Batubara v. Holder, 2013 U.S. App. LEXIS 21957

Petitioners Imelda Rosalyna Purba and Aram Batubara (Indonesian citizens) conceded removability after overstaying lawful admission and applied in 2004 for asylum, withholding of removal, and CAT relief (Purba asserted persecution for Christian evangelism; Batubara sought derivative relief).
The IJ denied relief in 2006; the BIA dismissed on appeal; the Tenth Circuit remanded once for a circuit-law-based reason; the IJ again denied relief in April 2009 and granted 60 days voluntary departure.
On May 4, 2011 the BIA upheld the IJ’s denial of asylum, withholding, and CAT relief but remanded to the IJ for required voluntary-departure advisals and bond-posting advisals under 8 C.F.R. § 1240.26(c)(3).
On remand the petitioners withdrew voluntary departure; the IJ ordered removal on March 28, 2012; petitioners filed a petition for review on April 23, 2012 challenging the BIA’s May 4, 2011 decision (and separately appealed the IJ’s March 28, 2012 order to the BIA, still pending).
The government and petitioners initially treated the April 2012 filing as timely, but the court ordered supplemental briefs on whether the May 4, 2011 BIA order was a final order of removal; the court concluded it was final and therefore the April 2012 petition was untimely.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA’s May 4, 2011 order was a "final order of removal" under the INA	Petitioners argued the BIA order was not final because removability depended on the IJ’s later voluntary-departure-related proceedings	Government argued the BIA’s decision affirming removability and denying relief was final even though the BIA remanded only for voluntary-departure advisals	The court held the May 4, 2011 BIA order was a final order of removal subject to judicial review under 8 U.S.C. § 1252; the petition filed Apr 23, 2012 was untimely and jurisdictionally barred
Whether remand for voluntary-departure advisals prevents finality / tolls the 30-day filing rule	Petitioners contended remand rendered removability unresolved and thus delayed the deadline	Government and court contended voluntary departure affects only manner of exit, not removability; remand for voluntary-departure advisals does not change finality	The court held remand solely for voluntary-departure matters does not affect finality; circuits uniformly so hold; timeliness requirement is jurisdictional and unavailable here

Padilla-Caldera v. Holder, 637 F.3d 1140 (10th Cir. 2011) (circuit courts have jurisdiction only over final orders of removal)
Hamilton v. Gonzales, 485 F.3d 564 (10th Cir. 2007) (defining "order of removal" as one concluding alien is removable or ordering removal)
Sosa-Valenzuela v. Gonzales, 483 F.3d 1140 (10th Cir. 2007) (BIA affirmance or lapse of BIA review period produces final order)
Foti v. INS, 375 U.S. 217 (1963) (granting voluntary departure does not negate an outstanding final deportation order)
Almutairi v. Holder, 722 F.3d 996 (7th Cir. 2013) (order denying relief but remanding for voluntary-departure advisals is final)
Li v. Holder, 666 F.3d 147 (4th Cir. 2011) (BIA order denying relief but remanding for voluntary-departure advisals is appealable as final)
Giraldo v. Holder, 654 F.3d 609 (6th Cir. 2011) (same: remand for voluntary departure does not defeat finality)
Pinto v. Holder, 648 F.3d 976 (9th Cir. 2011) (same: denial of relief with remand for voluntary departure is final)
Alibasic v. Mukasey, 547 F.3d 78 (2d Cir. 2008) (joins other circuits in treating such BIA orders as final)
Del Pilar v. U.S. Att’y Gen., 326 F.3d 1154 (11th Cir. 2003) (remand for ministerial matters does not prevent finality)
Nahatchevska v. Ashcroft, 317 F.3d 1226 (10th Cir. 2003) (timely filing of petition for review is mandatory and jurisdictional)