Full Third Circuit Weighs Whether Courts Can Review Torture Claims From People With Reinstated Deportation Orders, as Appeals Courts Split

The full U.S. Court of Appeals for the Third Circuit heard argument on Oct. 14 over whether federal courts may review the denial of torture protection to people whose old deportation orders were reinstated after they came back to the United States. The case, Laureano v. Attorney General, puts the Philadelphia-based court at the center of a split among appeals courts that will decide whether people in so-called withholding-only proceedings get any judicial review at all.

The group at stake is not small. When DHS finds that someone deported before has returned without permission, it reinstates the earlier order under 8 U.S.C. § 1231(a)(5), which says that order cannot be reopened or reviewed and bars most forms of relief. What remains, after a fear screening, is a request to an immigration judge for withholding of removal or protection under the Convention Against Torture (CAT). In 2013, DHS’s annual enforcement report counted 170,247 removals carried out on reinstated orders, about 39 percent of all removals that year. Noncitizens with criminal records removed on administrative orders go through the same withholding-only track.

A Supreme Court answer that created a timing trap

The fight grows out of Riley v. Bondi, decided June 26, 2025. Writing for a 5-4 majority, Justice Samuel Alito held that a Board of Immigration Appeals order denying CAT relief “is not a final order of removal,” and a final order of removal is what 8 U.S.C. § 1252(a)(1) lets courts review. All nine justices agreed the 30-day filing deadline is a rule the government can waive, not a limit on the court’s power. The majority said review of removability and of withholding claims “should occur in a single appellate proceeding.” Justice Sonia Sotomayor, dissenting in part, put the practical problem in one line: “One should not be required to appeal an order before it exists.”

The reinstatement order comes first; the Board’s CAT ruling often arrives months later. Appeals courts have since had to decide whether a petition aimed at the CAT ruling can carry the removal order with it.

Where the circuits now stand

A divided Third Circuit panel said yes on May 29. Judges Patty Shwartz and D. Michael Fisher held that Patria Laureano’s 2023 reinstatement order is itself a final order of removal that the court could review alongside the agency’s withholding and CAT rulings, and they said outright that they were parting ways with the Ninth Circuit. Judge Paul Matey dissented and would have dismissed. Laureano, a Dominican national ordered removed in 2008 after a heroin conspiracy conviction, still lost: the panel upheld the CAT denial and split evenly on withholding, which left the Board’s decision in place. The full court agreed to rehear the jurisdiction question after the government asked it to, Bloomberg Law reported.

Ninth Circuit: Navarrete v. Bondi (March 23, 2026) found no jurisdiction over a standalone CAT claim tied to a reinstated order.
Eleventh Circuit: Hayles v. U.S. Attorney General (June 22, 2026) agreed with the Ninth and rejected the Third Circuit panel.
Fourth Circuit: Riley v. Blanche (July 2, 2026), on remand, let the petitioner amend his petition to cover his administrative removal order, curing any defect, over a dissent.
Eighth Circuit: B.P. v. Blanche (Sept. 2, 2026) dismissed a CAT-only petition and found any challenge to the underlying order untimely.

At the en banc argument, according to Bloomberg Law, Justice Department lawyer Drew Ensign argued that reinstatement is a ministerial act the statute places beyond review. Laureano’s lawyer, David Zimmer, said the court can review the reinstatement order without touching the original 2008 order. Judge Cheryl Ann Krause tested the government’s view with a hypothetical about a U.S. citizen who shares a name with someone removed years earlier.

What the full court’s answer would change

If the full court sides with the government, the Third Circuit joins the Eighth, Ninth and Eleventh, leaving the Fourth Circuit’s amendment route as the outlier. If it keeps the panel’s view, the split hardens. Either way, Supreme Court review is a realistic next step. The underlying tension is structural: the 1998 law implementing the torture treaty makes a petition to a court of appeals the only route for CAT claims, while the reinstatement statute says the old order cannot be reviewed. The circuits disagree about how the two fit together.

Until then, geography decides whether a federal judge ever looks at a torture ruling for someone with a reinstated or administrative order. Timing is the other exposure: the 30-day deadline runs from the removal order, and the government may enforce it rather than waive it. The Fourth Circuit read Riley as allowing a timely “protective” petition filed against the removal order and held until the Board rules; whether other circuits will accept that route is unsettled.

The full court may not reach the merits question that split the panel, whether the Board’s presumption that drug-trafficking aggravated felonies are “particularly serious crimes” squares with the statute. It has no deadline to rule.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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