Qingyun Li v. Eric Holder, Jr.
2011 U.S. App. LEXIS 23957
| 4th Cir. | 2011Background
- Li, a native and citizen of the Republic of China, entered the United States illegally in 1998 and sought adjustment of status based on an approved I-140 petition.
- DHS denied Li’s adjustment application and later charged removability after serving a Notice to Appear in 2007.
- An Immigration Judge (IJ) found Li removable and denied adjustment in 2009, granting voluntary departure with an alternate removal order to China.
- The Board of Immigration Appeals (BIA) upheld the denial in 2010 but remanded for a new voluntary-departure determination and required advisals at the IJ level.
- Li filed a petition for review in the circuit court; the government urged dismissal for lack of jurisdiction, which the court rejected, but then dismissed the petition without prejudice for prudential reasons tied to Dada v. Mukasey and the new voluntary-departure regulations.
- The court explained that after remand Li would face a new voluntary-departure decision under 8 C.F.R. § 1240.26, creating a choice between voluntary departure and other relief or judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA remand order | Li argues jurisdiction exists under circuit precedent. | Government contends no jurisdiction because of remand nature and lack of final order. | Court has jurisdiction but declines to exercise it. |
| Whether prudential considerations warrant dismissal without prejudice | Li should be allowed to obtain review after remand unless explicitly barred. | Post-Dada and new regulation, review should be deferred to avoid undermining voluntary-departure regime. | Petition dismissed without prejudice for prudential reasons. |
| Whether Dada v. Mukasey and the 1240.26 regulation overrule prior panel authority | Prior Saldarriaga Perez-Vargas authority remains controlling. | Dada and the regulation modify the landscape and permit prudential restraint on review. | Dada did not overrule the prior holdings, but prudentially declined to exercise jurisdiction. |
| Whether Pinto v. Holder requires a different approach | Pinto supports exercising jurisdiction. | Pinto is distinguishable and supports not exercising jurisdiction after the regulation. | Court declines Pinto's approach as distinguishable and adheres to prudential restraint. |
| What is the appropriate disposition given the new regulatory framework | Li should have access to review post-remand if appropriate. | Review now would conflict with the voluntary-departure framework and 1240.26. | Petition dismissed without prejudice; Li may pursue review after a new voluntary departure date is set. |
Key Cases Cited
- Saldarriaga v. Gonzales, 402 F.3d 461 (4th Cir. 2005) (finality of BIA-remand orders permitting review)
- Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007) (remand for voluntary departure constitutes final order)
- Pinto v. Holder, 648 F.3d 976 (9th Cir. 2011) (regulation applicability depends on timing; distinguishes Hakim)
- Hakim v. Holder, 611 F.3d 73 (1st Cir. 2010) (prudential decline to exercise jurisdiction after remand for voluntary departure)
- Giraldo v. Holder, 654 F.3d 609 (6th Cir. 2011) (prudential decline to exercise jurisdiction post-Dada in similar remand contexts)
- Dada v. Mukasey, 554 U.S. 1 (Supreme Court 2008) (voluntary departure and motion to reopen framework; regulatory interplay)
- United States v. Collins, 415 F.3d 304 (4th Cir. 2005) (binding law of the circuit; decisions become law of the circuit)