Sama Abdisalan v. Eric Holder, Jr. ( 2013 )

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, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 7, 2012—Seattle, Washington
Filed September 6, 2013
2 ABDISALAN V. HOLDER
Before: Richard C. Tallman and Paul J. Watford, Circuit
Judges, and Michael W. Fitzgerald, District Judge.*
Opinion by Judge Tallman;
Dissent by Judge Watford
SUMMARY**
Immigration
The panel dismissed as untimely two petitions seeking
review of the Board of Immigration Appeals’ decision
denying an application for asylum.
The Board denied petitioner’s asylum application because
she failed to file it within one year of arrival or establish
extraordinary circumstances to excuse the untimely filing.
Because the Board had also granted withholding of removal,
it remanded to the IJ for the completion of background
checks, and following completion of those checks, petitioner
filed a second appeal with the Board challenging the
underlying denial of asylum. The Board dismissed the
second appeal, construing it as an untimely motion to
reconsider, and again remanded to the IJ for updated
background checks. Petitioner filed petitions for review in
this court following the denial of the motion to reconsider and
*
The Honorable Michael W. Fitzgerald, United States District Judge for
the Central District of California, sitting by designation.
**
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
the IJ’s last background checks, but did not file a petition
after the Board’s initial decision denying her asylum
application.
The panel held that it lacked jurisdiction to review the
Board’s underlying denial of asylum, the only issue raised in
both petitions for review, because petitioner failed to file a
timely petition for review of that decision.
Dissenting, Judge Watford wrote that the Board’s initial
decision denying asylum was not a final order, because
proceedings were still ongoing before the IJ, and that the IJ’s
decision granting withholding of removal following
completion of the last round of background checks was the
final order that triggered the running of the clock to
determine timeliness of the petition for review. Judge
Watford would hold that petitioner’s petitions for review
were timely.
COUNSEL
Hilary Han (argued) and Vicky Dobrin, Dobrin & Han, PC,
Seattle, Washington, for Petitioner.
Linda Cheng (argued), Trial Attorney, and Susan K. Houser,
Senior Litigation Counsel, United States Department of
Justice, Office of Immigration Litigation, Washington, D.C.,
for Respondent.
4 ABDISALAN V. HOLDER
OPINION
TALLMAN, Circuit Judge:
Sama Abdiaziz Abdisalan, a native and citizen of
Somalia, petitions for review of the Board of Immigration
Appeals’ (BIA or Board) decision dismissing her asylum
claim for lack of timeliness. In its original decision, the BIA
determined that Abdisalan neither satisfied her burden that
she applied for asylum within one year of arrival, nor
established extraordinary circumstances sufficient to excuse
untimely filing of her application. However, the BIA
remanded the case to the IJ to complete updated background
checks related to the IJ’s unchallenged grant of withholding
of removal. Following successful completion of another
round of background checks, Abdisalan filed a second appeal
to the BIA seeking review of the denial of her asylum claim.
The BIA dismissed that appeal as an untimely motion to
reconsider, and again remanded the case for a third set of
updated background checks because her clearance had once
more expired.
Abdisalan has now filed two petitions for review before
us: (1) from the BIA’s second decision denying the motion to
reconsider, and (2) following the IJ’s confirmation of
successful completion of the third set of background checks.
Despite their untimeliness, the sole focus of both petitions is
to challenge the BIA’s original decision dismissing her
asylum claim.
Because Abdisalan waited nearly two years to petition for
review of the BIA’s original November 25, 2008, dismissal
of her asylum claim—exceeding the thirty-day deadline to
ABDISALAN V. HOLDER 5
file an appeal in our Court—we lack jurisdiction to review
this case now. Accordingly, we dismiss her petition.1
I
Abdisalan filed an application for asylum on March 28,
2002. The IJ held a merits hearing on July 9, 2007, to hear
her claims for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). Abdisalan had
an opportunity to present her case through witness testimony,
submitted background materials on country conditions, and
declarations. In an oral decision announced August 3, 2007,
while Abdisalan’s background checks were still current, the
IJ granted withholding of removal to Somalia, but denied
asylum as time-barred, and found she had not shown a clear
probability of torture for protection under CAT. On appeal
to the BIA, Abdisalan only challenged the denial of her
asylum claim. The Board dismissed the appeal finding
Abdisalan “statutorily ineligible for asylum” on November
25, 2008. In two separate line entries, the BIA dismissed the
asylum appeal and remanded the “record” to the IJ to
complete updated background checks.2 Abdisalan chose not
1
Despite the dissent’s contention and the sympathetic facts of this case,
our denial of review is not unjust. Because she cleared the background
checks on every occasion, the IJ granted withholding of removal and
Abdisalan will not be removed to Somalia. However, as we lack
jurisdiction because of her untimeliness, the law restricts our ability to
review the merits of her underlying asylum claim.
2
Abdisalan’s original background clearance supporting the IJ’s grant of
withholding of removal had expired during the pendency of her appeal
before the BIA. The Department of Homeland Security (DHS) has never
challenged that grant.
6 ABDISALAN V. HOLDER
to file a petition for review before us of the BIA’s decision at
that time.
On June 18, 2009, the IJ once again determined that the
background checks were satisfactory, confirming Abdisalan’s
continued entitlement to withholding of removal. Abdisalan
filed a second appeal to the BIA, and on September 24, 2010,
the Board found that “any attempt to use this appeal to reach
issues resolved in [the] November 25, 2008, order is, at
bottom, an untimely motion to reconsider that will be
denied.” The BIA “summarily dismissed” the appeal finding
that it did “not challenge an issue of fact or law material to
the Immigration Judge’s June 18, 2009, order.” In
conclusion, the BIA again remanded the case to the IJ to enter
the same relief granted previously on August 3, 2007, when
“background checks and security investigations were
complete and current.” Abdisalan filed a petition for review
of this BIA decision with us on October 13, 2010.
On March 28, 2011, her background checks cleared a
third time, and the IJ reentered the same determination he
originally made on August 3, 2007, granting continued
entitlement to withholding of removal. Abdisalan bypassed
any attempt to appeal this decision to the BIA and instead
filed a second petition for review directly with us on April 21,
2011. The two petitions for review were later consolidated
here.
II
We have jurisdiction to review final orders of removal
pursuant to 8 U.S.C. § 1252(a)(1). “We review de novo the
BIA’s interpretation of purely legal questions.” Zheng v.
Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003).
ABDISALAN V. HOLDER 7
III
This case turns on when an order of removal is considered
“final” for purposes of judicial review and revisits our
precedent on how to treat a mixed decision that grants one
form of immigration relief while denying another.
Abdisalan’s appeals to the BIA and petitions for review
before us focus only on the IJ’s denial of asylum. The BIA
upheld that decision on November 25, 2008, and no petition
for review was filed within thirty days from the Board’s
decision as the law requires. See 8 U.S.C. § 1252(b)(1).
Therefore, the BIA’s resolution of that claim necessarily
became final. See 8 U.S.C. § 1101(a)(47)(B)(ii). Abdisalan’s
failure to file a timely petition for review of the BIA’s
decision denying her claim for asylum precludes our
jurisdiction now.
A
In her original application, Abdisalan sought asylum,
withholding of removal, and protection under CAT. See
8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 1208.16. The
merits hearing to adjudicate these claims, held July 9, 2007,
provided Abdisalan “a full and fair hearing of h[er] claims
and a reasonable opportunity to present evidence on h[er]
behalf.” Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir.
2000); see also 8 U.S.C. § 1229a(b)(4). On appeal, the BIA
found Abdisalan statutorily ineligible for asylum.3
A petition for review must be filed within thirty days of
the final order of removal. 8 U.S.C. § 1252(b)(1). An order
becomes final upon the earlier of the BIA’s affirmance of the
3
Abdisalan did not challenge the IJ’s denial of protection under CAT.
8 ABDISALAN V. HOLDER
IJ’s order or the expiration of the period in which an alien
may seek review of the IJ’s order. 8 U.S.C. § 1101(a)(47)(B).
“This time limit is mandatory and jurisdictional.” Yepremyan
v. Holder, 614 F.3d 1042, 1043 (9th Cir. 2010) (per curiam)
(internal quotation marks removed). When granting relief
pursuant to 8 C.F.R. § 1003.47(b), such as withholding of
removal, the BIA “shall not issue a decision affirming . . .
relief or protection from removal” if the results of the prior
background checks “are no longer current under the standards
established by DHS and must be updated.” 8 C.F.R.
§ 1003.1(d)(6)(i)(B).
The dissent attempts to conflate the prior decisions
regarding Abdisalan’s claims, but the granting of withholding
of removal and related remand to update background checks
is an issue distinct and apart from the denial of her asylum
claim. Each comes with its own finality determination,
timing, and statutory context. Abdisalan never appealed the
IJ’s grant of withholding of removal, nor the BIA’s remand
for updated background checks because that relief was
awarded in her favor. Accordingly, we may not review that
issue here. Our jurisdiction to review the asylum claim
expired long ago when Abdisalan failed to file a petition for
review within thirty days of the BIA’s decision affirming the
IJ’s adverse determination. Failure to seek review of that
final order of removal in a timely manner prevents our review
on appeal.
The dissent looks to the Executive Office for Immigration
Review’s guidance regarding remands for background
checks, but that guidance focuses on the much simpler
question of the agency’s obligation to have current
background checks prior to confirming the grant of relief
from removal, codified at 8 C.F.R. § 1003.1(d)(6).
ABDISALAN V. HOLDER 9
Background and Security Investigations in Proceedings
Before Immigration Judges and the Board of Immigration
Appeals, 70 Fed. Reg. 4743, 4746–49 (Jan. 31, 2005). It does
not speak to the specific scenario of a mixed decision, such as
Abdisalan’s, in which one form of relief is granted while
another is denied. This is because “the Board is not required
to remand or hold a case under § 1003.1(d)(6) if the Board
decides to dismiss the respondent’s appeal or deny the relief
sought.” Id. at 4748. This guidance is simply inapplicable
and does not speak to the finality of Abdisalan’s asylum
claim, the dispositive issue before us now.
Abdisalan’s inconsistent arguments regarding the finality
of the asylum claim highlight her failure to timely appeal. In
her opening brief for Case No. 11-71124, she first argued that
the BIA’s September 24, 2010, decision “constitute[d] a ‘final
order of removal’ for purposes of judicial review . . . that was
unaltered by its remand to the IJ” because “nothing [was]
currently pending before the Board.” But that was true at the
time of the Board’s original November 25, 2008,
determination, which was, and remains, the final order of
removal. In supplemental briefing to us, which we ordered
following oral argument in the consolidated appeals,
Abdisalan switched position and now argues that “only one
order—the IJ’s ultimate order of March 28, 2011—is strictly
a ‘final order of removal.’”4 Analysis of our current
precedent forecloses both of the arguments advanced by the
4
Abdisalan petitioned for review of both the September 24, 2010,
decision by the BIA and the March 28, 2011, decision by the IJ. Since the
petitions were consolidated for our review, and neither appeal establishes
jurisdiction over the defaulted asylum claim, we do not need to consider
whether Abdisalan may appeal to us directly from an IJ’s decision. See
Carlos-Blaza v. Holder, 611 F.3d 583, 587 n.4 (9th Cir. 2010).
10 ABDISALAN V. HOLDER
Petitioner. The BIA’s 2008 decision was final and started the
thirty-day clock to petition for review.
Our dissenting colleague chooses to ignore the procedural
posture of this case and the fact that our conclusion is
consistent with the BIA’s treatment of it. By considering
Abdisalan’s subsequent appeal as an untimely motion to
reconsider, the BIA, too, understood that the adjudication of
her asylum claim was final in 2008.
To take our colleague’s analysis to its logical conclusion,
there might never be finality based on an endless cycle of
remands necessitated by updating expired background
clearances. Here, they have had to be redone on three
separate occasions. There could be no end to this process
under the dissent’s view of the law. The appropriate
interpretation of our precedent is that a petitioner must
challenge the substance of the BIA’s decision on a timely
basis. Therefore, we lack jurisdiction to review her asylum
claim now.
B
Li v. Holder, 656 F.3d 898, 899, 905 (9th Cir. 2011), dealt
with similar questions of finality of a removal order and
jurisdiction, however Li timely petitioned for review of the
BIA’s decision, establishing our jurisdiction. In Li, the IJ
granted withholding of removal or alternative protection
under CAT, but denied asylum. Id. at 900. As in Abdisalan’s
case, the BIA affirmed the IJ’s denial of asylum—the only
question on appeal—but remanded Li’s case to await current
background checks pursuant to 8 C.F.R. § 1003.1(d)(6). Id.
at 899. Despite the remand, Li filed a timely petition for
review within 30 days of the BIA’s denial of asylum. Id.ABDISALAN V. HOLDER 11
We held that “where the BIA denies relief and remands
pursuant to § 1003.1(d)(6) for background checks required
for alternative relief, we have jurisdiction to consider an
appeal of the final order denying relief.” Id. at 904;
Annachamy v. Holder, __ F.3d __, No. 07–70336, 2013 WL
44056787, at *2 (9th Cir. August 19, 2013) (quoting the same
language from Li). Li’s order of removal was final because
the “BIA decided all the matters before it,” and “there was
nothing pending before the Board.” Li, 656 F.3d at 904. The
IJ had already held the merits hearing and determined that Li
was eligible for withholding of removal or alternative
protection under CAT, but ineligible for asylum. Id. at 900.
The only outstanding issue for the IJ to review upon
remand was the “procedural requirement” of successful
completion of background checks pursuant to 8 C.F.R.
§ 1003.1(d)(6). See 70 Fed. Reg. at 4746 (describing remand
for background checks as a procedural requirement). The
limited right to appeal following remand is contingent on
whether the background checks reveal new evidence. Id. at
4748; Li, 656 F.3d at 904. And, if new evidence raises a legal
or factual issue, review of that evidence is necessarily limited
to its potential impact on the grant of relief, because remand
is not required for denial of relief. 8 C.F.R.
§§ 1003.1(d)(6)(iv), 1003.47(h); Li, 656 F.3d at 902. Any
new evidence would not open up the case for reconsideration
of other separate and distinct substantive claims that had
previously been denied.5
5
This limited scope of review following a remand for background
checks has previously been recognized by the BIA. In In re Fabricio
Alcantara-Perez, 23 I. & N. Dec. 882, 882 (B.I.A. 2006), while on remand
for a background check required for adjustment of status, authorities
arrested Alcantara-Perez for domestic violence. The BIA held that the IJ
12 ABDISALAN V. HOLDER
In this case, Abdisalan’s unsuccessful asylum claim was
necessarily final at the time of the BIA’s 2008 remand. The
only portion of her case in question at the time of remand
related to confirming the agency’s grant of withholding of
removal, a determination she has never challenged. The same
reasons that established our jurisdiction to review Li’s asylum
claim at the time of remand now foreclose our ability to
review Abdisalan’s asylum claim. Rather than timely
petitioning for review of the BIA’s November 25, 2008, final
order of removal, she waited until after completion of the
background checks. Her delay unfortunately deprives us of
jurisdiction over her asylum claim on appeal.
Go v. Holder, 640 F.3d 1047 (9th Cir. 2011), also
considered the question of jurisdiction and the finality of a
removal order. There, the BIA affirmed the denial of asylum
and withholding of removal in 2005, but remanded the IJ’s
denial of CAT protection for further proceedings. Id. at 1050.
After the BIA issued a second order denying CAT protection
in 2006, we found jurisdiction to review the merits of both the
earlier 2005 decision and the 2006 decision. Id. at 1051.
Although at first blush our jurisdiction over both
decisions in Go might appear inconsistent with Li,
jurisdiction is a fact-intensive question determined
individually for each case on petition for review. “Go held
that there was no final removal order until all forms of relief
were denied,” whereas, “Li held that the final removal order
had “discretion to determine whether to conduct an additional hearing to
consider the new evidence before entering an order granting or denying
relief.” Id. at 882. However, the Board observed that the regulations did
not provide the parties “an opportunity to relitigate issues that were
previously considered and decided.” Id. at 885 (emphasis added).
ABDISALAN V. HOLDER 13
was not contingent on the denial of all forms of relief.”6
Ortiz-Alfaro v. Holder, 694 F.3d 955, 959 (9th Cir. 2012).
However, the Li decision distinguished Go on three grounds
to explain the difference in our jurisdictional analysis, and
each equally apply to Abdisalan’s case. Li, 656 F.3d at903–04.
Most importantly, in Li, as well as in this case, the BIA
had already decided all “the matters before it” prior to
remand. Id. at 904. The record had been fully developed,
and the BIA had considered all of the petitioner’s arguments.
Id. at 899–900. By contrast, in Go, the BIA found that “the
IJ may not have considered various country reports” and
expressed concern that testimony was “improperly excluded.”
Go, 640 F.3d at 1050–51. The IJ accordingly held additional
proceedings to further develop the record. Id. at 1051. If Go
had petitioned for review of the BIA decision at the time of
remand, as Li did, it would have been premature because
Go’s CAT claim was still under consideration, and therefore
he was still challenging a pending substantive issue. Thus, in
Go, it was only after the BIA denied the CAT claim that a
final order of removal existed to serve as the basis for our
jurisdiction over both of the BIA’s decisions.
In contrast, this case is equivalent to Li because no
substantive challenges remained at the time of the BIA’s
remand. The BIA specifically noted that “[i]n light of the
Immigration Judge’s unappealed grant of withholding of
6
Although we noted that Li’s background checks concluded prior to
assuming jurisdiction over the case, the completion of Li’s background
checks was not a necessary requirement to establish our jurisdiction. Li,
656 F.3d at 900; Ortiz-Alfaro, 694 F.3d at 959. It was only further
evidence of the finality of his removal order.
14 ABDISALAN V. HOLDER
removal” it would remand the “record,” but the BIA made no
reference to remanding the entire case. The BIA found
Abdisalan statutorily ineligible for asylum and clarified that
she did not appeal the denial of protection under CAT. The
only outstanding issue upon remand was whether the
background checks would clear again to support continued
withholding of removal. The BIA highlighted this point
when it dismissed Abdisalan’s second appeal. The Board
concluded Abdisalan’s “sole purpose” on appeal was to
challenge the November 25, 2008, asylum decision, which
was not an “issue of fact or law material” to the IJ’s order on
remand. Consequently, Abdisalan’s asylum claim would
have been ripe for our review in 2008, but is now foreclosed.
Li points to two additional differences to support a finding
that a final order of removal existed; differences that were not
present in Go, but which are present in Abdisalan’s case.
First, Go contested removability, while Li and Abdisalan
conceded removability. Li, 656 F.3d at 903. “We have
recognized that where removability is conceded, a final order
that the petitioner is removable necessarily exists[,] and we
have jurisdiction.” Id. Second, the IJ in Go originally denied
all forms of relief, whereas the IJ granted withholding of
removal for Li and Abdisalan, and the BIA upheld that
decision. Id. “We have held that the granting of relief
implies that a final determination of removability has been
made.” Id. (citing Lolong v. Gonzales, 484 F.3d 1173, 1177
(9th Cir. 2007)). Therefore, no tension exists between our
holdings in Li and Go. Rather, it was the distinct facts of
each case that determined whether or not a final order of
removal existed, and consequently whether we had
jurisdiction to review the claim.
ABDISALAN V. HOLDER 15
In Ortiz-Alfaro, like Go, we determined that we lacked
jurisdiction to review the petitioner’s claim because he still
had an unresolved possible avenue for relief, and no final
order of removal existed. 694 F.3d at 959–60. Ortiz-Alfaro
was charged with illegal reentry under 8 C.F.R. § 241.8(a).
Id. at 956. In illegal reentry cases, the alien may contest the
reinstatement of the prior order of removal by asserting “a
fear of returning to the country designated.” Id. The case is
then referred to an asylum officer. Id. If the asylum officer
determines the alien has not established a reasonable fear, the
alien may appeal that determination to an IJ. Id. at 956–57.
However, in Ortiz-Alfaro, the “[r]eview of the asylum
officer’s determination by an IJ ha[d] yet to take place.” Id.
at 957. Unlike here, Ortiz-Alfaro’s withholding of removal
claim remained undeveloped at the time he filed his petition
for review. Id. The IJ had not reviewed the reasonable fear
determination, developed the record for that claim, or denied
withholding of removal. Id. Accordingly, we found that we
lacked jurisdiction because no final order of removal existed,
as substantive issues remained. Id. at 959.
Our analysis in these cases also coincides with the BIA’s
decision in In re M-D-, 24 I. & N. Dec. 138, 141–42 (B.I.A.
2007). The BIA there held that on remand for background
checks the IJ had “authority to consider new evidence if it
would support a motion to reopen the proceedings,” but that
holding did not allow the petitioner to “use the remand as a
venue to challenge orders denying relief that the BIA ha[d]
affirmed.” Li, 656 F.3d at 904 n.1. “To the contrary, the
Board explicitly instruct[ed] that on remand the IJ may not
reconsider the BIA’s prior decisions.” Id.; M-D-, 24 I. & N.
Dec. at 138. Although the petitioner could file a motion to
reopen for possible new forms of relief, that action did not
16 ABDISALAN V. HOLDER
alter the already existing final order of removal. Li, 656 F.3d
at 904 n.1.
IV
Our dissenting colleague invokes the words of Felix
Frankfurter to suggest that in the name of justice, we should
ignore the law for this case. But the character of Sir Thomas
More in Robert Bolt’s A Man for All Seasons answers the
dissent’s call as Chancellor More describes his resistance to
an entreaty to swear an oath of allegiance to King Henry VIII
and approve an unlawful act. Act 1, p. 66 (Random House
5th Printing 1962). “This country’s planted thick with laws
from coast to coast—man’s laws, not God’s—and if you cut
them down . . . d’you really think you could stand upright to
the winds that would blow then?” Id. The law cannot be bent
to accommodate every desired exception merely by invoking
the word “justice.”
Our precedent is consistent. Petitioners must file their
petitions for review within thirty days of the BIA’s
determination of their applicable claims for asylum,
withholding of removal, and protection under CAT. Judicial
economy and a preference for finality underpin this
requirement. If these steps have been followed, a final order
of removal exists, and we have jurisdiction. “Where the BIA
denies relief and remands pursuant to § 1003.1(d)(6) for
background checks required for alternative relief,” and no
other substantive issues affecting the merits are pending,
jurisdiction exists at that time to consider a petition for
review of the final order denying relief. Li, 656 F.3d at 904.
In this case, Abdisalan had “a full and fair hearing of h[er]
claims and a reasonable opportunity to present evidence on
h[er] behalf.” Colmenar, 210 F.3d at 971. A final order of
ABDISALAN V. HOLDER 17
removal existed regarding the asylum claim following the
BIA’s decision on November 25, 2008, triggering the thirty-
day rule to petition for judicial review. She does not get a
second or third bite at that apple now. Accordingly, her 2010
and 2011 petitions before us are untimely.
Petitions for review DISMISSED for lack of jurisdiction.
WATFORD, Circuit Judge, dissenting:
I
Everyone appears to agree that petitioner Sama Abdisalan
has a meritorious asylum claim. It would be hard to conclude
otherwise, given what she has been through: enduring type-III
female genital mutilation when she was three or four years
old; witnessing the execution-style murder of her aunt and
uncle by members of a rival clan at the outset of Somalia’s
civil war when she was twelve or thirteen; and being held
captive afterward by those same rival clan members for two
or three weeks, an ordeal during which she was repeatedly
raped and subjected to constant verbal and physical abuse.
Based on these facts, the immigration judge (IJ) granted
Ms. Abdisalan withholding of removal, which means she
necessarily established the well-founded fear of persecution
required to qualify for asylum relief. See Khunaverdiants v.
Mukasey, 548 F.3d 760, 767 (9th Cir. 2008). But the IJ and
the Board of Immigration Appeals (BIA) denied Ms.
Abdisalan’s asylum claim on the ground that her application
was untimely. That ruling is unquestionably wrong; no one
disputes that Ms. Abdisalan arrived in the United States in
18 ABDISALAN V. HOLDER
either February or March of 2002, and under either scenario
her March 28, 2002, application for asylum was timely. See
id. at 765. We would ordinarily have jurisdiction to correct
this error, since it turns on “application of law to undisputed
facts.” Lin v. Holder, 610 F.3d 1093, 1096 (9th Cir. 2010).
The majority holds that we lack jurisdiction to review the
BIA’s erroneous ruling because the BIA’s November 2008
order denying Ms. Abdisalan’s asylum claim was a “final
order of removal,” which triggered the mandatory 30-day
deadline for seeking review in our court. 8 U.S.C.
§ 1252(b)(1). In that same order, however, the BIA upheld
Ms. Abdisalan’s claim for withholding of removal and
remanded her case under 8 C.F.R. § 1003.1(d)(6) for
completion of the background checks required under 8 C.F.R.
§ 1003.47. Ms. Abdisalan had no reason to believe in
November 2008 that she could petition our court for review
of the BIA’s order. The agency had taken the position—as it
continues to do today—that orders in which it remands for
completion of background checks are not final orders because
administrative proceedings remain ongoing. See In re M-D-,
24 I. & N. Dec. 138, 141–42 (BIA 2007). The majority
concludes that Ms. Abdisalan forfeited her right to obtain
judicial review based primarily on a case—Li v. Holder,
656 F.3d 898 (9th Cir. 2011)—not decided until almost three
years after the deadline for seeking review of the November
2008 order had expired. Even if we ignore the unfairness of
applying Li retroactively to Ms. Abdisalan, and simply
analyze the majority’s holding on its own terms, that holding
cannot be squared with the language of the controlling statute,
the regulations governing remand orders of the sort at issue
here, or the BIA’s own understanding of the finality of its
orders.
ABDISALAN V. HOLDER 19
The best place to start is with the language of the
controlling statute, which defines when an order of removal
becomes “final.” See 8 U.S.C. § 1101(a)(47). (The statute
defines when an “order of deportation” becomes final, but it
applies to removal orders as well. Singh v. Gonzales,
499 F.3d 969, 979 (9th Cir. 2007).) Section 1101(a)(47)
defines an “order of deportation” as an order by an IJ
“concluding that the alien is deportable or ordering
deportation.” 8 U.S.C. § 1101(a)(47)(A). It then states that
such an order “shall become final upon the earlier of” two
events: (1) “a determination by the Board of Immigration
Appeals affirming such order,” or (2) “the expiration of the
period in which the alien is permitted to seek review of such
order by the Board of Immigration Appeals.” 8 U.S.C.
§ 1101(a)(47)(B).
Determining finality under this definition is easy when the
IJ orders an alien deported (or removed) and the BIA then
affirms the order. The language of § 1101(a)(47) is framed
with that scenario foremost in mind. But what about the
scenario we face in this case where, instead of ordering the
alien removed, the IJ grants relief from removal on one
ground, denies relief from removal on other grounds, and the
BIA then upholds that order? Although the statutory
language does not cover this scenario as neatly as the first, I
think the most natural reading is that the IJ’s order becomes
final when the BIA issues a “determination . . . affirming such
order.” 8 U.S.C. § 1101(a)(47)(B)(i). If the BIA affirms the
IJ’s order, thereby ending administrative proceedings, that is
the logical point at which the right to judicial review is
triggered.
Does the BIA’s November 2008 decision constitute a
determination “affirming” the IJ’s order denying Ms.
20 ABDISALAN V. HOLDER
Abdisalan asylum but granting her withholding of removal?
No. The answer is clear because, under the regulations
governing this scenario, the BIA could not issue a decision
affirming the IJ’s grant of withholding of removal in
November 2008. At that point, the required background
checks had not been completed, and Ms. Abdisalan was
barred from receiving withholding of removal until that
occurred. See 8 C.F.R. § 1003.47(b)(7), (g). As the
regulations make clear, when the completion of background
checks is necessary, the BIA “shall not issue a decision
affirming” any relief from removal “that requires completion
of identity, law enforcement, or security investigations or
examinations.” 8 C.F.R. § 1003.1(d)(6)(i). Instead, the
BIA must either remand the case to the IJ for completion of
the required background checks, as the BIA did here, or issue
an order stating that the appeal will be placed on hold until
those background checks are completed. 8 C.F.R.
§ 1003.1(d)(6)(ii).
Construed in light of 8 U.S.C. § 1101(a)(47), this
regulation forecloses any contention that the BIA’s
November 2008 decision constituted a “final order of
removal.” The BIA did not issue a determination “affirming”
the IJ’s order of removal for the simple reason that it lacked
the authority to do so. But if there were any doubt about the
decision’s lack of finality, we have definitive guidance on
that score from the agency that issued the regulations in
question. The Executive Office for Immigration Review has
unambiguously stated that when the BIA remands the case to
the IJ for completion of background checks under 8 C.F.R.
§ 1003.1(d)(6), the BIA’s order is not final:
In any case that is remanded to the
immigration judge pursuant to § 1003.1(d)(6),
ABDISALAN V. HOLDER 21
the Board’s order will be an order remanding
the case and not a final decision, in order to
allow DHS to complete or update the identity,
law enforcement, and security investigations
or examinations of the respondent(s). The
immigration judge will then consider the
results of the completed or updated
investigations before issuing a decision
granting or denying the relief sought.
Background and Security Investigations in Proceedings
Before Immigration Judges and the Board of Immigration
Appeals, 70 Fed. Reg. 4743, 4748 (Jan. 31, 2005) (emphasis
added).
The majority describes remands under 8 C.F.R.
§ 1003.1(d)(6) as a procedural requirement during which
nothing affecting the finality of the removal order may occur.
Maj. op. at 11. But that is contrary to the BIA’s own
characterization of its procedures. The BIA has held that
when it remands a case to the IJ for completion of the
required background checks, “no final order exists” and the
IJ “reacquires jurisdiction over the proceedings.” In re M-D-,
24 I. & N. Dec. at 141; see also In re Alcantara-Perez,
23 I. & N. Dec. 882, 883–84 (BIA 2006). Because the
remand is “treated as effective for all purposes,” the IJ may
receive and consider additional evidence, without regard to
the procedural limitations on filing a motion to reopen. In re
M-D-, 24 I. & N. Dec. at 141–42 & n.3. If the new evidence
“is material, was not previously available, and could not have
been discovered or presented at the former hearing,” the IJ
may rely on it to reconsider forms of relief previously denied
and to consider additional forms of relief not previously
raised. Id. at 141–42. And, if the background checks reveal
22 ABDISALAN V. HOLDER
negative information, the IJ can of course deny forms of relief
previously granted. Thus, whether an alien will be allowed
to remain in the United States depends entirely on what the IJ
decides on remand after receiving the results of the
background checks and considering any new evidence
submitted.
We owe deference to the agency’s views on finality
unless they conflict with the plain language of the controlling
statute. Cf. Ocampo v. Holder, 629 F.3d 923, 926–27 (9th
Cir. 2010). No such conflict exists here. In fact, the agency’s
view—that orders remanding for completion of background
checks are not “final”—is fully consistent with the ordinary
meaning of that word. “Final” in this context generally 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 but
not precluding an appeal.” WEBSTER’S THIRD NEW INT’L
DICTIONARY 851 (2002). That is the way “final agency
action” has been construed under the Administrative
Procedure Act, where finality (and thus the right to judicial
review) is pegged to issuance of an order that “marks the
consummation of the agency’s decisionmaking process.”
Sackett v. EPA, 132 S. Ct. 1367, 1372 (2012) (internal
quotation marks omitted). As discussed above, when the BIA
remands for completion of background checks, administrative
proceedings remain ongoing and the agency’s
decisionmaking process is by no means consummated.
In light of the controlling statutory text and regulations,
as well as the agency’s sensible position on the non-finality
of the remand orders at issue, this should be an easy case to
resolve. We should align ourselves with the Third Circuit
and hold that the BIA’s November 2008 order remanding the
ABDISALAN V. HOLDER 23
case for completion of background checks was not a final
order of removal. See Vakker v. Att’y Gen., 519 F.3d 143,
147 (3d Cir. 2008). The only final order was the IJ’s March
2011 order granting Ms. Abdisalan withholding of removal
following completion of the required background checks on
remand. Since Ms. Abdisalan had already exhausted all
administrative remedies available before the BIA, there was
no need for her to make a return trip to that body. See
8 U.S.C. § 1252(d)(1); Carlos-Blaza v. Holder, 611 F.3d 583,
587 & n.4 (9th Cir. 2010) (exercising jurisdiction over direct
petition for review from IJ’s removal order). The March
2011 order therefore became final upon expiration of the
period in which Ms. Abdisalan was permitted to seek review
by the BIA. See 8 U.S.C. § 1101(a)(47)(B)(ii). Ms.
Abdisalan filed a timely petition for review in our court from
the March 2011 order, and we have jurisdiction to address all
properly exhausted issues subsumed within that order,
including the denial of her asylum claim. See 8 U.S.C.
§ 1252(b)(9); Go v. Holder, 640 F.3d 1047, 1051–52 (9th Cir.
2011).
II
The majority concludes that the analysis sketched out
above is foreclosed by our decision in Li v. Holder, 656 F.3d
898 (9th Cir. 2011). I might have agreed had our court not
subsequently limited Li to its facts in Ortiz-Alfaro v. Holder,
694 F.3d 955 (9th Cir. 2012).
In Li, the BIA upheld an IJ’s decision denying the
petitioner asylum but granting withholding of removal and
relief under the Convention Against Torture (CAT). As in
this case, the BIA remanded under 8 C.F.R. § 1003.1(d)(6)
for completion of the required background checks. Li,
24 ABDISALAN V. HOLDER
656 F.3d at 899. We acknowledged that “[t]he BIA’s order
remanding the case is not a final order.” Id. at 902. But we
nonetheless held that we had jurisdiction to review the
portion of the order that denied Li’s asylum claim, since that
claim was not the subject of the remand and there was
nothing left for the BIA to consider with respect to that claim.
Id. at 904.1
In Ortiz-Alfaro, 694 F.3d at 959, we noted that Li’s
holding is in considerable tension with Go v. Holder,
640 F.3d 1047 (9th Cir. 2011). In Go, the BIA upheld the IJ’s
denial of asylum and withholding of removal in 2005, but
remanded for consideration of Go’s CAT claim. On remand,
the IJ rejected Go’s CAT claim and the BIA affirmed that
ruling in 2006. We held that the BIA’s 2005 decision was not
a final order of removal. Id. at 1051. To be sure, the 2005
decision was “final” with respect to Go’s asylum and
withholding of removal claims; as in Li, there was nothing
left for the BIA to consider with respect to those claims, and
they were not the subject of the remand. But we held that no
final order of removal existed at that point because
administrative proceedings regarding the CAT claim were
ongoing. Id. Go’s order of removal did not become final
1
The court justified this holding, following the Seventh Circuit’s lead
in Viracacha v. Mukasey, 518 F.3d 511, 513 (7th Cir. 2008), based on the
mistaken assumption that a petitioner whose background checks did not
reveal any new information could not appeal the IJ’s final order on
remand. Li, 656 F.3d at 902, 904. That assumption was mistaken because
a petitioner in those circumstances, while precluded from appealing again
to the BIA, could seek review in our court by directly petitioning for
review of the IJ’s order, which would encompass all issues decided earlier
by the BIA. See 8 U.S.C. § 1252(b)(9); Carlos-Blaza, 611 F.3d at 587 &
n.4; Vakker, 519 F.3d at 148.
ABDISALAN V. HOLDER 25
until 2006, the point at which the BIA had rejected all of his
claims for relief. Id. at 1052.
As we put it in Ortiz-Alfaro, “Go appears to be at odds
with Li because Go held that there was no final removal order
until all forms of relief were denied while Li held that the
final removal order was not contingent on the denial of all
forms of relief.” Ortiz-Alfaro, 694 F.3d at 959. We resolved
that tension by limiting Li to its facts. We noted that in Li, by
the time this court exercised jurisdiction to review Li’s
claims, “all administrative proceedings had concluded”—the
Department of Homeland Security had completed the
required background checks and the IJ on remand had entered
a final order granting Li withholding of removal. Id. We
relied on that limitation of Li in Ortiz-Alfaro, where we held
that a reinstated removal order was not final because
administrative proceedings regarding Ortiz’s eligibility for
withholding of removal were ongoing. Id. at 958–59. Even
though Ortiz sought to challenge the validity of the
reinstatement order, which was not at issue in the ongoing
administrative proceedings, we held that we lacked
jurisdiction “[a]s long as administrative proceedings are
ongoing in Ortiz’s case.” Id. at 959.
That should likewise be our conclusion here. The BIA’s
November 2008 remand order was not a final order of
removal because administrative proceedings were ongoing in
Ms. Abdisalan’s case. The majority’s notion that finality can
be analyzed on a claim-by-claim basis—with the ruling on
Ms. Abdisalan’s asylum claim being treated as final in 2008
while administrative proceedings regarding her withholding
of removal claim were ongoing—does not survive Ortiz-
Alfaro. That is no great loss. As Li itself acknowledged,
analyzing finality claim by claim would breed piecemeal
26 ABDISALAN V. HOLDER
litigation, requiring separate petitions for review from the
“denials of relief that flow from the results of background
checks.” Li, 656 F.3d at 904. In Li, that would have meant
one petition to review the denial of the asylum claim and, had
the background checks resulted in a denial of withholding of
removal and CAT relief, a second petition to review those
claims. Contrary to the majority’s suggestion, see Maj. op. at
16, that mode of analysis does nothing to further the interest
in judicial economy.
Under Ortiz-Alfaro, the BIA’s November 2008 decision
in this case was not a final order of removal. That order was
undoubtedly “final” with respect to Ms. Abdisalan’s asylum
claim. But administrative proceedings regarding Ms.
Abdisalan’s eligibility for withholding of removal were
ongoing at that point, and those proceedings did not conclude
until the required background checks were completed. The
IJ’s March 2011 order granting Ms. Abdisalan withholding of
removal is the “final order of removal” in this case. 8 U.S.C.
§ 1252(b)(1). We have jurisdiction over her timely filed
petition for review from that order, and we should exercise it
to correct the BIA’s erroneous ruling declaring her asylum
application time-barred.
III
If we conceive of law “as the effort of reason to discover
justice,” Felix Frankfurter, Judge Learned Hand, 60 HARV. L.
REV. 325, 326 (1947), the majority’s opinion must be ranked
as a failure of that enterprise. The rule the majority invokes
to dismiss this appeal is not supported by reason, and it most
certainly does not advance the discovery of justice, whether
in this or any similar case.