Summary
In Singh v. Lynch, 835 F.3d 880, 883 (9th Cir. 2016), we applied Pinto and held that because a BIA decision remanding solely for voluntary departure proceedings was a final order of removal, it started the clock for appeal purposes.
Summary of this case from Castillo v. WhitakerOpinion
No. 12–74163
09-01-2016
Surinder Singh, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
Bart Klein, Law Offices of Bart Klein, Seattle, Washington, for Petitioner. Edward E. Wiggers, Jennifer L. Lightbody and Patrick J. Glen, Senior Litigation Counsel; Donald E. Keener, Deputy Director; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Bart Klein, Law Offices of Bart Klein, Seattle, Washington, for Petitioner.
Edward E. Wiggers, Jennifer L. Lightbody and Patrick J. Glen, Senior Litigation Counsel; Donald E. Keener, Deputy Director; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Before: Alex Kozinski, Diarmuid F. O'Scannlain, and Ronald M. Gould, Circuit Judges.
OPINION
PER CURIAM:
We must decide whether we have jurisdiction over a petition for review of a Board of Immigration Appeals decision remanding to the Immigration Judge solely for voluntary departure proceedings.
I
On May 5, 2009, an Immigration Judge (IJ) denied Indian citizen Surinder Singh's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ granted Singh voluntary departure with an alternate order of removal to India. Singh appealed the IJ's decision to the Board of Immigration Appeals (BIA). On June 22, 2011, the BIA affirmed the denial of asylum, withholding of removal, and CAT relief, but remanded the case to the IJ “to provide all advisals required upon granting voluntary departure.” Singh did not file a petition to this court for review of the BIA order within 30 days of the June 2011 decision.
An IJ who grants voluntary departure is required to advise an alien that he must, within 30 days of filing an appeal with the BIA, submit sufficient proof that he has posted a voluntary departure bond with the Department of Homeland Security. See 8 C.F.R. § 1240.26(c)(3), (3)(ii).
On remand, the IJ gave Singh the required advisals and again granted voluntary departure with an alternate order of removal to India. Singh again appealed the IJ's decision to the BIA; he did not allege that the IJ had made errors of law or fact on remand. On November 29, 2012, the BIA summarily dismissed Singh's second appeal, declined to reinstate voluntary departure, and ordered Singh removed to India pursuant to the IJ's alternate order. On December 20, 2012, Singh timely filed this petition for review.
II
Our jurisdiction to review a deportation decision is limited to a “final order of removal.” 8 U.S.C. §§ 1252(a)(1), (b)(9) ; Viloria v. Lynch , 808 F.3d 764, 767 (9th Cir. 2015) ; Alcala v. Holder , 563 F.3d 1009, 1016 (9th Cir. 2009). 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) ; Stone v. I.N.S. , 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). This deadline is “mandatory and jurisdictional.” Magtanong v. Gonzales , 494 F.3d 1190, 1191 (9th Cir. 2007) (per curiam). “A mandatory and jurisdictional rule cannot be forfeited or waived, and courts lack the authority to create equitable exceptions to such a rule.” Id. (citation omitted).
A
The text of the Immigration and Nationality Act (INA) “does not explicitly define the term ‘final order of removal.’ ” Shaboyan v. Holder , 652 F.3d 988, 990 (9th Cir. 2011) (per curiam). However, INA § 101(a)(47), 8 U.S.C. § 1101(a)(47), “does define the term ‘order of deportation’ and establishes when such an order becomes final.” Shaboyan , 652 F.3d at 990 ; see Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104–132, § 440, 110 Stat. 1214.
We have explained that, in this context, “the terms ‘deportable’ and ‘deportation’ can be used interchangeably with the terms ‘removable’ and ‘removal,’ respectively.” Lolong v. Gonzales , 484 F.3d 1173, 1177 n.2 (9th Cir. 2007) (en banc); see Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104–208, § 309(d)(2), 110 Stat. 3009 (“[A]ny reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.”).
The INA defines the term “order of deportation” as “the order of the [IJ ] ... concluding that the alien is deportable or ordering deportation.” 8 U.S.C. § 1101(a)(47)(A).
The statute uses the term “special inquiry officer.” 8 U.S.C. § 1101(a)(47)(A). Regulations “in effect at the time Congress passed 8 U.S.C. § 1101(a)(47) defined ‘immigration judge’ to mean a ‘special inquiry officer and may be used interchangeably with the term special inquiry officer wherever it appears in this chapter.’ ” Molina–Camacho v. Ashcroft , 393 F.3d 937, 940 (9th Cir. 2004) (citing 8 C.F.R. § 1.1(l ) (1996) ), overruled on other grounds by Lolong , 484 F.3d at 1175.
The order described under subparagraph (A) shall become 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.
Id. § 1101(a)(47)(B). The statute does not define “affirming such order.”
When the BIA affirms in full the IJ's order of removal, that decision obviously constitutes “a determination by the [BIA] affirming such order,” and is thus a final order of removal. See Abdisalan v. Holder , 774 F.3d 517, 521 (9th Cir. 2014) (en banc). However, when the BIA does not affirm in full, but rather affirms in part and remands, finality is less clear. In such a case, is the BIA “affirming” the IJ's order of removal? The statutory text does not provide a clear answer.
B
This question is not one of first impression for our court. Under Pinto v. Holder, “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 ... and, effectively, the only order that we can review.” 648 F.3d 976, 980 (9th Cir. 2011). Because the BIA's June 2011 decision remanding solely for voluntary departure proceedings is a “final order of removal,” the IJ's order became unreviewable on July 23, 2011 upon expiration of the 30 day period to petition for review to this court. In light of Pinto and consistent with the Sixth and Tenth Circuits, we must conclude that we lack jurisdiction over Singh's current petition. See Hih v. Lynch , 812 F.3d 551, 554 (6th Cir. 2016) ; Batubara v. Holder , 733 F.3d 1040, 1042–43 (10th Cir. 2013).
After Pinto was decided, an en banc panel of our court issued Abdisalan . Abdisalan concluded that, “[w]hen the BIA remands to the IJ for any reason, no final order of removal exists until all administrative proceedings have concluded.” 774 F.3d at 526. However, we explicitly declined to address remands for voluntary departure and did not overrule Pinto. See id. at 526 n.8 (“Under the facts of this case, we need not revisit our rule that the BIA's decision is a final order of removal when it remands for consideration of voluntary departure but denies all other forms of relief.”).
Recognizing that Abdisalan's broadly stated conclusion created some tension with Pinto, we ordered supplemental briefing on whether Pinto should be overruled in light of the reasoning and holding of Abdisalan. While that briefing was pending, another threejudge panel decided Rizo v. Lynch , 810 F.3d 688 (9th Cir. 2016). Rizo concluded that “Pinto remains the law of the Circuit.” Id. at 691. Consequently, the Rizo panel determined that a “BIA remand for further proceedings as to voluntary departure does not affect the finality of an otherwisefinal order of removal.” Id. at 692. We directed the parties to address Rizo in their supplemental briefs. Both the government and Singh argued that Rizo was wrongly decided. A judge requested a vote on whether to rehear Rizo en banc, but a majority of nonrecused active judges did not vote in favor of rehearing en banc. Rizo and Pinto thus remain law of the circuit, and our threejudge panel is bound to apply them faithfully.
Under the circumstances, Singh remains subject to immediate removal to India.