Bao Tai Nian v. Holder , 683 F.3d 1227 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAO TAI NIAN, 
Petitioner, No. 07-73643
v.
 Agency No.
A074-394-421
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 12, 2012—San Francisco, California
Filed June 28, 2012
Before: Ferdinand F. Fernandez, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
7685
NIAN v. HOLDER 7687
COUNSEL
Christy A. Chouteau, Aguirre Law Group A.P.C., San Diego,
California, for the petitioner.
Eric W. Marsteller, U.S. Department of Justice, Office of
Immigration Litigation, Civil Division, Washington, DC, for
the respondent.
OPINION
BEA, Circuit Judge:
Bao Tai Nian (“Bao”), a native and citizen of China, peti-
tions for review of the Board of Immigration Appeals’
(“BIA”) decision denying his application for asylum, with-
holding of removal, and protection under the Convention
Against Torture (“CAT”). Bao arrived in the United States as
an alien crew member. His asylum proceeding was thus lim-
ited in scope—a so-called “asylum-only” proceeding.
Because the Immigration Judge (“IJ”) and BIA did not issue
a final order of removal, this case presents the question
whether we have jurisdiction to consider Bao’s petition. We
conclude that we have jurisdiction over the petition, and we
deny review.
7688 NIAN v. HOLDER
I. Content of “asylum-only” proceedings.
This case involves an “asylum-only” proceeding under 8
C.F.R. § 208.2(c). “Asylum-only” proceedings apply to cer-
tain groups of aliens who are not entitled to full asylum pro-
ceedings under the Immigration and Nationality Act (“INA”),
including alien crew members, stowaways, and aliens who
have entered the country under the Visa Waiver Program. 8
C.F.R. § 208.2(c)(1). These classes of aliens may have been
given limited and temporary permission to enter the United
States, as is the case for crew members landing temporarily
in the United States and for visitors to the United States under
the Visa Waiver Program. However, these limitations mean
that these aliens may not challenge their removal, except that
they may apply for asylum. See, e.g., 8 U.S.C. § 1282(b)
(“[A]ny immigration officer may, in his discretion, if he
determines that an alien is not a bona fide crewman, or does
not intend to depart on the vessel or aircraft which brought
him . . . remove[ ] [the crewman] from the United States
. . . .”); 8 U.S.C. § 1187(b)(2) (“An alien may not be provided
a waiver under the [Visa Waiver Program] unless the alien
has waived any right . . . to contest, other than on the basis
of an application for asylum, any action for removal of the
alien.”).
“Asylum-only,” however, does not mean that the petitioner
is limited to asylum in the relief he seeks. 8 C.F.R.
§ 208.2(c)(3)(i). No, he may also seek withholding of removal
and protection under the CAT in the “asylum-only” proceed-
ing. Id.; 8 C.F.R. § 1240.1(a)(1)(iii).1 The limited scope of the
proceedings means that parties are prohibited from raising
“any other issues, including but not limited to issues of admis-
sibility, deportability, eligibility for waivers, and eligibility
1
The proceedings would more aptly be called “asylum and withholding
of removal and protection under the CAT-only.” See Restrepo v. Holder,
610 F.3d 962, 964 (7th Cir. 2010) (“the phrase [‘asylum-only’] is a misno-
mer” because the alien may also ask for withholding of removal).
NIAN v. HOLDER 7689
for any other form of relief.” 8 C.F.R. § 208.2(c)(3)(i). Since
the alien is considered removable—otherwise he would not be
in this proceeding—the IJ will not issue a final order of
removal; the IJ determines only whether the petitioner is enti-
tled to asylum, withholding of removal, or protection under
the CAT. Id. If the petitioner is not entitled to any of the lim-
ited relief specified, he is removable and there is no bar to his
removal. So understood, we proceed to consider Bao’s claims.
II. Petitioner’s factual claims; proceedings below.
Bao was a crew member aboard the Zhih Yung, a fishing
vessel seized by the Coast Guard near San Diego. The Coast
Guard found over 150 Chinese nationals on the ship and
arrested the crew members for alien smuggling. Bao agreed
to serve as a material witness in the U.S. government’s prose-
cution, and he signed a statement against the alien smugglers
—so-called “snakeheads.” He was listed as a government wit-
ness, but he did not testify in open court.
Bao filed for asylum, withholding of removal, and protec-
tion under the CAT. In his application, Bao cited two types
of persecution as the basis of his claims: he had been perse-
cuted for violating China’s one-child policy and feared further
persecution if he returned, and he feared persecution at the
hands of the snakeheads for having openly agreed to be a wit-
ness against them in the United States.
Bao’s application was dismissed by the IJ for lack of juris-
diction because Bao was an alien crew member, and alien
crew members must file “asylum-only” applications. The BIA
affirmed the IJ’s dismissal. The Department of Homeland
Security (“DHS”) subsequently brought the current “asylum-
only” proceedings under 8 C.F.R. § 208.2(c) by serving Bao
with a Form I-863. On June 4, 2004, the IJ denied Bao’s
applications for asylum, withholding of removal, and protec-
tion under the CAT. The BIA affirmed without opinion. Bao
petitioned for review in the Ninth Circuit. The Ninth Circuit
7690 NIAN v. HOLDER
granted DHS’s unopposed motion to remand to the BIA to
consider a letter from an Assistant United States Attorney.
The letter recommended that Bao be permitted to remain in
the United States after having given the government informa-
tion and agreeing to be listed as a government witness in the
prosecution of the snakeheads. The BIA again dismissed
Bao’s appeal, this time in a written decision. Bao timely peti-
tioned for review.
III. Jurisdiction to consider petitioner’s petition for
review of denial of relief in “asylum-only” proceed-
ings.
[1] Under 8 U.S.C. § 1252(a)(1), we have jurisdiction to
review a “final order of removal.” The “asylum-only” pro-
ceedings below were conducted pursuant to 8 C.F.R.
§ 208.2(c) because Bao entered the country as an alien crew
member. Thus, the IJ and BIA denied Bao’s claims for asy-
lum, withholding of removal, and protection under the CAT,
but did not issue a final order of removal. We therefore must
answer the question whether the BIA’s denial of asylum in
“asylum-only” proceedings is the equivalent of a final order
of removal such that we have jurisdiction under 8 U.S.C.
§ 1252(a)(1).2
[2] We have never addressed this issue in a published
opinion. The four circuits to have considered the question all
held that they had jurisdiction over “asylum-only” proceed-
ings even in the absence of a final order of removal. See
Restrepo v. Holder, 610 F.3d 962, 964 (7th Cir. 2010) (exer-
cising jurisdiction over alien crew member’s petition in
“asylum-only” proceedings); Mitondo v. Mukasey, 523 F.3d
784, 787 (7th Cir. 2008); Shehu v. Att’y Gen., 482 F.3d 652,
2
The parties submitted letter briefs on the issue and both agree that this
court has jurisdiction to review Bao’s petition. However, “we have the
obligation to confirm our jurisdiction sua sponte“ before reaching the mer-
its. Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 763 (9th Cir. 2007).
NIAN v. HOLDER 7691
656 (3d Cir. 2007); Kanacevic v. INS, 448 F.3d 129, 134-35
(2d Cir. 2006) Nreka v. Att’y Gen., 408 F.3d 1361, 1367 (11th
Cir. 2005). The Second, Third, Seventh and Eleventh Circuits
all concluded that jurisdiction lies over “asylum-only” pro-
ceedings because the BIA’s denial of relief is the “functional
equivalent” of a final order of removal. E.g., Kanacevic, 448
F.3d at 134.
[3] An alien crew member who lands in the United States
without authorization or whose authorization is revoked is not
entitled to a hearing and is statutorily required to be “removed
from the United States at the expense of the transportation
line which brought him.” 8 U.S.C. § 1282(b); see also 8
C.F.R. § 252.2(b) (an alien crew member whose landing per-
mit has expired may be “removed from the United States
without a hearing, except as provided in § 208.2(b)(1),” the
asylum-only statute); 8 U.S.C. § 1284(c). Thus, Bao is already
removable, pending only the result of his “asylum-only” pro-
ceedings. Once he is denied any relief, Bao can be removed
by “any immigration officer.” 8 U.S.C. § 1282(b).
As the Second Circuit stated in Kanacevic, “Although the
denial of asylum in [an ‘asylum-only’]3 case does not occur
in the context of removal proceedings, denial of the asylum
application is the functional equivalent of a removal order
. . . .” 448 F.3d at 134. The panel continued, “Were we to ele-
vate form over substance by holding that the disposition of
asylum-only proceedings does not function as a final order of
removal to confer jurisdiction, we would create uncertainty
over exactly what procedure [an ‘asylum-only’] applicant
could pursue in order to obtain review of his or her asylum
proceedings in the Courts of Appeals.” Id. at 135. See also
Mitondo, 523 F.3d at 787 (“an order that is proper only if the
3
Kanacevic considered the jurisdictional issue in the context of a Visa
Waiver Program applicant. 448 F.3d at 134. Visa Waiver Program appli-
cants are subject to the same “asylum-only” proceedings as alien crew
members. 8 C.F.R. § 208.2(c)(1)(iii).
7692 NIAN v. HOLDER
alien is removable implies an order of removal” (emphasis in
original)).
Further, we have stated in a different context that, in certain
circumstances, “the BIA’s order dismissing [an] appeal on the
question of asylum is necessarily a final order . . . [because]
the [BIA] considered and decided the merits of the appeal
before dismissing it.” Junming Li v. Holder, 656 F.3d 898,
904 (9th Cir. 2011) (exercising jurisdiction to review the
BIA’s denial of asylum where the BIA also remanded for
completion of background checks required before withholding
of removal could be granted).
[4] For the same reasons as expressed in the opinions of
our sister circuits, we hold that the denial of an alien crew
member’s petition for asylum and other relief in “asylum-
only” proceedings is the “functional equivalent” of a final
order of removal. Such an order constitutes a “final order of
removal” within the meaning of 8 U.S.C. § 1252(a)(1). Thus,
we have jurisdiction to review Bao’s petition from the BIA’s
denial of asylum, withholding of removal, and protection
under the CAT.
IV. Merits of petitioner’s claims.
For the reasons stated in a separate memorandum disposi-
tion filed concurrently with this opinion, we deny Bao’s peti-
tion for review.
PETITION DENIED.