The Eleventh Circuit, in a split decision, has declined to review whether it should halt the removal of a Jamaican man claiming he faces torture in his home country, finding it does not have jurisdiction without reviewing the final removal order at the same time.

Circuit Judge Andrew L. Brasher said in writing Monday's majority opinion that Winston Lloyd Hayles did not seek to overturn the final removal order, but instead challenged the decision not to grant him relief under the Convention Against Torture. Without the challenge to the underlying removal order, the court cannot review the merits of whether Hayles faced torture in Jamaica, Judge Brasher said.

"Hayles's petition fails to articulate any due process or other legal challenge to his removal order," Judge Brasher said. "Hayles's petition is very specific: he is challenging the November order of the Board [of Immigration Appeals] that denied his request for deferral of removal under the CAT."

Judge Brasher said that the Ninth Circuit in March, in Navarrete v. Bondi, held that a court of appeals does not have jurisdiction to review CAT claims "independent of challenges to final orders of removal" based on governance from three statutes: the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Foreign Affairs Reform and Restructuring Act of 1998, and the REAL ID Act of 2005.

"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,'" the judge said.

Under the Illegal Immigration Reform and Immigrant Responsibility Act, an immigrant here unlawfully can be deported if they have been convicted of an aggravated felony, Judge Brasher said. The act states all questions of "law and fact" that arise from a removal order, including denial of CAT relief, are only available under judicial review of a final order.

"This provision is termed the 'zipper clause' because it consolidates judicial review of immigration proceedings into one action in the court of appeals," Judge Brasher said.

Hayles, who entered the country unlawfully, was sentenced to 20 years in prison after being convicted of voluntary manslaughter and battery for killing a man in Georgia, according to the opinion. The U.S. Department of Homeland Security detained him after his release from prison and began removal proceedings because of his aggravated felonies, the judge noted.

Judge Brasher rejected Hayles' argument that his briefing, which raised a procedural due process claim based on his removal order, should correct his petition's failure to challenge his final removal order. Hayles cannot amend his petition with a brief, he said. There was no "plausible way" to infer Hayles' petition raised the procedural due process arguments he presented in his later briefing to the court, Judge Brasher said.

"Our statutory jurisdiction is based on the words in a petition for review," the judge said.

The BIA, on Nov. 8, 2023, affirmed the immigration judge's denial of CAT relief for Hayles, according to Monday's decision. However, while Hayles waited for a decision from the board, DHS issued its final removal order on July 13, 2023.

While two of the judges adopted the Ninth Circuit's view that a CAT claim can only be reviewed when a petitioner is seeking review of the removal order, Circuit Judge Nancy G. Abudu reached the opposite conclusion. She referred to the Third Circuit's May decision in Laureano v. Attorney General, where the court found it had jurisdiction over CAT claims arising from undisputed final orders of removal.

The Third Circuit conclusion supports that the statutory scheme cited by the majority opinion only requires the existence of a final order and does not require a separate challenge, Judge Abudu said. A challenge under CAT "is inherently a challenge to the execution of the final order of removal" and cannot be separated from it, which would trigger the appellate court's jurisdiction, Judge Abudu said.

"The claim does not sit apart from the removal order; it targets the order's execution," the judge said. "The petitioner accepts that removal has been ordered but contends that the order cannot lawfully be carried out as to a designated country."

To obtain CAT relief, an immigrant must prove that he or she will likely face torture with the acquiescence of a public official and does not have the ability to relocate to a safe area, according to the opinion.

Hayles, according to the opinion, had argued that the immigration judge and the board ignored his allegations that Jamaican police don't wear uniforms and act as part of "political hit squads" that are often associated with local gangs. In addition, he had previously been unsuccessful at relocating.

An attorney for Hayles, Rebecca Sharpless of the University of Miami Law School Immigration Clinic, told Law360 Tuesday that the decision deepens the circuit split and makes Supreme Court review more likely.

"Courts are supposed to presume jurisdiction unless Congress clearly says otherwise, and the disagreement among the circuits shows there is no such clear statement here," she said. "The practical effect of this ruling is stark: it will make it far harder for torture survivors to obtain protection by forcing many to file a petition for review before they have even had a chance to raise their Convention Against Torture claim."

DHS did not immediately respond to a request for comment.

Circuit Judges William Pryor, Andrew L. Brasher and Nancy G. Abudu sat on the panel for the Eleventh Circuit.

The government is represented by Robert Dale Tennyson Jr. of the U.S. Department of Justice.

Hayles is represented by Rebecca Sharpless, Andrea Jacoski, Patricia Abril and Joseph Korzeb of the University of Miami Law School Immigration Clinic.

The case is Winston Hayles v. U.S. Attorney General, case number 24-10516, in the U.S. Court of Appeals for the Eleventh Circuit

--Editing by Emily Kokoll.