835 F.3d 880
9th Cir.2016Background
- Surinder Singh, an Indian national, had asylum, withholding, and CAT claims denied by an IJ; the IJ granted voluntary departure with an alternate order of removal to India.
- Singh appealed to the BIA; in June 2011 the BIA affirmed denial of relief but remanded solely for the IJ to provide voluntary-departure advisals. Singh did not petition this court within 30 days of that BIA decision.
- On remand the IJ gave advisals, again granted voluntary departure, and issued the alternate removal order; Singh appealed to the BIA but did not challenge any alleged errors made on remand.
- The BIA summarily dismissed the second appeal, declined to reinstate voluntary departure, and ordered Singh removed; Singh filed a timely petition for review of that BIA decision.
- The Ninth Circuit applied existing circuit precedent holding that a BIA remand solely for voluntary-departure advisals does not disturb finality of an otherwise-final removal order, and therefore Singh’s challenge to the merits became unreviewable after the initial 30-day filing period expired.
Issues
| Issue | Plaintiff's Argument (Singh) | Defendant's Argument (Lynch) | Held |
|---|---|---|---|
| Whether a BIA decision that affirms denial of relief but remands solely for voluntary-departure advisals prevents finality of an order of removal | Remand reopened reviewable proceedings; therefore the order was not final and Singh could seek review after the remand | A remand solely for voluntary-departure advisals does not affect finality; the BIA’s partial affirmance rendered the order final for judicial-review timing | Court held remand for voluntary-departure advisals does not affect finality; Pinto and Rizo control, so no jurisdiction because the 30-day window had passed |
| Whether the court has jurisdiction over Singh’s petition filed after the 30-day period following the BIA’s remand decision | Singh argued the later BIA action made the case reviewable and tolled the initial 30-day deadline | Government argued the 30-day deadline after the BIA’s June 2011 decision was jurisdictional and expired, barring review of the merits | Court held the 30-day filing deadline is jurisdictional; because Singh failed to file within 30 days of the BIA decision, the court lacked jurisdiction and dismissed the petition |
Key Cases Cited
- Pinto v. Holder, 648 F.3d 976 (9th Cir. 2011) (BIA remand solely for voluntary departure advisals results in a final order of removal)
- Rizo v. Lynch, 810 F.3d 688 (9th Cir. 2016) (reaffirming Pinto: remand for voluntary departure does not affect finality)
- Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (en banc) (held that BIA remand generally prevents finality, but declined to decide remands limited to voluntary departure)
- Batubara v. Holder, 733 F.3d 1040 (10th Cir. 2013) (concluding remand for voluntary departure does not defeat finality)
- Hih v. Lynch, 812 F.3d 551 (6th Cir. 2016) (same conclusion as Pinto and Rizo)
- Stone v. INS, 514 U.S. 386 (U.S. 1995) (statutory 30-day filing period for petitions for review is mandatory and jurisdictional)