Ninth Circuit: CAT-Only Petition Can't Stop Deportation
A federal appeals court dismissed Jose Guadalupe Navarrete Pelagio's deportation defense in November 2026 — not because his fear of torture was disbelieved, but because his lawyers challenged the wrong order. The Ninth Circuit ruled it had no jurisdiction to hear a petition that targeted only a Convention Against Torture denial without also contesting the underlying removal order. For immigrants in reinstatement proceedings, the ruling closes a door many did not know existed.
What if you filed a petition challenging only your Convention Against Torture (CAT) denial — and the deadline to challenge your removal order has already passed? That is exactly the situation Jose Guadalupe Navarrete Pelagio faced, and in November 2026 the Ninth Circuit Court of Appeals gave a clear answer: the court dismissed his petition because it had no power to hear it.
The Ninth Circuit ruled that challenging only a CAT order — without also challenging a final order of removal — is not enough to give a federal appeals court jurisdiction (legal authority to hear the case). The court explained that Congress limited federal appeals courts to reviewing "final orders of removal." A ruling that denies CAT protection is a separate decision. It does not merge into the removal order and does not count as one on its own. The panel relied on three recent Supreme Court decisions — Nasrallah v. Barr (2020), Johnson v. Guzman Chavez (2021), and Riley v. Bondi (2025) — to reach this conclusion.
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Navarrete's case shows how quickly procedural missteps can close off legal options. He was first removed in 2003 after trying to enter the US with someone else's documents. He re-entered in 2008. In January 2024, an employer reported him to the Department of Homeland Security (DHS). DHS reinstated his original removal order, which left him eligible only for withholding of removal and CAT protection — not asylum. An asylum officer found he had no reasonable fear of torture in Mexico. An immigration judge agreed. When Navarrete petitioned the Ninth Circuit, he challenged only that CAT ruling — not the reinstated removal order itself. The court said that was a fatal mistake. Advocates from the Amica Center for Immigrant Rights asked the court to let Navarrete amend his petition to add a challenge to the removal order, but the court refused: Navarrete had already given up that challenge before the immigration judge and admitted he had no real legal basis for it.
What this means for people in removal proceedings
This ruling affects anyone who has a reinstated order of removal and is fighting deportation through a CAT or withholding-of-removal claim. If you plan to appeal to a federal circuit court, you must challenge the underlying removal order — not just the denial of CAT protection. Filing only a CAT petition will get your case thrown out before a judge even looks at the merits. The court also confirmed that this rule applies immediately — it cannot be limited to future cases only.
What to do
- If you have a reinstated order of removal and want to appeal to a federal court, talk to an immigration lawyer right away. You must challenge the removal order itself, not only the CAT or withholding denial.
- Do not assume that winning a reasonable-fear interview or CAT hearing automatically gives you a path to appeal. Each step has its own deadline and procedural requirements.
- If an immigration judge has already affirmed a negative reasonable-fear determination in your case, ask a lawyer whether any appeal options remain — and how quickly you must act.
- Keep copies of every order you receive: the original removal order, any reinstatement notice, and every immigration judge decision. You will need them to understand what you can and cannot challenge.
A full breakdown of this topic — in our guide “Appealing to the BIA”.
Fishkin Law Firm, New York
This ruling is a procedural trap that catches many people in reinstatement cases. When DHS reinstates a prior removal order, the clock on challenging that order may already have run — but you still must formally contest it in your federal petition, or the court will dismiss your CAT claim without ever reading it. If you received a negative reasonable-fear determination and an immigration judge affirmed it, consult an immigration attorney immediately to assess whether any avenue to federal review remains open and what must be included in that petition.
Frequently Asked Questions
What is a Convention Against Torture (CAT) claim?
CAT protection is a form of relief that prevents the US government from deporting you to a country where you would likely be tortured with the government's involvement or approval. It is different from asylum. People with reinstated removal orders can apply for CAT protection, but not for asylum.
What is a reinstated order of removal?
If you were previously deported and then re-entered the US without permission, DHS can reinstate (reactivate) the original deportation order. You are then subject to removal again and have very limited options — generally only withholding of removal and CAT protection, not asylum or most other forms of relief.
Can I still fight deportation if I only challenged my CAT denial?
After this Ninth Circuit ruling, a petition that challenges only a CAT denial — without also contesting the final removal order — will be dismissed for lack of jurisdiction. If you are in this situation, speak with an immigration lawyer immediately to find out whether any other legal options remain.
Does this ruling apply outside the Ninth Circuit?
This decision was issued by the Ninth Circuit, which covers California, Arizona, Nevada, and several other western states. Other federal circuit courts may reach different conclusions, but the Supreme Court decisions the Ninth Circuit relied on — including Riley v. Bondi (2025) — apply nationwide and could influence other courts.