Sama Abdisalan v. Eric Holder, Jr.
774 F.3d 517
| 9th Cir. | 2015Background
- Sama Abdisalan, a Somali national, applied for asylum, withholding of removal, and CAT protection in 2002; IJ denied asylum as time‑barred but granted withholding.
- The BIA in 2008 affirmed denial of asylum and remanded for background checks related to withholding; Abdisalan did not seek review of that 2008 BIA decision.
- After background checks were completed, further IJ and BIA proceedings occurred (2010 BIA dismissal of a late reconsideration; 2011 IJ order reaffirming withholding and denial of asylum).
- Abdisalan filed consolidated petitions for review in the Ninth Circuit challenging the time‑bar denial of asylum; a panel held the 2008 BIA decision was final and dismissed for untimeliness.
- The en banc Ninth Circuit considered whether a “mixed” BIA decision (denying some claims but remanding others) is a final order of removal for purposes of the 30‑day petition‑for‑review deadline and whether premature petitions should ripen.
Issues
| Issue | Abdisalan's Argument | Holder's Argument | Held |
|---|---|---|---|
| Whether a BIA decision that denies some claims but remands others is a “final order of removal” triggering the 30‑day PFR clock | Mixed BIA decisions are not final; jurisdiction remains until remand proceedings conclude (follow Go) | The BIA decision is final as to the claims it decided and the 30‑day clock runs for those claims (follow Li) | A mixed BIA decision is not a final order of removal as to any claim; the 30‑day clock does not run until remand proceedings conclude (overruled Li) |
| Whether pending petitions filed while remanded proceedings were ongoing should be treated as timely upon completion of those proceedings | Premature petitions should ripen when administrative proceedings end to avoid unfairness | Premature petitions are untimely; no automatic ripening | The court holds premature petitions pending on the date of this opinion automatically ripen upon conclusion of remanded proceedings (limited retroactive ripening) |
| Whether the court may review Abdisalan’s asylum‑timeliness claim after remand and agency proceedings | Court has jurisdiction to review the asylum one‑year filing determination once proceedings concluded | Government contended some petitions were untimely; conceded withholding grant implies asylum merits but maintained timeliness issue is subject to clear‑and‑convincing standard question | Court has jurisdiction over consolidated petition and remands to BIA to define/clarify the “clear and convincing” standard post‑Singh for one‑year filing bar |
| Proper treatment of agency deference and statutory text on finality | Statute supports single final order; agency interpretations persuasive but not Chevron‑controlling on court’s jurisdiction | Argued BIA decisions could be final as to discrete claims | Court reads INA to require single final order (no finality while remand proceedings that can affect outcome are ongoing); relies on agency regulations/decisions (Skidmore weight), but declines Chevron/Auer deference |
Key Cases Cited
- Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) (held BIA mixed decision not final; finality occurs after all claims resolved)
- Li v. Holder, 656 F.3d 898 (9th Cir. 2011) (held BIA decision final as to claims decided despite remand for background checks)
- Singh v. Holder, 649 F.3d 1161 (9th Cir. 2011) (REAL ID Act does not require corroboration of credible testimony to meet one‑year filing bar; remanded for BIA guidance on “clear and convincing”)
- Stone v. INS, 514 U.S. 386 (1995) (30‑day PFR deadline is mandatory and jurisdictional)
- Bennett v. Spear, 520 U.S. 154 (1997) (agency action is "final" when it consummates the agency's decisionmaking process)