Sama Abdisalan v. Eric Holder, Jr. , 774 F.3d 517 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMA ABDIAZIZ ABDISALAN, No. 10-73215
Petitioner,
Agency No.
v. A095-406-303
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
SAMA ABDIAZIZ ABDISALAN, No. 11-71124
Petitioner,
Agency No.
v. A095-406-303
ERIC H. HOLDER, JR., Attorney
General, ORDER AND
Respondent. AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc
June 19, 2014—Seattle, Washington
2 ABDISALAN V. HOLDER
Filed December 15, 2014
Amended January 6, 2015
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
SUMMARY*
Immigration
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ABDISALAN V. HOLDER 3
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.
4 ABDISALAN V. HOLDER
COUNSEL
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.
ORDER
Respondent’s unopposed motion to amend the decision in
this case is granted. The opinion filed on December 15, 2014
is hereby amended as follows. Change the last sentence of
footnote 3 on page 8 to read as follows:
Alternatively, the Attorney General may deny
relief but permit voluntary departure if the
applicant is not removable due to an
aggravated felony or terrorist activity, inter
alia. See 8 U.S.C. § 1229c(b).
IT IS SO ORDERED.
ABDISALAN V. HOLDER 5
OPINION
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),1 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).
1
There are several ways that an alien could be eligible for certain forms
of relief but ineligible for others. For instance, she could meet the “well-
founded fear” bar for asylum but fail to meet the stricter “more likely than
not” standard for withholding of removal and CAT. See Ahmed v. Keisler,
504 F.3d 1183, 1199–1200 (9th Cir. 2007). Alternatively, because the
standard for asylum includes a one-year filing limitation, see 8 U.S.C.
§ 1158(a)(2)(B), whereas withholding and CAT do not, an applicant could
be eligible for withholding or CAT relief but not asylum. Here, for
example, the IJ found that Abdisalan qualified for withholding of removal,
but also concluded that she was ineligible for asylum because she failed
to file her application within one year of entering the United States.
6 ABDISALAN V. HOLDER
I.
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 in 2007. The IJ
found that Abdisalan was credible, but denied her asylum
claim as time-barred, concluding that she had not
demonstrated by clear and convincing evidence that she filed
her asylum application within one year of arriving in the
United States. The IJ did, however, grant Abdisalan
withholding of removal as to Somalia.2
Abdisalan appealed the IJ’s asylum determination, and the
Government declined to challenge the IJ’s grant of
withholding. In November 2008, the BIA affirmed the IJ’s
denial of Abdisalan’s asylum claim and remanded for
background checks related to her withholding claim.
Abdisalan did not file a petition for review of the BIA’s 2008
decision.
In June 2009, the Government completed its background
checks, and the IJ issued another order granting Abdisalan
withholding of removal. Abdisalan again appealed to the
BIA, challenging the agency’s previous determination that
her asylum claim was time-barred. The BIA treated this
2
The IJ also denied Abdisalan’s CAT claim on the merits. Abdisalan
did not appeal this claim to the BIA.
ABDISALAN V. HOLDER 7
appeal as an untimely motion to reconsider and dismissed it
in a September 2010 decision. The BIA again remanded the
matter to the IJ for updated background checks. Finally, in
March 2011, the IJ issued an order confirming that Abdisalan
had completed another round of background checks. This
order also reaffirmed the grant of withholding and reiterated
that Abdisalan’s asylum claim had been denied. Abdisalan
then filed in this court petitions for review of the 2010 BIA
decision and the 2011 IJ order, challenging the finding that
her asylum claim is time-barred. The two petitions have been
consolidated for our review.
A divided three-judge panel of our court held that it
lacked jurisdiction over Abdisalan’s consolidated petition
because she failed to file a petition for review within thirty
days of the BIA’s 2008 decision affirming the IJ’s denial of
her asylum claim. Abdisalan v. Holder, 728 F.3d 1122, 1125
(9th Cir. 2013). A majority of active, nonrecused judges
voted to rehear the petition for review en banc. 750 F.3d
1098 (9th Cir. 2014).
II.
We have jurisdiction to determine our own jurisdiction.
Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000). In this
instance, whether we have jurisdiction is a purely legal
question, which we determine de novo. Annachamy v.
Holder, 733 F.3d 254, 258 (9th Cir. 2013).
8 ABDISALAN V. HOLDER
III.
A.
A “petition for review must be filed not later than 30 days
after the date of the final order of removal.” 8 U.S.C.
§ 1252(b)(1). This time limit is “mandatory and
jurisdictional.” Stone v. INS, 514 U.S. 386, 405 (1995)
(internal quotation marks omitted). As a result, the “point at
which a removal order becomes final is critical for the
purposes of timely petitioning for judicial review.” Ortiz-
Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012).
In the ordinary case, this point is easy to determine: the
thirty-day clock begins to run when the BIA issues a decision
that affirms in full the IJ’s order of removal. However, as
here, an alien often seeks more than one avenue of relief from
deportation in a single application. Commonly the alien will
seek asylum, withholding of removal, and CAT relief, or, in
the alternative, voluntary departure. The standards for
obtaining such relief vary,3 so that, for example, an alien may
be able to obtain withholding but not asylum. Finality is less
obvious when the BIA affirms the denial of relief on some of
an alien’s claims for relief but remands to the IJ for further
3
An applicant for asylum must show “a well-founded fear of
persecution on account of” one of five protected grounds. 8 U.S.C.
§ 1101(a)(42)(A). An applicant for withholding of removal must show
that her “life or freedom would be threatened” on account of one of those
same protected grounds. 8 U.S.C. § 1231(b)(3)(A). To qualify for relief
under CAT, an applicant must establish that “it is more likely than not that
he or she would be tortured.” 8 C.F.R. § 208.16(c)(2). Alternatively, the
Attorney General may deny relief but permit voluntary departure if the
applicant is not removable due to an aggravated felony or terrorist activity,
inter alia. See 8 U.S.C. § 1229c(b).
ABDISALAN V. HOLDER 9
proceedings on others in a “mixed” decision. Does that BIA
decision constitute a “final order of removal” with regard to
the claims denied? To date, we have offered conflicting
answers to that question.
In Go v. Holder, 640 F.3d 1047 (9th Cir. 2011), the IJ
denied the petitioner’s asylum, withholding, and CAT claims.
The BIA affirmed as to asylum and withholding, but
remanded for further consideration of the petitioner’s CAT
claim. Id. at 1050. After additional proceedings before the
IJ, the BIA affirmed the denial of CAT relief. Id. at 1051.
The petitioner never filed a petition for review of the first
BIA decision, but he timely filed a petition challenging the
second BIA decision, seeking judicial review of all three
claims. Id. We held that “because Go’s removal order did
not become final until the Board rejected each of his claims
for relief, . . . our jurisdiction extends to each of his claims.”
Id. at 1052. We acknowledged that the BIA’s first decision
“may have been the final administrative decision with respect
to Go’s eligibility for asylum and withholding relief,” but
explained that “that decision was not a final order of removal
because it left open the possibility that Go might obtain CAT
relief” and therefore avoid removal. Id. at 1051.
We reached a contrary conclusion in Li v. Holder,
656 F.3d 898 (9th Cir. 2011). In Li, the IJ denied the
petitioner’s asylum claim but granted withholding of
removal. Id. at 900. On appeal, the BIA affirmed the IJ’s
denial of asylum, but as in Abdisalan’s case, remanded the
matter to the IJ “to complete background checks required
before withholding of removal can be granted.” Id. at 899.
We held that the BIA decision was a “final order” as to the
petitioner’s asylum claim because it “was not the subject of
the remand, and the board considered and decided the merits
10 ABDISALAN V. HOLDER
of the [asylum] appeal before dismissing it.” Id. at 904. We
therefore concluded that “where the BIA denies [one form of]
relief and remands . . . for background checks required for
alternative relief, we have jurisdiction to consider an appeal
of the final order denying relief.” Id.
In Ortiz-Alfaro, we recognized that “Go appears to be at
odds with Li.” 694 F.3d at 959. We attempted to sidestep
that tension by observing that in both Go and Li, “all
administrative proceedings had concluded at the time we
decided that we had jurisdiction.” Id. We held that we
lacked jurisdiction over Ortiz-Alfaro’s petition because
“administrative proceedings are ongoing in [his] case.” Id.
Despite our efforts in Ortiz-Alfaro, the divided Abdisalan
panel opinion correctly perceived an intractable conflict
between Go and Li.4 We agreed to rehear this case en banc to
resolve that conflict.
The stakes for Abdisalan are high: if the BIA’s 2008
decision was a final order of removal with regard to her
asylum claim, as in Li, then she lost her opportunity to
4
Our sister circuits have also reached divergent holdings on this issue.
The Seventh Circuit has held that a BIA decision denying some claims but
remanding others is final with regard to the claims denied. Viracacha v.
Mukasey, 518 F.3d 511, 513 (7th Cir. 2008) (holding that BIA’s decision
affirming denial of asylum but remanding for completion of background
checks related to withholding was a reviewable “final order” as to
asylum). The Third and Eighth Circuits, however, have held that a mixed
BIA decision is not final. Vakker v. Att’y Gen. of the U.S., 519 F.3d 143,
147–48 (3d Cir. 2008) (holding that BIA’s decision was not a “final order
of removal” because it “did not finally adjudicate all issues in the
proceeding in which it was entered”); Goromou v. Holder, 721 F.3d 569,
576 n.6 (8th Cir. 2013) (holding that BIA decision affirming denial of
asylum but remanding for completion of background checks “is a non-
final order for purposes of judicial review”).
ABDISALAN V. HOLDER 11
challenge the agency’s denial of that claim when she failed to
file a petition for review of the 2008 decision. But if the
BIA’s 2008 decision was not a final order of removal, as in
Go, then we have jurisdiction to review Abdisalan’s asylum
claim as part of her subsequent petitions for review. This
difference is not without significance.5 Both Abdisalan and
the Government urge us to follow Go and overrule Li.
Because Go’s approach better aligns with the text of the
Immigration and Nationality Act (“INA”) and the agency’s
implicit interpretations of the INA, we agree.
B.
We begin with our own jurisdictional statute, 8 U.S.C.
§ 1252. We have jurisdiction to review “a final order of
removal.” Id. § 1252(a)(1). Congress has defined an order of
removal6 as “the order” of the IJ “concluding that the alien is
deportable or ordering deportation.” Id. § 1101(a)(47)(A).
“The order” then becomes “final upon the earlier of”:
(i) a determination by the Board of
Immigration Appeals affirming such order; or
5
The grant of asylum is a broader form of relief that sets one on a path
to citizenship. One year after being granted asylum, an asylee may apply
for adjustment of status to lawful permanent resident. See 8 U.S.C.
§ 1159(b). In contrast, the grant of withholding of removal merely
prevents one from being removed to the country where one’s life or
freedom would be threatened on account of a protected ground. See INS
v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999).
6
The INA refers to an “order of deportation,” but its definition also
applies to the post-REAL ID Act term “order of removal.” Singh v.
Gonzales, 499 F.3d 969, 979 (9th Cir. 2007).
12 ABDISALAN V. HOLDER
(ii) the expiration of the period in which the
alien is permitted to seek review of such order
by the Board of Immigration Appeals.
Id. § 1101(a)(47)(B).
A straightforward reading of this text indicates that an
order of removal cannot become final for any purpose when
it depends on the resolution of further issues by the IJ on
remand. The INA’s repeated reference to “the” order
suggests that Congress contemplated that an alien’s removal
proceedings would typically culminate in one final order of
removal. See In re HP Inkjet Printer Litig., 716 F.3d 1173,
1181 (9th Cir. 2013) (interpreting the statutory term “the” to
mean “singular”); In re Cardelucci, 285 F.3d 1231, 1234 (9th
Cir. 2002) (observing that the “definite article ‘the’
particularizes the subject which it precedes and is [a] word of
limitation as opposed to [the] indefinite or generalizing force
‘a’ or ‘an’” (quoting BLACK’S LAW DICTIONARY 1477 (6th
ed. 1990)); cf. Stone, 514 U.S. at 393–95 (holding that an
amendment to the INA in 1990 abrogated the default
presumption that “Congress visualized a single administrative
proceeding in which all questions relating to an alien’s
deportation would be raised and resolved,” but that it did so
only in the specific context of motions to reopen and
reconsider (internal quotation marks omitted)). If there is
only one final order of removal—as is true in the absence of
a motion to reopen or reconsider—it is difficult to conceive
how the order could become final at multiple points in time.
Congress’s use of the word “final” strengthens this view.
“Final” commonly means “[m]arking the last stage of a
process; leaving nothing to be looked for or expected;
ultimate.” Final, OXFORD ENGLISH DICTIONARY,
ABDISALAN V. HOLDER 13
http://www.oed.com/view/Entry/70319 (last visited Aug. 11,
2014). In the legal context, the term “final” refers to an order
“ending a court action or proceeding leaving nothing further
to be determined by the court or to be done except the
administrative execution of the court’s finding . . . .”
WEBSTER’S THIRD NEW INT’L DICTIONARY 851 (2002); see
also BLACK’S LAW DICTIONARY 747 (10th ed. 2014)
(defining “final” as “not requiring any further judicial action
by the court that rendered judgment to determine the matter
litigated; concluded”). Congress’s use of this familiar term
suggests that it did not intend for an order of removal to
become final while remanded proceedings are ongoing.
Although the statutory text provides a strong indication of
how we should treat mixed BIA decisions, it “does not speak
unambiguously to the issue here.” Scialabba v. Cuellar de
Osorio, 134 S. Ct. 2191, 2203 (2014). In particular, the dual
reference to “the order . . . concluding that the alien is
deportable or ordering deportation” could suggest that two
different kinds of orders are covered; an alien could be
deportable but not ordered deported (because he is possibly
entitled to some form of relief from deportation). See
8 U.S.C. § 1101(a)(47)(A) (emphasis added). The language
of the INA thus does not completely foreclose the possibility
that a mixed BIA decision could constitute a final order of
removal with regard to the claims denied. For further
guidance, we turn to the agency’s interpretations.
Neither the BIA nor the Executive Office for Immigration
Review (“EOIR”) has expressly addressed the issue before
us. Nonetheless, the agency’s regulations, and particularly its
interpretations of those regulations, bolster the view that a
mixed BIA decision is not “final” with regard to any of the
alien’s claims. These well-reasoned, if indirect,
14 ABDISALAN V. HOLDER
interpretations further persuade us that in the absence of a
motion to reopen or reconsider, there is only one final order
of removal per alien, and that order does not become final
until background checks or other remanded proceedings are
complete. Cf. Mejia-Hernandez v. Holder, 633 F.3d 818, 822
(9th Cir. 2011) (applying Skidmore deference to the BIA’s
interpretation “proportional to its thoroughness, reasoning,
consistency, and ability to persuade”).7
As a general matter, EOIR regulations provide that the
BIA “may return a case to . . . an immigration judge for such
further action as may be appropriate, without entering a final
decision on the merits of the case.” 8 C.F.R. § 1003.1(d)(7)
(emphasis added). Also relevant to the particular
circumstances before us is that a comprehensive set of
regulations and BIA decisions governs background checks.
By regulation, the BIA may not grant certain forms of relief,
including withholding of removal, until background checks
have been completed. 8 C.F.R. § 1003.1(d)(6)(i). If
background checks must be completed or updated, the BIA
may remand to the IJ with instructions to carry out the
checks. Id. § 1003.1(d)(6)(ii)(A). When a case is remanded
7
Although we find the agency’s interpretations persuasive under
Skidmore, we conclude that neither Chevron nor Auer deference is
appropriate. The question presented here is whether the BIA’s 2008
decision was a “final order of removal” within the meaning of 8 U.S.C.
§ 1252, our jurisdictional statute. Just as we refuse to apply Chevron
deference when an agency purports to directly define our jurisdiction, see
Dandino, Inc. v. U.S. Dep’t of Transp., 729 F.3d 917, 920 n.1 (9th Cir.
2013) (“It is well-established that the Agency’s position on our
jurisdiction is not entitled to deference under Chevron.” (alterations and
internal quotation marks omitted)), an agency’s implicit interpretation of
our jurisdictional statute is not entitled to controlling Chevron or Auer
deference.
ABDISALAN V. HOLDER 15
to the IJ for background checks, the IJ is required to “consider
the results of the identity, law enforcement, or security
investigations or examinations,” and “[i]f new information is
presented, the immigration judge may hold a further hearing
if necessary to consider any legal or factual issues, including
issues relating to credibility, if relevant.” Id. § 1003.47(h).
“The immigration judge shall then enter an order granting or
denying the immigration relief sought.” Id. Similarly,
EOIR’s interim rule governing background checks states that
when required checks have not been completed, “the Board
will not be able to issue a final decision granting any
application for relief that is subject to the provisions of
§ 1003.47, because the record is not yet complete.”
Background and Security Investigations in Proceedings
Before Immigration Judges and the Board of Immigration
Appeals, 70 Fed. Reg. 4743, 4748 (Jan. 31, 2005).
The BIA has interpreted these regulations in a pair of
published, three-member decisions. First, in In re Alcantara-
Perez, 23 I. & N. Dec. 882 (BIA 2006), the Board considered
how an IJ should proceed if background checks reveal that
the alien may be ineligible for a form of relief that has
already been provisionally granted. The BIA concluded that
because an order remanding the case for background checks
is “not a final decision,” new information that comes to light
on remand permits the IJ to “examine the case in a different
light,” including by holding new hearings. Id. at 884. The
BIA also explained that where the background checks fail to
turn up new evidence, “the Immigration Judge will enter an
order granting relief,” and “[t]hat order then becomes the
final administrative order in the case.” Id. at 885 (emphasis
added).
16 ABDISALAN V. HOLDER
In In re M-D-, 24 I. & N. Dec. 138 (BIA 2007), the BIA
again considered the scope of the IJ’s jurisdiction on remand.
The BIA explained that “when a case is remanded to an
Immigration Judge for the appropriate background checks
pursuant to 8 C.F.R. § 1003.47(h), the Immigration Judge
reacquires jurisdiction over the proceedings.” Id. at 141. On
remand, the IJ “may not reconsider the decision of the
Board,” but “if the background checks reveal new evidence
potentially affecting relief, the Immigration Judge must
consider such evidence before entering an order.” Id.
Reiterating its position in Alcantara-Perez, the BIA remarked
that when it remands for background checks, “no final order
exists.” Id.
These agency interpretations shed further light on what
the text of the statute already implies: in a case like
Abdisalan’s, there is only one final order of removal, and
when the BIA remands to the IJ, that order is not “final” until
administrative proceedings have concluded. Indeed, under
the BIA’s own precedential decisions, the BIA lacked
authority to issue “the final administrative order in
[Abdisalan’s] case” because it remanded the matter to the IJ
for background checks. In re Alcantara-Perez, 23 I. & N.
Dec. at 885. In such circumstances, the BIA has made clear
that “no final order exists.” In re M-D-, 24 I. & N. Dec. at
141.
In a related context, the Supreme Court has long
interpreted the term “final agency action” in the
Administrative Procedure Act to require that an agency’s
action “mark the ‘consummation’ of the agency’s
decisionmaking process.” Bennett v. Spear, 520 U.S. 154,
178 (1997) (quoting Chicago & S. Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). In other
ABDISALAN V. HOLDER 17
words, the action “must not be of a merely tentative or
interlocutory nature.” Bennett, 520 U.S. at 178; see also
Sackett v. EPA, 132 S. Ct. 1367, 1372 (2012) (holding that an
agency order was final in part because its conclusions “were
not subject to further agency review”). In the immigration
context, the agency’s adjudication of an alien’s claims can
hardly be considered fully consummated while background
checks or other remanded proceedings which have the
potential to affect the disposition are still in progress.
Finally, we note that considerations of judicial efficiency
also weigh in favor of reviewing a single final order of
removal. See, e.g., Nat’l Steel & Shipbuilding Co. v. Dir.,
Office of Workers’ Comp. Programs, 626 F.2d 106, 107–08
(9th Cir. 1980) (holding that an agency order involving a
remand is not a reviewable “final order,” and reasoning that
this rule “furthers the same policies as the finality rule
embodied in 28 U.S.C. § 1291”); Dir., Office of Workers’
Comp. Programs v. Brodka, 643 F.2d 159, 161 (3d Cir. 1981)
(noting that declining to exercise jurisdiction over agency
remand orders “furthers the interests of administrative
economy and judicial efficiency embodied in the policy
against piecemeal appeals”). Nor is this rule likely to have an
unfair impact on petitioners. See INS v. Doherty, 502 U.S.
314, 323 (1992) (“[A]s a general matter, every delay works
to the advantage of the deportable alien who wishes merely
to remain in the United States.”).
C.
When the BIA remands to the IJ for any reason, no final
order of removal exists until all administrative proceedings
have concluded. Thus, when the BIA issues a mixed
decision, no aspect of the BIA’s decision is “final” for the
18 ABDISALAN V. HOLDER
purpose of judicial review. By adopting this rule, we overrule
Li as well as Annachamy v. Holder, 733 F.3d 254 (9th Cir.
2013), to the extent that it relies on Li’s finality holding.8
Today’s holding renders premature any pending petitions
for review that were filed in this court while background
checks or other remanded proceedings were ongoing. Here,
for instance, Abdisalan’s petition for review of the 2010 BIA
decision was filed before the conclusion of her agency
proceedings in 2011, and was thus premature at the time it
was filed. Abdisalan also filed a timely petition for review of
the 2011 IJ order, but there are surely other petitioners who
were not so prescient. In particular, there may be petitioners
who filed petitions for review that we now know to be
premature, but who assumed—in reasonable reliance on
Li—that they did not need to file a second petition after their
remanded proceedings were completed. It would be unjust to
punish these petitioners for our own doctrinal inconsistency.
Therefore, we hold 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. Under this rule,
Abdisalan’s premature 2010 petition ripened upon the
conclusion of her administrative proceedings in 2011, which
means we have jurisdiction over both of her petitions. We
take no position on the current circuit split regarding
8
Under the facts of this case, we need not revisit our rule that the BIA’s
decision is a final order of removal when it remands for consideration of
voluntary departure but denies all other forms of relief. See, e.g., Pinto v.
Holder, 648 F.3d 976, 980 (9th Cir. 2011); Castrejon-Garcia v. INS,
60 F.3d 1359, 1361–62 (9th Cir. 1995).
ABDISALAN V. HOLDER 19
treatment of premature petitions generally.9 Our holding
extends only to petitioners whose petitions for review were
filed in this court before today’s date.
Finally, we note that if the BIA wishes to avoid formally
remanding cases to the IJ, it may avail itself of its regulatory
authority to stay proceedings and refrain from issuing a
decision until background checks have been completed or
updated. See 8 C.F.R. § 1003.1(d)(6)(ii)(B); id.
§ 1003.1(d)(6)(iii). Adopting such an approach might prevent
further confusion in the courts of appeals that have yet to
decide this issue.
IV.
We therefore have jurisdiction over Abdisalan’s
consolidated petition for review, which challenges the
agency’s finding that her asylum claim was time-barred.
The Government concedes that because the IJ granted
Abdisalan withholding of removal on the basis of past
persecution, Abdisalan has necessarily met the lesser standard
for a grant of asylum. Regardless of the merits of her asylum
claim, however, she must demonstrate “by clear and
convincing evidence that the application has been filed within
1 year after the date of [her] arrival in the United States.”
9
Compare Khan v. Att’y Gen. of the U.S., 691 F.3d 488, 493 (3d Cir.
2012) (holding that a premature petition for review automatically ripens
once the order of removal becomes final so long as the Government was
not prejudiced by the premature filing), and Herrera-Molina v. Holder,
597 F.3d 128, 132 (2d Cir. 2010) (same), with Moreira v. Mukasey,
509 F.3d 709, 713 (5th Cir. 2007) (holding that a premature petition does
not ripen when the order of removal becomes final), and Jaber v.
Gonzales, 486 F.3d 223, 228–30 (6th Cir. 2007) (same).
20 ABDISALAN V. HOLDER
8 U.S.C. § 1158(a)(2)(B). Although we typically lack
jurisdiction to review whether the applicant’s evidence was
“clear and convincing,” we may review the agency’s
interpretation of this legal standard. See id. § 1252(a)(2)(D)
(stating that we retain jurisdiction over “constitutional claims
or questions of law”).
Abdisalan testified that she arrived in the United States in
February 2002. She explained that after entering via Mexico
and staying in San Diego for a few days, she took a
Greyhound bus to Seattle, where she now lives. Abdisalan’s
relative Halimo Mohamed Nur testified that she saw
Abdisalan in the United States for the first time in February
2002. Although she could not recall the exact date, she
testified that “I believe it was [February] 20 something.” No
person or document placed her timely filing in dispute. Even
if there was some discrepancy in the record as to whether
Abdisalan arrived in February or March of 2002, her
application would have been timely either way.
Despite this testimony, the IJ found that Abdisalan failed
to demonstrate by clear and convincing evidence that her
application was timely, reasoning that she had neither
documentary evidence nor convincing witness testimony to
corroborate her claim that she arrived in the United States
within one year of filing her asylum application. The BIA
affirmed for the same reasons.
In Singh v. Holder, 649 F.3d 1161, 1164–65 (9th Cir.
2011) (en banc), decided after Abdisalan filed her petitions
for review, we held that the REAL ID Act does not require an
asylum applicant to “corroborate credible testimony that he
complied with the one-year filing deadline,” id. at 1165. In
other words, the REAL ID Act did nothing to affect our long-
ABDISALAN V. HOLDER 21
standing rule that testimony regarding timely filing need not
be corroborated to be deemed “clear and convincing.” We
declined to consider, however, “whether Singh simply failed
to meet the standard here,” given that “testimony may be
credible without rising to the level of clear and convincing
evidence.” Id. at 1168–69. We further noted that “the BIA
has provided neither definition nor structure to the contours
of [the “clear and convincing”] standard with respect to the
one-year filing bar,” id. at 1168, and remanded to the BIA so
that it could elaborate on that standard, see id. at 1169. The
Government has informed us that no such elaboration
occurred, as Singh’s case was administratively closed, so no
precedential decision is forthcoming.
Abdisalan’s petition once again raises the question
remanded in Singh—the standards for determining whether,
in light of our en banc opinion in Singh, a pre–REAL ID Act
asylum applicant’s credible and uncontradicted testimony
regarding her date of entry meets the statutory “clear and
convincing evidence” standard. We therefore remand to the
BIA so that it may address that question in the first instance.
GRANTED AND REMANDED.