Yasser Hih v. Loretta Lynch, 812 F.3d 551

Background

Petitioner Yasser Hih, a Palestinian national who overstayed a U.S. visa, sought asylum, withholding of removal, and CAT relief, claiming past work with the Palestinian Authority and threats from Hamas.
The Immigration Judge (IJ) denied relief based on an adverse credibility determination tied to discrepancies between Hih’s 2002 and 2009 asylum applications and other inconsistent testimony; the IJ granted voluntary departure.
The Board of Immigration Appeals (BIA) affirmed the IJ’s denial of asylum and related relief on January 18, 2013, but remanded solely for proper voluntary-departure advisals.
Hih did not seek judicial review within 30 days of the BIA’s January 2013 decision; instead he returned to the IJ, withdrew voluntary departure at a remand hearing, and appealed the ensuing removal order to the BIA.
The BIA construed Hih’s later filing as a motion to reconsider its 2013 order and denied it as untimely under 8 C.F.R. § 1003.2(b)(2).
The Sixth Circuit held it lacked jurisdiction to review the BIA’s January 18, 2013 final order because Hih failed to file a timely petition for review within the statutory 30-day period; Hih abandoned any challenge to the 2015 denial of reconsideration by not briefed it.

Issues

Issue	Hih's Argument	Government's Argument	Held
Whether the court has jurisdiction to review the BIA’s Jan. 18, 2013 order (which affirmed denial of asylum but remanded for voluntary-departure advisals)	Hih effectively preserved review; Giraldo permits dismissal without prejudice and contemplates later review, so jurisdiction should be available	The Jan. 18, 2013 order was a final order of removal for §1252 purposes; Hih failed to file a petition for review within 30 days, depriving the court of jurisdiction	Court lacks jurisdiction to review the 2013 BIA order because Hih did not file a timely petition for review
Whether Giraldo compels permitting late review here	Giraldo’s dismissal without prejudice shows courts may permit later review after voluntary-departure resolution	Giraldo involved a timely-filed petition (so the court had jurisdiction); it does not authorize excusing untimely filing when no timely petition was ever filed	Giraldo does not authorize creating jurisdiction where none existed; it does not save Hih’s untimely filing
Whether the BIA’s remand for voluntary-departure advisals prevented the 2013 order from being final	Hih implies remand meant the order was not final for review purposes	The remand solely addressed voluntary-departure advisals; the removal order was final for review of asylum-related determinations	The remand did not prevent finality; the 2013 order was final for appellate-timeliness purposes
Whether the court may review the BIA’s 2015 denial of reconsideration	Hih argues the BIA failed to consider corroborating evidence and merits of asylum claim	Government argues the 2015 order was a procedural denial as untimely and that Hih’s briefing challenges the 2013 merits order, not the 2015 procedural ruling	Hih abandoned any challenge to the 2015 decision by failing to raise/brief that specific issue; court dismissed petition

Key Cases Cited

Giraldo v. Holder, 654 F.3d 609 (6th Cir. 2011) (court dismissed timely petition without prejudice where BIA remanded only for voluntary-departure application)
Prekaj v. I.N.S., 384 F.3d 265 (6th Cir. 2004) (statutory deadline for filing petition for review is mandatory and jurisdictional)
Batubara v. Holder, 733 F.3d 1040 (10th Cir. 2013) (BIA order remanding for voluntary-departure advisals is final for §1252 timeliness; untimely petition deprives court of jurisdiction)
Hakim v. Holder, 611 F.3d 73 (1st Cir. 2010) (dismissal without prejudice of timely petition where remand concerns voluntary departure)
Almutairi v. Holder, 722 F.3d 996 (7th Cir. 2013) (criticizing dismissal-without-prejudice approach and recommending staying timely petitions instead)
United States v. Johnson, 440 F.3d 832 (6th Cir. 2006) (issues not raised in opening brief are forfeited/abandoned)