69 F.4th 179
4th Cir.2023Background:
- Petitioner Williams Mauricio Rodriguez Salgado, a Honduran national who entered without inspection in 2002, conceded removability and sought cancellation of removal based on hardship to his lawful permanent resident father and U.S. citizen daughter.
- An Immigration Judge denied cancellation of removal but granted voluntary departure.
- On December 21, 2020 the Board of Immigration Appeals (BIA) dismissed Salgado’s appeal as to cancellation and remanded to the IJ to reconsider voluntary departure in light of intervening precedent.
- The IJ reinstated voluntary departure on July 12, 2021; Salgado filed a petition for review on August 10, 2021.
- The government moved to dismiss the petition as untimely under 8 U.S.C. § 1252(b)(1), arguing the 30-day clock ran from the BIA’s December 21, 2020 order.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a BIA order affirming removability but remanding for voluntary departure is a "final order of removal" that starts the 30-day filing period under 8 U.S.C. § 1252(b)(1) | Salgado: Finality did not occur until the IJ resolved voluntary departure (July 2021), so his Aug 10, 2021 petition was timely | Government: The BIA's Dec 21, 2020 order affirming denial of cancellation made Salgado removable and started the 30-day clock; the August petition is untimely | The court held the BIA's Dec 21, 2020 order was a final order of removal for § 1252(b)(1) purposes and dismissed the petition for lack of jurisdiction |
Key Cases Cited
- Stone v. INS, 514 U.S. 386 (1995) (30-day filing period is jurisdictional and must be strictly enforced)
- Li v. Holder, 666 F.3d 147 (4th Cir. 2011) (BIA order denying relief but remanding on voluntary departure is an appealable final order of removal)
- Almutairi v. Holder, 722 F.3d 996 (7th Cir. 2013) (order resolving removability but remanding voluntary departure is final for review)
- Foti v. INS, 375 U.S. 217 (1963) (granting voluntary departure does not negate an outstanding final order of deportation/removal)
- Hih v. Lynch, 812 F.3d 551 (6th Cir. 2016) (failure to file within 30 days of BIA order that remands on voluntary departure is jurisdictionally fatal)
- Santos-de Jimenez v. Garland, 53 F.4th 173 (4th Cir. 2022) (reaffirming that § 1252(b)(1) time limit is mandatory and not subject to equitable tolling)