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Immigration Law

CA9 on Finality, Jurisdiction: Abdisalan v. Holder

"When does an order of removal become “final” for the purpose of seeking judicial review? Panels of our court have reached varying conclusions, creating unnecessary confusion as to the timeliness of petitions for review and our jurisdiction to entertain them. We reheard this matter en banc to clarify the issue of finality of the Board of Immigration Appeals’ (“BIA”) decisions. Today, we adopt a straightforward rule: when the Board of Immigration Appeals issues a decision that denies some claims but remands any other claims for relief to an Immigration Judge (“IJ”) for further proceedings (a “mixed” decision), the BIA decision is not a final order of removal with regard to any of the claims, and it does not trigger the thirty-day window in which to file a petition for review. As a result, we have jurisdiction to consider petitioner’s asylum claim, but we remand to the BIA in light of Singh v. Holder, 649 F.3d 1161 (9th Cir. 2011) (en banc). ... 

Therefore, we hold that any pending petitions rendered premature by today’s decision shall be treated as automatically ripening into timely petitions upon the completion of remanded proceedings, regardless of whether those proceedings have already concluded. Under this rule, Abdisalan’s premature 2010 petition ripened upon the conclusion of her administrative proceedings in 2011, which means we have jurisdiction over both of her petitions. We take no position on the current circuit split regarding treatment of premature petitions generally. Our holding extends only to petitioners whose petitions for review were filed in this court before today’s date." - Abdisalan v. Holder, Dec. 15, 2014.  [Hats off to Vicky Dobrin, Hilary Han, Deborah S. Smith and Charles Roth!]