Giraldo v. Holder
2011 U.S. App. LEXIS 16616
| 6th Cir. | 2011Background
- Giraldo and her minor daughter entered the United States illegally from Colombia in February 2002 and applied for asylum in 2006; their asylum application was untimely and referred to the immigration court.
- They were charged as removable aliens under 8 U.S.C. § 1182(a)(6)(A)(i), and removability was conceded.
- The immigration judge denied asylum as untimely and denied withholding of removal under CAT, but granted withholding of removal as to Colombia and ordered removal to a country other than Colombia under § 241(b).
- The DHS appealed, and the BIA reversed, sustaining the DHS appeal and remanding to the IJ solely to allow voluntary departure.
- Petitioners sought judicial review; the Sixth Circuit initially addressed jurisdiction and stayed removal pending review.
- The court held it had jurisdiction but declined to exercise it for prudential reasons due to a recent amendment to the voluntary departure regulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA's remand order | Giraldo argues finality exists despite remand for voluntary departure. | Holder contends no final removal order due to remand and ongoing proceedings. | Court has jurisdiction to review the BIA denial of withholding. |
| Whether the jurisdiction should be exercised given prudential concerns | Petitioners should be able to obtain judicial review of withholding. | Regulatory amendment (Jan 20, 2009) favors dismissal to promote prompt voluntary departure. | Court declines to exercise jurisdiction for prudential reasons. |
| Impact of 8 C.F.R. § 1240.26(i) on finality and reviewability | Remand solely for voluntary departure does not strip finality. | Automatic termination upon petition for review could undermine review of withholding. | Regulation does not defeat jurisdiction; remains reviewable, but exercised with prudential restraint. |
Key Cases Cited
- Lazo v. Gonzales, 462 F.3d 53 (2d Cir. 2006) (final order of removal satisfied when IJ finds removability and BIA reverses impediment to removal)
- Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008) (removal finality tied to definitional removal order writings)
- Perkovic v. INS, 33 F.3d 615 (6th Cir. 1994) (denial of asylum and other final orders may be reviewable as final orders of deportation)
- Del Pilar v. U.S. Att'y Gen., 326 F.3d 1154 (11th Cir. 2003) (remanding for voluntary departure does not bar finality of removal order)
- Alibasic v. Mukasey, 547 F.3d 78 (2d Cir. 2008) (BIA denial of relief and remand for voluntary departure can be final order)
- Yusupov v. Attorney General, 518 F.3d 185 (3d Cir. 2008) (remand for limited proceedings does not necessarily affect finality of removal order)
- Patel v. Att'y Gen., 619 F.3d 230 (3d Cir. 2010) (regulation § 1240.26(i) functions to terminate voluntary departure upon petition for review)
- Hakim v. Holder, 611 F.3d 73 (1st Cir. 2010) (prudentially declines to exercise jurisdiction due to regulatory changes)