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The Ninth Circuit’s amended Navarrete v. Blanche opinion keeps its rule that a petition attacking only a negative reasonable-fear or CAT decision, without challenging the removal order itself, is outside the court’s jurisdiction.
On Nov. 6, 2026, the U.S. Court of Appeals for the Ninth Circuit filed an amended published opinion in Navarrete v. Blanche, No. 24-2776. It again dismissed, for lack of jurisdiction, a petition for review that challenged only the denial of protection under the Convention Against Torture (CAT) in reinstatement proceedings. The panel was Judges Michael Daly Hawkins, Richard R. Clifton and Bridget S. Bade, and Judge Bade wrote the opinion. It replaces the March 23, 2026 opinion reported at 170 F.4th 1214. An order filed with it denied as moot a pending sua sponte en banc call, meaning one that a judge of the court raised on their own, and allowed new rehearing petitions from the amended opinion.
The ruling matters because reasonable-fear review is a large share of petitions for review in the Ninth Circuit. People whose prior removal orders are reinstated cannot seek asylum and usually have only withholding of removal or CAT protection to argue for. Under Navarrete, a petition that targets only the fear or CAT decision does not get the court of appeals’ jurisdiction. That the court reconsidered the case and then reissued the opinion with the same result suggests the rule will remain the law of the circuit unless rehearing is granted.
The case
Jose Guadalupe Navarrete was removed under an expedited removal order in 2003. According to the opinion, he says he reentered in 2008. DHS reinstated the 2003 order in January 2024. An asylum officer found that he lacked a reasonable fear of torture, and an immigration judge affirmed. His petition for review challenged only that negative reasonable-fear determination and the resulting CAT denial. It did not challenge the expedited removal order or its reinstatement.
The holding
The court’s jurisdiction comes from 8 U.S.C. 1252(a)(1), which allows review of a “final order of removal.” The court relied on three Supreme Court decisions: Nasrallah v. Barr (2020), Johnson v. Guzman Chavez (2021) and Riley v. Bondi (2025). Following them, the panel held that a CAT order is not itself a final order of removal and does not merge into one. CAT claims can be reviewed only as part of review of a final removal order. The amended opinion states the rule this way: “a CAT order does not merge into the final order of removal” (p. 18). A petition that brings a standalone CAT claim therefore does not invoke the court’s jurisdiction.
Amicus Amica Center for Immigrant Rights argued that Monsalvo v. Bondi (2025), in which the Supreme Court treated a voluntary-departure ruling as part of the removal order, pointed the other way. The panel distinguished Monsalvo. In its view, only rulings that condition or extinguish the government’s authority to remove at all merge into the final order. Voluntary departure does that. A CAT order bars removal only to a particular country, so it does not. The court also refused to apply its jurisdictional ruling only to future cases, reasoning that jurisdictional rules cannot be applied prospectively only.
Navarrete asked for leave to add a challenge to the reinstated order. The panel denied it as futile. The amended opinion gives three grounds: he forfeited the challenge before the immigration judge, waived it by not briefing it, and conceded at oral argument that it was frivolous. It also notes that he first asked to amend at argument.
What changed in the amended opinion
The holding and disposition are the same as in March. A comparison of the two versions shows these changes:
- A March paragraph describing the court’s only jurisdiction over CAT orders as “pendent” to review of a removal order was removed.
- New footnotes describe reinstatement as an expedited process unlike the usual removal case, and explain that the REAL ID Act channels CAT review to the courts of appeals.
- The Monsalvo discussion now quotes Riley more extensively.
- The futility ruling now rests expressly on forfeiture and waiver as well as Navarrete’s concession.
- A new footnote 7 notes that the court does not decide whether reinstating an expedited removal order produces a final order of removal. The Attorney General calls that question unsettled.
- A second amicus, the National Immigration Litigation Alliance, now appears, with counsel including the Stanford Law School Supreme Court Litigation Clinic.
The order does not say which judge called for en banc review or why the call became moot beyond the filing of the amended opinion.
Practical takeaways
- Frame the petition around the removal order. In the Ninth Circuit, a petition for review from a negative reasonable-fear or CAT decision in reinstatement proceedings should identify and challenge the reinstated (or underlying) removal order, not only the fear determination.
- Preserve the challenge early. Navarrete lost his chance to amend because he had not raised a challenge to the order before the immigration judge or in his brief. Raise any non-frivolous objection to the reinstatement at the earliest stage.
- Watch footnote 7. Whether a reinstated expedited removal order is a reviewable final order remains open. That question could decide whether some petitioners can reach the court at all.
- Scope: this is binding precedent in the Ninth Circuit only. Other circuits’ approaches after Riley may differ.
Dates and decisions to watch
- Whether Navarrete or the amici file new petitions for panel or en banc rehearing from the Nov. 6 amended opinion, under the deadlines in the Federal Rules of Appellate Procedure and Ninth Circuit rules.
- Whether a later panel takes up the finality question the court reserved in footnote 7, or a certiorari petition is filed.
Related coverage: Reinstatement Order Appeal: Tenth Circuit Shuts Door on Late Filings and CAT Protection: Fifth Circuit Rejects Past Persecution Presumption.
This article is for general information and is not legal advice.
Sources
- Order and Amended Opinion, Navarrete v. Blanche, No. 24-2776 (9th Cir. Nov. 6, 2026)
- Opinion, Navarrete v. Bondi, No. 24-2776 (9th Cir. Mar. 23, 2026), 170 F.4th 1214
- 8 U.S.C. 1252, Judicial review of orders of removal, Cornell LII
- 8 U.S.C. 1231(a)(5), Reinstatement of removal orders, Cornell LII
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