his allegation that the Ja- maican police are ununiformed members of a political hit squad. But this argument relates to his burden under the CAT of establish- ing that a public official will likely acquiesce or participate in his torture. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). His petition also asserts that the Board and immigration judge ignored his evi- dence that Jamaican gangs are linked to political parties. This argu- ment, too, relates to his CAT burden of linking torture to govern- ment involvement. Lastly, his petition asserts that the Board and immigration judge failed to acknowledge that Hayles's attempts to relocate within Jamaica did not help him avoid political persecu- tion. This argument relates to his CAT burden of establishing that relocation would not help him to avoid torture in Jamaica. See id. § 1208.16(c)(3)(ii). None of these arguments address why he was ordered removed in July: his aggravated felony convictions. See 8 U.S.C. § 1227(a)(2)(A)(iii).

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24-10516 Opinion of the Court 13 Finally, there is no plausible way to read Hayles's petition as raising the procedural due process arguments about his removal order that his briefing later raises. In his appellate briefing, Hayles asserts that DHS denied him procedural due process by failing to provide him with a list of pro bono attorneys. Hayles says that his petition previewed this claim by mentioning due process and the fact that he was pro se. But his petition's mention of due process follows a discussion of errors in his withholding-only proceedings, not his removal proceedings. And even though Hayles's petition mentions that he "is pro-se," it does so as part of an explanation of why he "was prevented from timely filing this petition." Dkt. 1-2 at

3.

Hayles's petition fails to articulate any due process or other legal challenge to his removal order. Hayles's petition is very spe- cific: he is challenging the November order of the Board that de- nied his request for deferral of removal under the CAT. Although we must construe this pro se petition liberally, see Ali, 931 F.3d at 1331 n.2, we cannot rewrite it, see In re Ellingsworth Residential Cmty. Ass'n, 125 F.4th 1365, 1377 (11th Cir. 2025) (explaining that we can- not "rewrite an otherwise deficient pleading in order to sustain an action") (citation modified). We thus cannot say that Hayles's peti- tion challenges a final order of removal.

C.

We now turn to Hayles's final argument. His briefing raises a procedural due process claim based on his removal order, and he

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14 Opinion of the Court 24-10516 says that his briefing can ameliorate his petition's failure to chal- lenge the final removal order. He suggests that his briefing has al- ready amended his petition or, implicitly, that we should give him formal leave to amend. We disagree.

For starters, Hayles cannot use briefing to amend his peti- tion. The judicial review statute defines our jurisdiction based on the petition. See 8 U.S.C. § 1252(a)(2)(D) (preserving our review over claims "raised upon a petition for review"). There is no basis for defining our jurisdiction based on anything else. We prohibit parties from adding claims through briefing in other contexts. At summary judgment, for example, we don't allow amendments to the complaint through briefing. Poer v. Jefferson Cnty. Comm'n, 100 F.4th 1325, 1337-38 (11th Cir. 2024). Hayles cannot amend his pe- tition simply by filing a brief.

As for Hayles's implicit request to amend his petition, we cannot see how an amendment would be justified here. We'll as- sume without deciding that we could permit Hayles to amend his petition at this point of the proceedings. Cf. F ED. R. APP. P. 4(a)(4)(B)(ii)-(iii) (referencing an "amended notice" of appeal); Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988) (referencing a petitioner's failure to "seek leave to amend the notice of appeal within the time limits set by Rule 4"). Even with that assumption, we would still deny the proposed amendment. Because his chal- lenge to the final order of removal is frivolous, it could not invoke our jurisdiction. Rubinstein v. Yehuda, 38 F.4th 982, 993 (11th Cir. 2022); .see Navarrete, 170 F.4th at 1225 (denying request to amend

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24-10516 Opinion of the Court 15 petition where the removal order claim was "baseless and frivo- lous" and could not "invoke [the court's] jurisdiction"). Hayles says that he would like to challenge his removal or- der on the grounds that DHS violated his procedural due process rights by failing to ensure that he received a list of pro bono law- yers. Regulations require DHS to provide aliens a "list of available free legal services programs." 8 C.F.R. § 238.1(b)(2)(iv). Absent "ev- idence to the contrary, we presume that an agency has acted in ac- cordance with its regulations." Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1223 (11th Cir. 2002) (citation modified). No evidence in the record supports Hayles's contention about the pro bono list. Instead, to the extent the record reflects anything on this point, it suggests that the agency followed the regulation. Hayles twice affirmed that he had been provided with a list. See Adminis- trative Record at 397 (checking a box on his application for with- holding of removal to affirm that he had received such a list), 437 (affirming to the asylum officer that he had received a list). And the record reflects that a notice was mailed to Hayles with a URL where he could find "a list of free legal service providers who may be able to assist you." Id. at 469.²

An even more fundamental problem is that Hayles has not

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16 Opinion of the Court 24-10516 identified how the list of attorneys could have helped him defeat the removal order. Hayles was deported because he committed multiple serious crimes, including manslaughter. Hayles is not eli- gible for permanent residence because he was "convicted of 2 or more offenses . . . for which the aggregate sentences to confine- ment were 5 years or more." 8 U.S.C. § 1182(a)(2)(B). And he is not eligible for an adjustment of status because he is not eligible for permanent residence. 8 U.S.C. § 1255(a). Nothing about the attor- ney list would have changed the outcome of Hayles's removal pro- ceedings.

IV.

For the foregoing reasons, Hayles's petition for judicial re- view is DISMISSED.

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