Mahecha-Granados v. Holder, Jr. , 324 F. App'x 735 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 1, 2009
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
YENNY DURLANDY
MAHECHA-GRANADOS,
Petitioner,
v. No. 08-9532
(Petition for Review)
ERIC H. HOLDER, JR., *
United States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before TACHA, MURPHY, and HARTZ, Circuit Judges.
Yenny Durlandy Mahecha-Granados petitions for review of an order of the
Board of Immigration Appeals (BIA), reversing a grant of asylum by an
*
In accordance with Fed. R. App. P. 43(c)(2), Eric H. Holder Jr. is
substituted for Michael B. Mukasey as the respondent in this appeal.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Immigration Judge (IJ) and remanding to the IJ for further proceedings.
Concluding that this court lacks jurisdiction, we dismiss the petition for review.
Background
Ms. Mahecha-Granados is a citizen of Columbia. She entered the United
States legally in March 2004, but remained beyond the authorized time. She filed
an application for asylum and restriction on removal in March 2005. At a hearing
in June 2005, she conceded removability and requested a hearing on asylum,
restriction on removal, protection under the Convention Against Torture (CAT),
and voluntary departure.
At a later hearing Ms. Mahecha-Granados presented evidence in support of
her claim of a well-founded fear of persecution by the Revolutionary Armed
Forces of Colombia, also known as FARC, if she returned to Columbia. The IJ
found that removability was established by clear, convincing, and unequivocal
evidence. But he granted Ms. Mahecha-Granados’s application for political
asylum. The IJ did not address her applications for restriction on removal,
protection under the CAT, or voluntary departure.
The Department of Homeland Security (DHS) appealed the IJ’s asylum
decision to the BIA and also filed a motion to remand to the IJ for a “more
substantive decision.” Admin. R., DHS Motion to Remand (Jan. 17, 2007) at 2. 1
1
In their briefs the parties cite to a consecutively paginated administrative
(continued...)
-2-
The BIA denied DHS’s motion to remand for a more substantive decision, but
reversed the IJ’s order granting asylum, and then “remanded for further
proceedings in order for the Immigration Judge to identify a country or countries
to which the respondent may be removed and to consider any other applications
for relief or protection for which she may be eligible.” Id., BIA Decision
(March 26, 2008) at 1(footnote omitted). The BIA further specified that its
remand to the IJ was “for the issuance of a new decision.” Id. at 2.
The Attorney General has moved to dismiss Ms. Mahecha-Granados’s
petition for review of the BIA’s decision, arguing that because of the BIA’s
remand to the IJ, this court lacks jurisdiction.
Discussion
Ms. Mahecha-Granados advances several arguments in support of her
contention on the merits that the BIA’s reversal of the IJ’s grant of asylum was in
error. But we must first determine whether we have jurisdiction to consider her
claims. See Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1143 (10th Cir. 2007).
“The jurisdiction of United States Circuit Courts of Appeals is grounded in
statute.” Bender v. Clark, 744 F.2d 1424, 1426 (10th Cir. 1984). Our jurisdiction
to review removal proceedings arises under a specific statutory grant in the
1
(...continued)
record, but the record received by this court is not paginated. Therefore, we will
cite to the relevant page numbers of the individual documents contained in the
record.
-3-
Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a)(1). See Hamilton v.
Gonzales, 485 F.3d 564, 565 (10th Cir. 2007). Section 1252(a)(1) “establishes
judicial review of a final order of removal.” Id. (internal quotation marks and
brackets omitted). “We construe § 1252(a)(1) narrowly, and have consistently
found we lack jurisdiction to review immigration decisions that fall short of a
final removal order.” Id. at 566.
Although the term order of removal is not expressly defined by statute, the
term order of deportation is defined by 8 U.S.C. § 1101(a)(47)(A) as “the
order . . . concluding that the alien is deportable or ordering deportation.” When
construing the INA, we have stated that “[t]he terms removable and deportable
are synonymous.” Hamilton, 485 F.3d at 565 n.2. In Sosa-Valenzuela we held
that the BIA has no authority to issue an order of removal in the first instance.
483 F.3d at 1147. But we acknowledged that “[i]f the IJ makes a finding of
removability, that finding satisfies § 1101(a)(47)’s definition of an order of
deportation. In those circumstances, the BIA can order removal if it reverses the
IJ’s [grant of relief from removal].” Id. at 1146. To support this conclusion we
cited cases from other circuits holding that there was a final, reviewable order of
removal when “the BIA has merely eliminated impediments to removal and
effected the original removal order.” Id. (internal quotation marks omitted).
Distinguishing those decisions, however, Sosa-Valenzuela held that we did not
-4-
have jurisdiction in that case because the IJ had made no express finding of
removability and had not entered an order of removal. Id. at 1147.
In the case now before us Ms. Mahecha-Granados conceded removability,
and the IJ made an express finding that she is removable. On this basis she
contends that under the reasoning of the decisions cited but distinguished in
Sosa-Valenzuela, the BIA’s reversal of the IJ’s grant of asylum gave effect to the
IJ’s order of removal, making it final and reviewable by this court. The Attorney
General counters that the BIA’s decision is not final because it remanded
Ms. Mahecha-Granados’s case to the IJ for further proceedings. We agree with
the Attorney General that as a result of the BIA’s remand, this court does not
have jurisdiction to consider Ms. Mahecha-Granados’s petition for review.
We lack jurisdiction to review a removal order unless it is final. This
restriction echoes the limitation of our jurisdiction under 28 U.S.C. § 1291 to
“final decisions” of the federal district courts. We have stated that “[t]he purpose
of the finality requirement is to avoid piecemeal review,” and “[g]enerally, to be
final and appealable, the district court’s judgment must end the litigation and
leave nothing to be done except execute the judgment.” Bender, 744 F.2d at 1426(internal quotation marks and brackets omitted). Thus, we held in Bender that a
district court’s remand to an administrative agency for further proceedings “is
ordinarily not appealable because it is not a final decision.” Id. at 1426-27. And
more recently we have cautioned that exceptions to the general rule “must be
-5-
narrowly construed.” Trout Unlimited v. U.S. Dep’t of Agric., 441 F.3d 1214,
1219 (10th Cir. 2006) (internal quotation marks omitted). The importance of
finality and the avoidance of piecemeal judicial review is no less a concern in the
immigration context. See Baca-Prieto v. Al Guigni, 95 F.3d 1006, 1008-09
(10th Cir. 1996) (acknowledging pertinence of administrative-remand rule in
immigration context, but applying exception to that rule articulated in Bender).
Against this backdrop we cannot agree with Ms. Mahecha-Granados’s
contention that the BIA’s order reversing a grant of asylum and remanding to the
IJ for further proceedings is subject to our judicial review. As a result of the
BIA’s remand order, the IJ has before him claims seeking other “impediments”
to her removal. Ms. Mahecha-Granados raised these additional claims, but
because the IJ granted her asylum, his initial decision did not reach them.
Ms. Mahecha-Granados would have us review the BIA’s reversal of the IJ’s grant
of asylum at the same time that the IJ is considering, on remand, her other
petitions for relief from removal. We decline to engage in such piecemeal
review. See Bender, 744 F.2d at 1426-27 (district court’s remand to
administrative agency for further proceedings is ordinarily not appealable);
Rhodes-Bradford v. Keisler, 507 F.3d 77, 81 (2d Cir. 2007) (remand to IJ to
consider avenues of relief from removal not initially addressed by IJ “would not
be purely ministerial”).
-6-
Ms. Mahecha-Granados points us to cases from our sister circuits holding
that a court of appeals had jurisdiction to review a BIA decision reversing a grant
of relief from removal, despite a remand by the BIA to the IJ for limited further
proceedings. But none of these cases involved remands for the IJ to consider
further claims for relief from removal.
The first case cited by Ms. Mahecha-Granados, Yusupov v. Attorney
General, 518 F.3d 185 (3d Cir. 2008), is the most instructive. In that case the
BIA granted the aliens deferral of removal under the CAT, but denied asylum and
restriction on removal. Id. at 192-94. On petitions for review the court
considered whether it had jurisdiction to consider the denials of asylum and
restriction on removal, in light of the BIA’s remand to the IJ to allow DHS “to
complete or update identity, law enforcement, or security investigations.” 2 Id. at
196. Reasoning that nothing in the completed or updated investigations of
petitioners on remand could affect the grants or denials of relief from removal
involving them, id. at 196 n.19, the court concluded that it had jurisdiction over
2
8 C.F.R. § 1003.1(d)(6)(i) precludes the BIA from affirming or granting
certain relief from removal unless all required identity, law enforcement, or
security investigations or examinations have been completed. The regulation
further provides that the BIA “will determine the best means to facilitate the final
disposition of the case,” including remanding to the IJ with instructions to allow
DHS to complete such investigations. See § 1003.1(d)(6)(ii)(A); see also
8 C.F.R. § 1003.47.
-7-
the petitions because “[t]hese administrative matters [on remand] do not affect the
controlling removal determination,” id. at 196.
In Yusupov the Third Circuit analyzed its jurisdiction to review the BIA’s
decision by applying settled law regarding the appealability of administrative
orders. The court reasoned:
The Supreme Court has specified that administrative orders are final
when they mark the consummation of the agency’s decision-making
process, and when rights or obligations have been determined or
when legal consequences will flow from the decision. Ordinarily a
remand to an administrative agency is not a final order for purposes
of appellate jurisdiction.
Id. at 195 (internal quotation marks and citation omitted). Ultimately the court
concluded that an exception to the administrative-remand rule was warranted in
that case. But the nature of the remand here does not justify such an exception.
Unlike the remand in Yusupov, the BIA’s remand for the IJ to consider
Ms. Mahecha-Granados’s additional petitions for relief from removal and to enter
a new decision could affect the controlling removal determination.
In three other cases cited by Ms. Mahecha-Granados, the courts found that
a petition for review of a BIA order denying relief from removal was not
prematurely filed, even though an IJ was simultaneously considering the issue of
country of removal or a petition for voluntary departure on remand from the BIA.
See Saldarriaga v. Gonzales, 402 F.3d 461, 465 n.2 (4th Cir. 2005) (voluntary
departure); Castrejon-Garcia v. I.N.S., 60 F.3d 1359, 1361-62 (9th Cir. 1995)
-8-
(voluntary departure); Del Pilar v. U.S. Att’y Gen., 326 F.3d 1154, 1156
(11th Cir. 2003) (relying on Castrejon-Garcia in holding that BIA’s remand for
limited purpose of permitting alien to designate a country of removal did not
preclude exercise of jurisdiction to review BIA’s reversal of IJ’s grant of waiver
of inadmissibility). 3 The remands in these cases were for a “limited purpose,”
Del Pilar, 326 F.3d at 1156, or for “subsidiary determinations,” Saldarriaga,
402 F.3d at 465 n.2, and none involved consideration of additional claims for
relief from removal. Thus, these decisions are consistent with the reasoning in
Yusupov, because the issues to be considered on remand could not affect the
controlling removal determinations. 4 Here, in contrast, the BIA remand order
called for a new decision and specifically directed the IJ to consider other
applications for relief or protection from removal. Thus, the cases cited by
Ms. Mahecha-Granados do not persuade us that we have jurisdiction to review
the BIA’s order.
3
Ms. Mahecha-Granados also relies on Perkovic v. I.N.S., 33 F.3d 615, 618
(6th Cir. 1994), in which the BIA reversed an IJ’s grant of asylum and remanded
to the IJ. Perkovic is distinguishable from this case because the petition for
review was filed after the IJ entered a decision designating a country of removal
and granting voluntary departure, rather than before the IJ reached its decision on
remand. See id.4
We need not, and do not, decide today whether this court would have
jurisdiction to review a BIA order reversing a grant of relief from removal but
remanding to the IJ only for consideration of country of removal and voluntary
departure.
-9-
Conclusion
The petition for review is dismissed for lack of jurisdiction.
Entered for the Court
Harris L Hartz
Circuit Judge
-10-