683 F.3d 1227
9th Cir.2012Background
- Bao, a native and citizen of China, seeks review of the BIA's denial of asylum, withholding of removal, and CAT protection in an asylum-only proceeding.
- Bao arrived as an alien crew member; asylum proceedings are limited to asylum, withholding, and CAT, with no final removal order issued below.
- The issue is whether the BIA's denial in asylum-only proceedings constitutes a final order of removal for jurisdiction purposes.
- Bao was aboard the Zhih Yung, a fishing vessel; he acted as a government witness against snakeheads and signed a statement but did not testify in court.
- The IJ denied relief, the BIA affirmed, and DHS initiated asylum-only proceedings under 8 C.F.R. § 208.2(c); Bao petitioned for review in the Ninth Circuit.
- The court ultimately held that the denial of asylum and related relief in asylum-only proceedings is the functional equivalent of a final removal order, giving jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asylum-only denials have jurisdictional effect | Bao's denial is reviewable jurisdictionally. | No final removal order exists, so no jurisdiction. | Yes; denial is the functional equivalent of a removal order. |
| Whether agency denial in asylum-only proceedings is a final order | Functional-equivalent of final removal order justifies review. | Proceedings lack final removal order, jurisdiction uncertain. | Yes; denial functions as a final order for §1252(a)(1) purposes. |
Key Cases Cited
- Restrepo v. Holder, 610 F.3d 962 (7th Cir. 2010) (asylum-only denial can be jurisdictionally reviewable)
- Mitondo v. Mukasey, 523 F.3d 784 (7th Cir. 2008) (jurisdiction over asylum-only petitions)
- Shehu v. Att’y Gen., 482 F.3d 652 (3d Cir. 2007) (jurisdiction in asylum-only contexts)
- Kanacevic v. INS, 448 F.3d 129 (2d Cir. 2006) (denial of asylum in asylum-only proceedings is the functional equivalent of a removal order)
- Nreka v. Att’y Gen., 408 F.3d 1361 (11th Cir. 2005) (jurisdictional recognition for asylum-only review)
- Junming Li v. Holder, 656 F.3d 898 (9th Cir. 2011) (BIA's asylum denial can be final where merits were decided)