The Fifth Circuit has determined that a petitioner who is subject to a reinstated removal order is not eligible for VAWA cancellation of removal. The panel also suggested that there may not be jurisdiction to review the reinstatement order.
“Nasrallah and Johnson may mean that a petitioner who wishes to challenge a reinstatement order in federal court must file within 30 days of the reinstatement order—without waiting for withholding-only proceedings to conclude. That’s what the Second Circuit recently held in Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190–95 (2d Cir. 2022). But even that conclusion relies on the premise that a reinstatement order is a final order of removal under Section 1252. Again, we have held that it is. That conclusion, too, may require reassessment in the wake of Nasrallah and Johnson. One might think that a reinstatement order is not a final order concluding that the alien is deportable or ordering deportation because a reinstatement order presupposes a prior order of removal and because the statute does not authorize a new removal order—it reinstates one from its original date.”
Though the court did not ultimately resolve this issue, but raised it for future litigants to consider.
The full text of Ruiz Perez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-61133-CV0.pdf