Abdisalan v. Holder

Citation774 F.3d 517
Decision Date15 December 2014
Docket Number11–71124.,Nos. 10–73215,s. 10–73215
PartiesSama Abdiaziz ABDISALAN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. Sama Abdiaziz Abdisalan, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

774 F.3d 517

Sama Abdiaziz ABDISALAN, Petitioner
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.


Sama Abdiaziz Abdisalan, Petitioner
v.
Eric H. Holder, Jr., Attorney General, Respondent.

Nos. 10–73215
11–71124.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc June 19, 2014.
Filed Dec. 15, 2014.
Amended Jan. 6, 2015.


774 F.3d 520

Vicky Dobrin and Hilary Han (argued), Dobrin & Han, PC, Seattle, WA, 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, ID, for Amicus Curiae American Immigration Lawyers Association.

Charles Roth, Chicago, IL, for Amicus Curiae National Immigration Justice Center.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A095–406–303.

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

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).

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

774 F.3d 521

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 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).

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, 115 S.Ct. 1537, 131 L.Ed.2d 465 (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

774 F.3d 522

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 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 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

774 F.3d 523

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...

To continue reading

Request your trial
55 cases
  • Martinez v. Barr
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 30, 2019
    ...open, "tak[ing] no position on the current circuit split regarding treatment of premature petitions generally." Abdisalan v. Holder , 774 F.3d 517, 527 (9th Cir. 2014) (en banc). We have made clear that, pursuant to statutory requirements, our court’s jurisdiction to review immigration cour......
  • People v. Gafken
    • United States
    • Michigan Supreme Court
    • December 29, 2022
    ...available in many jurisdictions for "attempted murder or aiding and abetting murder"), overruled on other grounds by Abdisalan v Holder, 774 F.3d 517 (CA 9, 2015) (en banc); Cawthon v State, 382 So.2d 796, 797 (Fla App, 1980) (rejecting the duress defense in an attempted-murder charge and s......
  • Vega-Anguiano v. Barr
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 19, 2019
    ...order of removal as ‘the order’ of the IJ ‘concluding that the alien is deportable or ordering deportation.’ " Abdisalan v. Holder , 774 F.3d 517, 523 (9th Cir. 2014) (en banc) (footnote omitted) (quoting 8 U.S.C. § 1101(a)(47)(A) ). Before issuing an order of removal, an immigration judge ......
  • In re Negusie
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • June 28, 2018
    ...provision to permit the Secretary to waive almost all of the terrorism-related bars."), overruled on other grounds by Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014). A waiver could more effectively allow for consideration of all the facts and circumstances holistically in any given case ......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT