Cano-Saldarriaga v. Holder, Jr. , 729 F.3d 25 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2089
HILDEBRANDO CANO-SALDARRIAGA,
a/k/a Cano Hildebrando,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
José A. Vázquez and Ferreira & Vázquez on brief for
petitioner.
Ada E. Bosque, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice,
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, and William C. Peachey, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
September 4, 2013
LYNCH, Chief Judge. Petitioner Hildebrando Cano-
Saldarriaga seeks review of a decision by the Board of Immigration
Appeals (BIA) reversing a grant of cancellation of removal and
remanding for entry of an order of removal. Following remand, the
petitioner filed a new application for asylum and withholding of
removal under the Immigration and Naturalization Act and for
protection under the Convention Against Torture, currently pending
review by the BIA. In light of these ongoing administrative
proceedings, we decline to exercise jurisdiction to review the
BIA's decision at this time.
I. Facts and Background
Hildebrando Cano-Saldarriaga (Cano) is a forty-year-old
native and citizen of Colombia. He was admitted to the United
States as a lawful permanent resident on March 11, 1981. Following
Cano's conviction for shoplifting in 1992 and for assault with a
deadly weapon in 1997, the former Immigration and Naturalization
Service, now the Department of Homeland Security (DHS), initiated
removal proceedings against him on November 21, 2001. Cano denied
that he was removable as charged and applied for cancellation of
removal under 8 U.S.C. § 1229b(a). While acknowledging Cano's
extensive criminal history, including numerous additional criminal
charges, the Immigration Judge (IJ) granted Cano cancellation of
removal in light of the evidence of his substantial mental
disability.
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On de novo review, the BIA reversed the IJ's grant of
cancellation, finding that any favorable considerations arising
from Cano's disability failed to outweigh the dangers posed by his
significant criminal history. The BIA remanded the case to the IJ
for entry of an order of removal and designation of a country of
removal. Following the BIA's remand, Cano filed a timely
application for asylum under 8 U.S.C. § 1158(a), withholding of
removal under 8 U.S.C. § 1231(b)(3)(A), and protection under the
Convention Against Torture (CAT). The IJ denied all claims for
relief. Cano appealed the IJ's decision to the BIA, where it is
currently pending review.
II. Discussion
The Immigration and Naturalization Act (INA) authorizes
federal courts to review only "final order[s] of removal" issued by
the BIA. 8 U.S.C. § 1252(a)(1). An order of removal includes "the
order of the special inquiry officer, or other such administrative
officer to whom the Attorney General has delegated the
responsibility for determining whether an alien is [removable],
concluding that the alien is [removable] or ordering [removal]."
8 U.S.C. § 1101(a)(47)(A); Hakim v. Holder, 611 F.3d 73, 76-77 (1st
Cir. 2010). The order of removal becomes final either when the BIA
affirms the order or when the period in which the alien may seek
review by the BIA expires. 8 U.S.C. § 1101(a)(47)(B); Hakim, 611
F.3d at 77. A final order is not limited to a determination of
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removability, but "includes all matters on which the validity of
the final order is contingent." Immigration & Naturalization Serv.
v. Chadha, 462 U.S. 919, 938 (1983) (quoting Chadha v. Immigration
& Naturalization Serv., 654 F.2d 408, 412 (9th Cir. 1981))
(citation and internal quotation mark omitted). A court may review
a final order only after the petitioner has "exhausted all
administrative remedies available to the alien as of right."
8 U.S.C. § 1252(d); Ahmed v. Holder, 611 F.3d 90, 97 (1st Cir.
2010).
It remains an open question whether the BIA's decision in
this case, remanding for the entry of a removal order and the
designation of a country of removal, itself constitutes a final
order. This court has so far declined to resolve whether an order
from the BIA mandating a petitioner's removal while remanding to
the IJ for largely ministerial proceedings qualifies as final. See
Hakim, 611 F.3d at 79 ("We thus need not address whether a BIA
order denying relief from removal and remanding for consideration
of voluntary departure is a final order of removal.").1 While the
Government cites a number of cases suggesting that remanding for
consideration of further claims for relief does not constitute a
final order under the INA, these cases all involve BIA orders
1
In Hasan v. Holder, 673 F.3d 26 (1st Cir. 2012), this court
did deny a motion to dismiss for lack of a final order where the
BIA had remanded a case for entry of a voluntary departure period,
id. at 31 n.5, but the court issued no formal holding or opinion to
explain its reasoning.
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explicitly contemplating ongoing proceedings bearing on the
substantive question of the petitioner's removal status. See,
e.g., Go v. Holder, 640 F.3d 1047, 1051-52 (9th Cir. 2011)
(involving "remand of [petitioner's] CAT claim"); Chupina v.
Holder, 570 F.3d 99, 103-04 & n.3 (2d Cir. 2009) (involving remand
"for further proceedings on . . . CAT protection and withholding of
removal"); Mahecha-Granados v. Holder, 324 F. App'x 735, 736, 738
(10th Cir. 2009) (involving remand "to consider any other
applications for relief or protection"). They do not bear directly
on the present case, in which the BIA's order contemplated a
largely ministerial proceeding with no potential for future relief
from removal, but the petitioner subsequently raised novel claims
for asylum, withholding, and CAT protection.2 Where the BIA
remands a case for largely ministerial proceedings, such as
consideration of voluntary departure or designation of a country of
removal, several circuits have identified such remands as final
orders under the INA. See, e.g., Pinto v. Holder, 648 F.3d 976,
986 (9th Cir. 2011) (remanding to consider voluntary departure);
Alibasic v. Mukasey, 547 F.3d 78, 83-84 (2d Cir. 2008) (voluntary
departure); Saldarriaga v. Gonzales, 402 F.3d 461, 465 n.2 (4th
Cir. 2005) (voluntary departure); Del Pilar v. U.S. Att'y Gen., 326
2
Although the BIA here remanded the case for the explicit
purpose of entering an order of removal, where the BIA does not
explicitly identify a stated purpose as the exclusive purpose on
remand, the IJ retains discretion to consider any related matters.
See In re Patel, 16 I. & N. Dec. 600, 601 (BIA 1978).
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F.3d 1154, 1157 (11th Cir. 2003) (country of removal). However, no
courts have yet addressed how a petitioner's choice to file new
substantive claims for relief following the BIA's remand impacts
the finality of the BIA's initial order.
In the absence of adequate briefing on this point, we
ultimately find that this is not a case that requires us to
confront such nuances of definition. As this court has previously
noted, even where a decision by the BIA constitutes a final order
of removal, we may "decline to exercise jurisdiction . . . for
prudential reasons." Hakim, 611 F.3d at 79. One core
consideration is the interest in advancing "judicial economy," see
id., not least by avoiding "piecemeal review" of removal
proceedings where substantive claims for relief remain pending
through administrative channels, Mahecha-Granados, 324 F. App'x at
738. Cf. Foti v. Immigration & Naturalization Serv., 375 U.S. 217,
232 (1963) ("Bifurcation of judicial review of [removal]
proceedings is not only inconvenient; it is clearly
undesirable . . . ."); id. at 227 ("Review of the denial of
discretionary relief . . . [and] the [removability] issue . . .
should . . . be made by the same court at the same time.").
In this case, although the BIA remanded Cano's case to
the IJ for entry of a removal order and designation of a country of
removal, Cano subsequently filed a timely application for asylum,
withholding of removal, and CAT protection. The IJ considered
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these new claims on remand in the fair exercise of her discretion.
See In re Patel, 16 I. & N. Dec. 600, 601 (BIA 1978) ("[A] remand
is effective for the stated purpose and for consideration of any
and all matters which the Service officer deems appropriate in the
exercise of his administrative discretion or which are brought to
his attention in compliance with the appropriate regulations.").
Having been denied by the IJ, Cano's claims are now pending review
by the BIA, following which Cano may very well, once more, petition
this court for review. Under these circumstances, the interest in
avoiding judicial waste counsels us to withhold consideration of
Cano's petition until it may be consolidated with any subsequent
issues arising from his pending applications for relief. We thus
decline to exercise jurisdiction over the proceedings at this time.
III. Conclusion
For the foregoing reasons, the petition for review is
DENIED.
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