Giraldo v. Holder

• Decision Date: 12 August 2011
• Docket Number: No. 09–4445.,09–4445.
• Citation: 654 F.3d 609
• Parties: Dora Liliana GIRALDO; Isabella Santamaria, Petitioners,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

654 F.3d 609

Dora Liliana GIRALDO; Isabella Santamaria, Petitioners,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–4445.

United States Court of Appeals, Sixth Circuit.

Argued: April 19, 2011.Decided and Filed: Aug. 12, 2011.

[654 F.3d 609]

ARGUED: Jennifer Jordan Hall, Louisville, Kentucky, for Petitioners. Wendy Benner–Leon, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Jennifer Jordan Hall, Louisville, Kentucky, for Petitioners. Emily Anne Radford, United States Department of Justice, Washington, D.C., for Respondent.

[654 F.3d 610]

Before: BATCHELDER, Chief Judge; SUHRHEINRICH and GRIFFIN, Circuit Judges.OPINION SUHRHEINRICH, Circuit Judge.

Petitioner Dora Liliana Giraldo and her minor daughter (collectively Petitioners), seek review of the order of the Board of Immigration Appeals (“BIA”) vacating the immigration judge's (“IJ”) order granting Petitioners withholding of removal. The Attorney General contends that because the BIA also remanded to the IJ to allow Giraldo to apply for voluntary departure, there is as yet no final order, such that we lack jurisdiction.

We conclude that we have jurisdiction, but decline to exercise it for prudential reasons.

I. Background

Petitioners illegally entered the United States at El Paso, Texas in February 2002, from Colombia. They applied for asylum on August 10, 2006. They also sought withholding of removal and relief under the Convention Against Torture (“CAT”). Their application was untimely and was referred to the immigration court.¹ By Notices to Appear served March 1, 2007, Petitioners were charged pursuant to section 212(a)(6)(A)(i) of the Immigration of Nationality Act (“INA”) 8 U.S.C. § 1182(a)(6)(A)(i), with being removable from the United States as aliens illegally present in the United States without inspection, admission, or parole. Petitioners conceded the charges, and their removability is uncontested on review.

The IJ held an evidentiary hearing on October 11, 2007. The IJ denied Petitioners' application for asylum as untimely and declined to withhold removal under CAT for lack of proof. The IJ found both Petitioners removable under 8 U.S.C. § 1182(a)(6)(A)(i), but granted Petitioners withholding of removal as to Colombia under 8 U.S.C. § 1231(b)(3). The IJ further “order [ed] both [Petitioners] to be removed in accordance with Section 241(b) [8 U.S.C. § 1231(b) ] to any country other than Colombia.”

The Department of Homeland Security (“DHS”) appealed the decision in both cases, claiming that the evidence presented was vague and lacked corroboration. Petitioners moved to consolidate the appeals.²

On October 30, 2009, the BIA concluded that Petitioners failed to establish a clear probability of future persecution in Colombia on account of political opinion. It sustained the DHS's appeal, reversed the IJ's grant of withholding of removal, and “remanded” the record to the IJ “for the sole purpose of allowing [Petitioners] to apply for voluntary departure.”

Petitioners now seek review in this court, a stay of removal, and an order staying the BIA's remand to the IJ. Respondent, the Attorney General (“Attorney General” or “Government”), has moved to dismiss the petition for lack of jurisdiction. On February 4, 2010, this court denied the motion to dismiss, but directed the parties to address this court's jurisdiction in their appellate briefs. This court also denied

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Petitioners' motion to stay the BIA's remand to the IJ, but stayed Petitioners' removal pending review.

Petitioners filed a timely petition for review of the BIA's decision with this court. First we must consider the Government's motion to dismiss.

II. Analysis A. Jurisdiction

The Attorney General argues that this court lacks jurisdiction to consider the petition for review because there is no final order of removal. The Attorney General claims that the order is not final because the BIA remanded the proceedings to the IJ for further consideration of voluntary departure relief. Petitioners respond that an order of voluntary departure is discretionary and there is nothing left pending before the BIA.

We review questions of subject matter jurisdiction and law de novo. Elgharib v. Napolitano, 600 F.3d 597, 600–01 (6th Cir.2010).

Section 242, 8 U.S.C. § 1252, of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104–208, Div. C, 110 Stat. 3009–546 (1996), is the statutory basis for judicial review of administratively final removal orders. 8 U.S.C. § 1252(a). Our “review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter” is limited to “judicial review of a final order.” Id. § 1252(b)(9). This court has jurisdiction to review “a final order of removal” if “(1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of that order.” Id. § 1252(d). “The term ‘order of [removal]’ means the order of the special inquiry officer ³, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is [removable], concluding that the alien is [removable] or ordering [removal].” 8 U.S.C. § 1101(a)(47)(A).⁴ Orders of removal became administratively final upon the earlier of “(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) 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)(i) & (ii).

Federal appellate court review is “the sole and exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). But such review is limited. First, subsection 242(a)(2)(B) precludes the review of an order granting voluntary departure. Section 1252(a)(2)(B)(i) states that “no court shall have jurisdiction to review ... any judgment regarding the granting of relief under ... section 1229c.” Id. § 1252(a)(2)(B)(i). Further, § 1252(a)(2)(B)(ii) provides that “no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified

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under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” Id. § 1252(a)(2)(B)(ii).⁵

Voluntary departure is a discretionary form of relief. 8 U.S.C. § 1229c(a)(1); Harchenko v. INS, 379 F.3d 405, 411 (6th Cir.2004). And § 1229c specifically excludes judicial review of the denials of a request for voluntary departure. 8 U.S.C. § 1229c(f) (“No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure under subsection (b) of this section, nor shall any court order of a stay of an alien's removal pending consideration of any claim with respect to voluntary departure.”); see also Harchenko, 379 F.3d at 412 n. 2 (“It is clear under the IIRIRA this court has no authority to review discretionary grants and denials of voluntary departure ... [under 8 U.S.C. § 1229c(f) ]”). See generally Ngarurih v. Ashcroft, 371 F.3d 182, 193 (4th Cir.2004) (“IIRIRA also changed the rules concerning judicial review of voluntary departure decisions.”).

So the question in this case is whether we have an administratively final order of removal for purposes of § 1252 despite the fact that the BIA remanded to the IJ “for the sole purpose of allowing Petitioners to apply for voluntary departure.”

A number of courts have held that a BIA order denying relief from removal and remanding for the exclusive purpose of considering a request for voluntary departure is a final order of removal subject to federal appellate court jurisdiction. See Alibasic v. Mukasey, 547 F.3d 78, 83–84 (2d Cir.2008) (reasoning that the IJ's underlying finding of removability based on the alien's concessions of removability remains in place after BIA removes an impediment to removal); Saldarriaga v. Gonzales, 402 F.3d 461, 466 n. 2 (4th Cir.2005) (holding that BIA's reversal of IJ's grant of asylum and remand to IJ to allow the petitioner to apply for voluntary departure was an immediately appealable final order); Del Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1157 (11th Cir.2003) (per curiam) (holding that a BIA order denying relief from removal but remanding the case for voluntary departure proceedings or other subsidiary determinations was a final order of removal because “all of the issues presented to us were subject to a final order by the BIA and there is nothing remaining for [the petitioner] to appeal as the only thing left for the IJ to determine is the country to which [the petitioner] will be removed”); Castrejon–Garcia v. INS, 60 F.3d 1359, 1361–62 (9th Cir.1995) (holding that the BIA's order reversing the grant of suspension and remanding to the IJ for a determination of voluntary departure was a final order of removal because “there was nothing pending before the Board and the petitioner had no reason or basis for appealing the Immigration Judge's decision in his favor”). This court is in accord. See Perkovic v. INS, 33 F.3d 615, 619 (6th Cir.1994) (“We are aware of no authority for the proposition that a BIA order rejecting an asylum application is not a final order unless a formal order of deportation has already been issued.”).

Further, a number of courts of appeals have held that an order is final for purposes of § 1252(a)(1) when the removability

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determination is no longer appealable to the BIA, even if a formal order of removal has not yet been entered, see, e.g., Lazo v. Gonzales, 462 F.3d 53, 54 (2d Cir.2006) (holding that “the statutory requirement of an order of removal is satisfied when—as here—the IJ either orders removal or concludes that an alien is removable”); Solano–Chicas v. Gonzales, 440 F.3d...