MUKANTAGARA v. MULLIN USCIS USCIS (2026)

ORDER

This matter is before the court on the government's Petition for Rehearing En Banc and on plaintiffs’ Opposition thereto.

In light of the Supreme Court's holding in Mullin v. Doe, No. 25-1083, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2026 WL 1825840 (U.S. June 25, 2026), and our independent duty to examine our own jurisdiction, Williams v. Akers, 837 F.3d 1075, 1077 n.2 (10th Cir. 2016) (citation omitted), we grant the government's request for panel rehearing. See Fed. R. App. P. 40(f). The request for rehearing en banc is denied as moot.

We VACATE the January 12, 2026 judgment and order supplemental briefing on the questions set forth below. Both parties should address the first two questions, and the government should also address the third.

1. Whether Mullin v. Doe’s statement that “[i]f the final agency action is unreviewable, then so too are subsidiary determinations,” 2026 WL 1825840, at *10, ––– U.S. at ––––, ––– S.Ct. ––––, calls into question our holding in Mukantagara v. Noem that 8 U.S.C. § 1252(a)(2)(B)(ii) allows for review of USCIS's subsidiary determinations under 8 U.S.C. § 1157(c)(4)?

2. Whether judicial review of USCIS's determination that Ms. Mukantagara and Mr. Shyaka were not refugees at the time of their admission to the United States is available? If so, what is the basis for that review?

3. Throughout this litigation, the government has taken at least two positions on whether the termination decision is reviewable in a petition for review. In the last panel hearing, it argued that Mr. Shyaka and Ms. Mukantagara could “supplement the record to include USCIS's initial termination [decision] if needed for a [petition for review].” See Mukantagara II Resp. Br. at 42; id. at 40–42. But in its response to Mr. Shyaka's petition for review, the government argued that USCIS's termination decision was “not part of the administrative record before the [BIA] and thus may not be considered by the Court on review.” See Shyaka v. Blanche, Case No. 21-9583, Dkt. No. 26, at 2. Which is the government's position?

The parties’ simultaneous supplemental briefs shall be filed within 21 days of the date of this order. The briefs may be no longer than 25 pages in a 13- or 14-point font, and while they need not comply with the content requirements of Fed. R. App. P. 28(a), they should be organized in a manner that is helpful to the court. Hard copies need not be submitted.

The court intends to set argument in this matter before September 1, 2026; accordingly, requests for extension of time are strongly discouraged. The Clerk's Office will contact the parties to schedule the oral argument.

Per Curiam