Argued and Submitted En Banc, Seattle, Washington:
June 19, 2014.
[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A095-406-303, Agency No. A095-406-303.
Overruling Li v. Holder, 656 F.3d 898 (9th Cir. 2011), as well as Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013), to the extent it relied on Li, the en banc court held that when the Board of Immigration Appeals issues a decision that denies some claims, but remands any other claims for relief to an Immigration Judge for further proceedings, the Board decision is not a final order of removal with regard to any of the claims, and it does not trigger the thirty-day window in which to file a petition for review.
The court explained that its holding renders premature any pending petitions for review that were filed in this court while background checks or other remanded proceedings were ongoing, but that it would be unfair to punish those petitioners who reasonably relied on Li in filing their premature petitions. The court therefore held that any pending petitions rendered premature by today's decision shall be treated as automatically ripening into timely petitions upon the completion of remanded proceedings, regardless of whether those proceedings have already concluded. The court noted that its holding extends only to petitioners whose petitions for review were filed in this court before the date of this decision.
The court noted that, under the facts of this case, it need not revisit the rule in Pinto v. Holder, 648 F.3d 976, 980 (9th Cir. 2011), and Castrejon-Garcia v. INS, 60 F.3d 1359, 1361-62 (9th Cir. 1995), that the Board's decision is a final order of removal when it remands for consideration of voluntary departure, but denies all other forms of relief.
In light of its holding regarding finality, the court held that it had jurisdiction to consider petitioner's challenge to the Board's determination that her asylum application was time-barred.
The court remanded, as it did in Singh v. Holder, 649 F.3d 1161, 1164-65 (9th Cir. 2011) (en banc), for the Board to address in the first instance whether an asylum applicant's credible and uncontradicted testimony regarding her date of entry meets the statutory " clear and convincing evidence" standard for timeliness.
Vicky Dobrin and Hilary Han (argued), Dobrin & Han, PC, Seattle, Washington, for Petitioner.
Linda Y. Cheng, Patrick J. Glen, and Jesi J. Carlson (argued), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Deborah S. Smith, University of Idaho College of Law, Moscow, Idaho, for Amicus Curiae American Immigration Lawyers Association.
Charles Roth, Chicago, Illinois, for Amicus Curiae National Immigration Justice Center.
Before: Sidney R. Thomas, Chief Judge, and Alex Kozinski, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Sandra S. Ikuta, Mary H. Murguia, Jacqueline H. Nguyen, and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Wardlaw.
WARDLAW, Circuit Judge:
When does an order of removal become " final" for the purpose of seeking judicial review? Panels of our court have reached varying conclusions, creating unnecessary confusion as to the timeliness of petitions for review and our jurisdiction to entertain them. We reheard this matter en banc to clarify the issue of finality of the Board of Immigration Appeals' (" BIA" ) decisions. Today, we adopt a straightforward rule: when the Board of Immigration Appeals issues a decision that denies some claims but remands any other claims for relief to an Immigration Judge (" IJ" ) for further proceedings (a " mixed" decision), the BIA decision is not a final order of removal with regard to any of the claims, and it does not trigger the thirty-day window in which to file a petition for review.
As a result, we have jurisdiction to consider petitioner's asylum claim, but we remand to the BIA in light of Singh v. Holder, 649 F.3d 1161 (9th Cir. 2011) (en banc).
Sama Abdiaziz Abdisalan is a 36-year-old native and citizen of Somalia. Abdisalan asserts that she entered the United States in February 2002. On March 25, 2002, Abdisalan filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (" CAT" ). She claimed that in Somalia, she was forced to undergo female genital mutilation and was kidnapped and raped by members of a rival clan. Abdisalan appeared at a merits hearing before an IJ ...