Pinto v. Eric H. Holder Jr.

• Decision Date: 12 August 2011
• Docket Number: No. 06–73369.,06–73369.
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Epifanio Teo PINTO, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.

648 F.3d 976

11 Cal. Daily Op. Serv. 10,266

2011 Daily Journal D.A.R. 12,280

Epifanio Teo PINTO, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06–73369.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 2010.Filed Aug. 12, 2011.

Sung U. Park, Esq., Law Offices of Sung U. Park, Los Angeles, CA, for the petitioner.Dalin R. Holyoak, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072–530–318.Before: RAYMOND C. FISHER and JAY S. BYBEE, Circuit Judges, and EDWARD F. SHEA, District Judge.^*

OPINION

BYBEE, Circuit Judge:

Epifanio Teo Pinto petitions for review of a decision by the Board of Immigration Appeals (“BIA”) in which the BIA denied asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) but remanded the case to the immigration judge (“IJ”) for voluntary departure proceedings. Because our jurisdiction is limited to the review of final orders of removal, 8 U.S.C. § 1252(a), we must first decide whether the BIA's decision in this case is such an order. We have previously held that similar BIA decisions are final orders, first in Castrejon–Garcia v. INS, 60 F.3d 1359 (9th Cir.1995) (“ Castrejon ”), where we interpreted § 1252's predecessor, 8 U.S.C. § 1105a (1995), and second in Lolong v. Gonzales, 484 F.3d 1173 (9th Cir.2007) (en banc), where we interpreted § 1252 in light of 8 U.S.C. § 1101(a)(47), a post- Castrejon amendment that both defines an order of removal and specifies when the order becomes final. We must now decide whether the Supreme Court's decision in Dada v. Mukasey, 554 U.S. 1, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008), or the promulgation of a new voluntary departure regulation that became effective on January 20, 2009 deprives us of jurisdiction in this case. Because neither Dada nor the new regulation undermines our jurisdictional holdings in Castrejon and Lolong, we hold that we have jurisdiction over Pinto's petition for review. ¹

I

We begin our jurisdictional journey with an account of the procedural posture of this case and of the law that forms the background for the question before us.

A

In 2003, the Department of Homeland Security (“DHS”) charged Pinto, a native and citizen of Guatemala, with being removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without having been admitted or paroled. Before the IJ, the Petitioner conceded removability but sought asylum, withholding of removal, and protection under CAT. Specifically, Pinto asserted he was persecuted by Guatemalan guerillas on account of his refusal to join their ranks and their suspicions that he was providing information to the Guatemalan army. Although the IJ granted asylum, the BIA vacated the IJ's decision and denied asylum, withholding of removal, and CAT protection, concluding that Pinto failed to demonstrate persecution on account of a protected ground. Citing Molina–Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.2004), for the proposition that it lacked the authority to enter an order of removal when it reversed an IJ's grant of discretionary relief from removal, the BIA then remanded the case to the IJ for the limited purpose of considering whether Petitioner qualified for voluntary departure, and, implicitly, for entry of a final order of removal. In 2006, Pinto timely appealed the BIA's decision to this court while voluntary departure proceedings were still pending before the IJ.

B

At the time Pinto petitioned for review, this court had jurisdiction under 8 U.S.C. § 1252(a)(1) to review “final order[s] of removal.” However, whether we would have concluded that the BIA's decision was a final order of removal was unclear because of possible tension between two of our decisions: Castrejon and Molina–Camacho. In Castrejon, the IJ granted the petitioner suspension from deportation, but the BIA reversed the IJ's grant of discretionary relief and “remanded to the [IJ] for a determination of voluntary departure in lieu of deportation.” 60 F.3d at 1361 (paraphrasing the BIA). Interpreting § 1252(a)'s predecessor, 8 U.S.C. § 1105a, which granted us jurisdiction over “final orders of deportation,” ² we held that a BIA decision denying relief from deportation but remanding the case for voluntary departure proceedings was a final order of deportation. Castrejon, 60 F.3d at 1361. We distinguished a previous decision that held “that an appeal from a decision of the Board was a nullity when the petitioner had moved the Board to reconsider its order” because “plainly, an order that was open for reconsideration by the Board was not final.” Id. By contrast, in Castrejon the BIA's decision was a final order of deportation because “there was nothing pending before the Board,” id. at 1362, and the IJ could not reconsider the Board's order of deportation upon remand, see id. at 1361–62. The BIA's decision was thus effectively final since the BIA had already adjudicated petitioner's deportability; the only lingering question on remand was how petitioner would be deported. See Go v. Holder, 640 F.3d 1047, 1052 (9th Cir.2011) (explaining that in Castrejon “the removal decision was final [because] the immigration tribunals had definitively resolved that petitioner ... would be required to leave the United States”). We held that, under such circumstances, the petitioner “properly appealed the [BIA's] final order.” Id. at 1362.

In Molina–Camacho, we considered a related question: whether we had jurisdiction to review a BIA decision that both reversed an IJ's grant of cancellation of removal and ordered the petitioner removed to Mexico. 393 F.3d at 939. We held that we did not because the BIA's decision was not a final order of removal. Id. at 941–42. We first rejected the government's argument that the IJ's removability finding, made before the IJ granted cancellation of removal, was a final order of removal and that the BIA affirmed this finding when it reversed the IJ's grant of cancellation of removal because we found “no statutory authority ... that supports the assertion that a finding that a petitioner is removable is the same thing as an order of removal.” Id. at 941. Then, relying on our previous holding in Noriega–Lopez v. Ashcroft, 335 F.3d 874 (9th Cir.2003), we explained that since only the IJ has the statutory authority to issue an order of removal, “[t]he BIA's ultra vires act of issuing the order of removal render[ed] that portion of the proceedings a ‘legal nullity.’ ” Molina–Camacho, 393 F.3d at 941. Accordingly, we held that “[b]ecause the BIA chose not to remand to the IJ for the issuance of the order, no final order of removal exist[ed] ... that would provide jurisdiction ... under § 1252.” Id. at 942. Thus, under Molina–Camacho, a BIA decision that reversed an IJ's grant of discretionary relief was not an appealable final order even though that decision definitively adjudicated petitioner's removability.

Three years later we went en banc to overrule Molina–Camacho because it “adopted an overly narrow interpretation of the BIA's authority and did not properly construe the effect of the BIA's reversal of the IJ's decision to [grant discretionary relief] after having found the alien removable.” Lolong, 484 F.3d at 1178. Starting from the premise that an IJ's grant of asylum “necessarily requires the IJ to have already determined that the alien is deportable,” we concluded that “this determination by the IJ constitutes an ‘order of deportation’ ” under the Immigration and Nationality Act. Id. at 1177. Congress defined an “order of deportation” as either an order of the IJ “ ordering deportation” or one merely “ concluding that the alien is deportable.” 8 U.S.C. § 1101(a)(47)(A) (emphasis added).³ Thus, we concluded that “where the BIA reverses an IJ's grant of relief that, by definition, follows an initial determination by the IJ that the alien is in fact removable ... the BIA simply reinstates the order of removal that has already been entered by the IJ.” Lolong, 484 F.3d at 1177. We then held, consistent with Castrejon, that a BIA decision reversing an IJ's grant of discretionary relief and definitively adjudicating petitioner's removability is a final order of removal under 8 U.S.C. § 1252(a). See id. at 1178; see also 8 U.S.C. § 1101(a)(47)(B)(i) (stating that an order of deportation becomes final upon “a determination by the [BIA] affirming [the IJ's order concluding that the alien is deportable]”).

C

Our precedent unambiguously dictates that Pinto petitioned for review from a final order of removal. The IJ's decision was both an order granting asylum and an order of removal because before granting asylum, the IJ specifically “conclud[ed] that the alien [was] deportable.” 8 U.S.C. § 1101(a)(47)(A). This order of removal then became final when the BIA reinstated it by “eliminating the impediment to [its] enforcement” (i.e., the IJ's grant of discretionary relief from removal), Lolong, 484 F.3d at 1177, and thereby affirmed it, see 8 U.S.C. § 1101(a)(47)(B). The BIA's remand to the IJ does not affect the finality of the order of removal because the IJ's only role on remand is to consider Pinto's eligibility for voluntary departure, and that decision is not reviewable because the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) explicitly deprives us of jurisdiction to review an agency's denial of voluntary departure. See 8 U.S.C. § 1229c(f). Accordingly, the BIA's decision denying asylum, withholding of removal, and CAT protection but remanding to the IJ for voluntary departure proceedings is a final order of removal under Castrejon and Lolong and, effectively, the only order that we can review.

However, the government argues that two post- Lolong developments in the law of voluntary departure may have affected our...