Sama Abdisalan v. Eric Holder, Jr., 728 F.3d 1122

Background

Sama Abdisalan, a Somali national, applied for asylum on March 28, 2002, and sought withholding of removal and CAT protection as well.
After a merits hearing (July 9, 2007), the IJ granted withholding of removal, denied asylum as time-barred, and denied CAT protection; the IJ’s grant of withholding relied on background/security clearances that later expired.
Abdisalan appealed only the denial of asylum to the BIA; on November 25, 2008 the BIA dismissed the asylum appeal (finding her statutorily ineligible) and remanded to the IJ to update background checks needed to effectuate the IJ’s grant of withholding.
The BIA remand led to repeated background checks (completed in June 2009 and March 2011); Abdisalan filed later appeals/petitions after those clearances, but did not file a petition for review within 30 days of the BIA’s November 25, 2008 decision.
The Ninth Circuit majority held it lacked jurisdiction over the asylum claim because the 2008 BIA decision became a final order of removal for that claim and the 30‑day deadline to seek review expired; dissent argued the remand under 8 C.F.R. §1003.1(d)(6) meant the BIA order was not final.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA’s Nov. 25, 2008 order was a "final order of removal" triggering the 30‑day clock for judicial review	Abdisalan: the BIA remanded for background checks, so the 2008 order was not final; finality occurred only after the IJ’s 2011 order following clearance	Government/BIA: the BIA’s 2008 dismissal of asylum became final as to the asylum claim; remand concerned only procedural background checks for previously granted withholding	Held: The 2008 BIA decision was final as to asylum; petitioner’s failure to timely seek review deprives the court of jurisdiction
Whether the court may review the asylum denial via later petitions filed after background-check remands	Abdisalan: timely petition from the IJ’s 2011 order should permit review of all exhausted issues including the prior asylum denial	Government: later petitions (2010, 2011) cannot revive an expired 30‑day window for the 2008 final asylum determination	Held: Later petitions were untimely to challenge the 2008 asylum determination; jurisdiction is lacking
Precedent interpretation — Li v. Holder and Go v. Holder applicable standard for finality after remand for background checks	Abdisalan: Li and subsequent cases support treating the final order as occurring after remand completes and all proceedings conclude	Government: Li supports jurisdiction only when petition filed within 30 days after the BIA denial; Li actually allows reviewing the final denial when no substantive issues remain pending	Held: Court applies Li/related precedents to conclude the asylum claim was final in 2008 and that jurisdiction expired
Whether remand for background checks permits reopening or relitigation of previously decided claims	Abdisalan: remand permits IJ to consider new evidence and thus the agency’s prior decisions weren’t final	Government/BIA: remand under §1003.1(d)(6) is limited to completing procedural background checks and does not reopen prior BIA decisions; new evidence is limited to material discovered later	Held: Remand was limited to background checks; it did not convert the BIA’s asylum dismissal into a nonfinal order for purposes of the 30‑day review period

Key Cases Cited

Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (de novo review of legal questions assigned to BIA interpretation)
Colmenar v. I.N.S., 210 F.3d 967 (9th Cir. 2000) (standard for full and fair hearing and opportunity to present evidence)
Li v. Holder, 656 F.3d 898 (9th Cir. 2011) (jurisdiction exists to review a denial of relief when BIA denied relief and remanded under §1003.1(d)(6) and no substantive issues remained pending)
Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) (no final removal order where administrative proceedings on other claims remained ongoing)
Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012) (limits Li to its facts; finality is fact-dependent when some claims remain pending)
Yepremyan v. Holder, 614 F.3d 1042 (9th Cir. 2010) (30‑day statutory deadline for petitions for review is mandatory and jurisdictional)