Pinto v. Holder
2011 U.S. App. LEXIS 16611
| 9th Cir. | 2011Background
- Pinto, a Guatemalan national, was charged with removability under 8 U.S.C. § 1182(a)(6)(A)(i) and sought asylum, withholding of removal, and CAT protection before the IJ.
- The IJ granted asylum, but the BIA reversed and denied asylum, withholding, and CAT, remanding for voluntary departure proceedings.
- The BIA treated the remand as effectively finalizing a removal order by reinstating the IJ’s order after overturning discretionary relief, and Pinto appealed.
- Our court previously held in Castrejon and Lolong that a BIA decision reversing IJ relief and affirming removability can be a final order of removal; Molina-Camacho held the reverse was not a final order.
- The government argued that Dada and a new voluntary departure regulation (effective Jan 20, 2009) undermined Lolong’s holdings; Pinto argued the regulation is not retroactive and does not apply here.
- The court ultimately concluded it has jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s final order and that Dada and the new regulation do not undermine Lolong.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the BIA's denial of asylum/removal with remand for voluntary departure a final removal order? | Pinto argues the BIA’s remand does not defeat finality; the IJ’s removal order remains final. | DHS argues the BIA’s remand and reversal of discretionary relief creates no final order of removal pending voluntary departure. | Yes; the BIA's decision is a final order of removal. |
| Does Dada v. Mukasey undermine LolongCastrejon framework for final orders? | Dada's approach could toll or alter jurisdiction in voluntary departure contexts. | Dada does not address this specific final-order framework and does not undermine Lolong. | Dada does not undermine the Lolong Castrejon framework; jurisdiction remains. |
| Does the January 20, 2009 voluntary departure regulation affect Pinto's petition for review? | The regulation could foreclose review or retroactively affect final orders; Pinto is not retroactively affected because his petition predates the regulation. | Regulation could bar review if applicable; it aims to terminate voluntary departure upon petition for review. | Regulation does not apply retroactively to Pinto; jurisdiction preserved. |
| Does Fernandes v. Holder affect the analysis of remand scope and finality in Pinto's case? | Fernandes could limit remand scope; the BIA remanded only for voluntary departure, not other issues. | Fernandes supports limiting remand scope; here the remand was specific to voluntary departure. | Fernandes does not alter the final-order conclusion; remand was properly limited. |
Key Cases Cited
- Castrojon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995) (finality of BIA remand decisions when no pending Board reconsideration)
- Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004) (BIA cannot issue an order of removal; not a final removal order)
- Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (en banc; BIA reverses IJ grant of asylum and grants relief; final order of removal)
- Dada v. Mukasey, 554 U.S. 1 (2008) (voluntary departure penalties; cannot toll departure; allows withdrawal to reach merits)
- Noriega-Lopez v. Ashcroft, 335 F.3d 874 (9th Cir. 2003) (order of deportation defined; interact with IJ orders)
- Hakim v. Holder, 611 F.3d 73 (1st Cir. 2010) (prudential approach to remand regulation; jurisdictional considerations)
- Patel v. Attorney Gen., 619 F.3d 230 (3d Cir. 2010) (scope of remand and judicial review in voluntary departure context)