Qingyun Li v. Eric Holder, Jr. , 666 F.3d 147 ( 2011 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
QINGYUN LI, 
Petitioner,
v.
 No. 10-2333
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals.
Argued: October 27, 2011
Decided: December 2, 2011
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Petition dismissed without prejudice by published opinion.
Judge Agee wrote the opinion, in which Judge Wilkinson and
Judge Shedd joined.
COUNSEL
ARGUED: Yueh-Mei Wu Rowan, ROWAN & ASSO-
CIATES, P.C., Fairfax, Virginia, for Petitioner. Daniel Eric
Goldman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Tony West,
Assistant Attorney General, Civil Division, William C.
2 LI v. HOLDER
Peachey, Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Respondent.
OPINION
AGEE, Circuit Judge:
I.
Qingyun Li, the petitioner in this case, seeks review of an
order of the Board of Immigration Appeals ("BIA") remand-
ing her case to the Immigration Judge ("IJ"). The government
urges us to dismiss for lack of jurisdiction. As discussed
below, we conclude that this court has jurisdiction over the
petition, but nonetheless decline to exercise that jurisdiction
for prudential reasons. Accordingly, we dismiss the petition
without prejudice to Li’s right to seek review at a later time.
II.
Li, a native and citizen of the Republic of China, illegally
entered the United States in August 1998. She subsequently
applied for adjustment of status based on an approved I-140
visa petition filed by her employer. After proceedings not rel-
evant to this appeal, the Department of Homeland Security
("DHS") denied her application, and on July 27, 2007, the
DHS served her with a Notice to Appear. The Notice charged
Li with removability as an alien present in the United States
without being admitted or paroled. Before the IJ, Li conceded
that she was removable as charged and renewed her applica-
tion for adjustment of status. On April 27, 2009, the IJ found
Li removable as charged, denied her application for adjust-
ment of status, and granted her the privilege of voluntary
departure with an alternate order of removal to China.
LI v. HOLDER 3
On October 28, 2010, the BIA upheld the denial of Li’s
application for adjustment of status and dismissed her appeal
from the IJ’s decision.1 Finding that the IJ failed to provide Li
"with the required advisals," however, the BIA remanded "for
the Immigration Judge to grant a new period of voluntary
departure and to provide the required advisals." (J.A. 24.) The
BIA’s opinion concluded by stating that the "record is
remanded for further proceedings consistent with the forego-
ing opinion and for the entry of a new decision." (J.A. 24.) Li
filed a timely petition for review with this Court.
The government contends that this Court lacks jurisdiction
over Li’s petition, an argument that we squarely reject based
on prior precedent that is binding on our panel and undis-
turbed by any intervening Supreme Court decision. However,
following the approach employed by the First and Sixth Cir-
cuits in similar circumstances, we nonetheless dismiss the
petition without prejudice for prudential reasons.
III.
A.
This Court reviews legal questions, such as the existence of
its own jurisdiction, de novo. Kporlor v. Holder, 597 F.3d
222, 225 (4th Cir. 2010). In this case, the government asks us
1
The reasoning of the IJ and the BIA with regard to Li’s adjustment
application was as follows: Li’s otherwise valid I-140 petition was auto-
matically revoked when the petitioning employer went out of business,
based on 8 C.F.R. § 205.1(a)(3)(iii)(D). Because she had no valid I-140
petition, she was not eligible to adjust status. Because that finding dis-
posed of her adjustment application, the BIA did not address the IJ’s con-
clusion that Li was not permitted to change employers under the
portability provision in section 204(j) of the Act, 8 U.S.C. § 1154(j). Thus,
the analysis of Li’s claim for adjustment of status turns on the interplay,
if any, of the automatic revocation regulation and the portability statute.
Because we decline to exercise jurisdiction at this time, we express no
opinion on the merits of Li’s petition.
4 LI v. HOLDER
to hold that we lack jurisdiction over a BIA order remanding
for a grant of voluntary departure because it is not a final
order of removal. Two prior decisions of this Court, however,
have held that BIA orders substantially identical to the instant
one are final and immediately appealable.
First, in Saldarriaga v. Gonzales, 402 F.3d 461 (4th Cir.
2005), the government argued that there was no final order of
removal under 8 U.S.C. § 1252(c)(1) where the BIA ordered
removal, but remanded to the IJ to allow the petitioner an
opportunity to apply for voluntary departure. Id. at 465 n.2.
The Court rejected this argument and found the order immedi-
ately appealable, citing to decisions of the Eleventh, Ninth
and Sixth Circuits with "persuasive" reasoning on the issue.
Id.; see also Del Pilar v. United States Attorney General, 326
F.3d 1154, 1156-57 (11th Cir. 2003) (an order of removal was
a final appealable order, despite the fact that the BIA was
remanding to the Immigration Judge for the limited purpose
of permitting Del Pilar to designate a country of removal);
Castrejon-Garcia v. INS, 60 F.3d 1359, 1361-62 (9th Cir.
1995) (BIA order reversing an IJ’s grant of suspension of
deportation and remanding the case "for a determination of
voluntary departure in lieu of deportation" was a final order
of deportation); Perkovic v. INS, 33 F.3d 615, 618-19 (6th
Cir. 1994) (BIA order reversing an IJ’s grant of asylum and
remanding the case was a final order of deportation).
Similarly, in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th
Cir. 2007), the Court relied on Saldarriaga in holding that a
BIA order denying relief from removal but remanding the
case to the IJ to determine an alien’s eligibility for voluntary
departure is a final order of removal conferring jurisdiction.
Id. at 194 n.4.
This Court’s prior decisions in Saldarriaga and Perez-
Vargas are binding on this panel. United States v. Collins, 415
F.3d 304, 311 (4th Cir. 2005) ("[a] decision of a panel of this
court becomes the law of the circuit and is binding on other
LI v. HOLDER 5
panels"). Those decisions plainly address the jurisdictional
issue here, and compel the conclusion that we have jurisdic-
tion over Li’s petition.
The government, however, urges this Court to reconsider
its holdings in Saldarriaga and Perez-Vargas in light of "in-
tervening legal developments," specifically, the Supreme
Court’s decision in Dada v. Mukasey, 554 U.S. 1 (2008) and
the promulgation of 8 C.F.R. § 1240.26.2 A prior panel’s deci-
sion may be overruled by "a superseding contrary decision of
the Supreme Court." Collins, 415 F.3d at 311 (citing
Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th
Cir. 1993)). In Etheridge, this Court determined that a subse-
quent Supreme Court decision "specifically rejected the rea-
soning on which [the prior decision] was based" and thus, the
prior decision was "no longer controlling." 9 F.3d at 1090-91.
The question here, then, is whether Dada specifically
rejected the reasoning on which the prior panel decisions were
based which, in turn, were based on the out-of-circuit author-
ity. Although the rationale of Dada, as well as the new regula-
tion, may impact this case’s ultimate disposition, Dada did
not "specifically reject[ ] the reasoning," see Etheridge, 9 F.3d
at 1090-91, on which Saldarriaga and Perez-Valdez were
based, either expressly or implicitly.
In Dada, the Supreme Court discussed the nature of a vol-
untary departure arrangement between an alien and the gov-
ernment, describing it as "an agreed-upon exchange of
benefits, much like a settlement agreement. In return for
anticipated benefits, including the possibility of readmission,
2
This regulation took effect January 20, 2009, see 8 C.F.R. § 1240.26,
and applies to departure orders issued on or after the effective date. Dada,
554 U.S. at 20. The government argues that it applies to Li’s case and we
agree. The IJ’s initial voluntary departure order was issued on April 27,
2009, after the effective date of the regulation, and any order issued on
remand (if considered the operative order) would also be after the effec-
tive date.
6 LI v. HOLDER
an alien who requests voluntary departure represents that he
or she ‘has the means to depart the United States and intends
to do so’ promptly." Id. at 19 (citing 8 U.S.C. § 1229c(b)(1)).
The alien in Dada made a voluntary departure arrangement,
and then two days before the expiration of the departure
period, sought to withdraw his request for voluntary departure
and filed a motion to re-open removal proceedings based on
"new and material evidence." 554 U.S. at 6-7. The BIA
denied the motion to reopen on the ground that petitioner had
overstayed his voluntary departure period. Relying on 8
U.S.C. § 1229c(d), the BIA concluded that an alien who fails
to voluntarily depart in a timely fashion "is statutorily barred
from applying for and receiving certain forms of discretionary
relief, including adjustment of status." Id. at 7. It did not rule
on petitioner’s motion to withdraw the voluntary departure
request.
The Supreme Court disagreed with the BIA’s conclusion.
Instead, the Court held that the proper way to protect both the
agreed-upon exchange of benefits that voluntary departure
constitutes and the alien’s statutory right to file a motion to
reopen is to allow an alien to withdraw the request for volun-
tary departure before expiration of the departure period. Pur-
suant to this approach, an alien may agree to voluntary
departure, but unilaterally withdraw the request before expira-
tion of the departure period and pursue instead a motion to
reopen. Id. at 20-21. If the alien pursues such a motion, he
"gives up the possibility of readmission and becomes subject
to the IJ’s alternate order of removal." Id. at 21. The Court
also noted that this is the approach taken in the regulation
relied upon by the government in the instant case, 8 C.F.R.
1240.26. See id. at 20.
The new regulation, moreover, requires as a condition to
being granted voluntary departure prior to completion of
removal proceedings, that the petitioner "waive[ ] appeal of
all issues." 8 C.F.R. § 1240.26(b)(1)(i)(D). The regulation
LI v. HOLDER 7
also dictates that the filing of a petition for review "or any
other judicial challenge to the administratively final order"
results in the automatic termination of the grant of voluntary
departure and that "the alternate order of removal . . . shall
immediately take effect." 8 C.F.R. § 1240.26(i). As noted, the
regulation is applicable to Li. See supra at n. 2.
In determining whether Dada effectively overruled Saldar-
riaga and Perez-Vargas, it is of course significant that Dada
did not address the jurisdictional issue here. Indeed, Dada
was not tasked with deciding any jurisdictional question, and
thus clearly did not explicitly overrule the jurisdictional hold-
ings of Saldarriaga and Perez-Valdez. Nor did Dada reject
the reasoning for the jurisdictional holdings of those cases.
The assertion of jurisdiction in this Court’s prior precedent
(and the three out-of-circuit cases on which this Court relied)
is based on the fact that a final order of removal (or its func-
tional equivalent, such as the denial of adjustment at stake
here) is an appealable order, even if the details of a voluntary
departure remain to be worked out. The government is correct
that Dada holds an alien can be forced to choose (at least
within the voluntary departure period) between voluntary
departure and the right to file for administrative relief, but
Dada does not address—let alone reject—the reasoning of our
prior cases so as to render them non-binding on us.
B.
Having concluded that we have jurisdiction, we now turn
to the government’s alternative argument, in which it urges us
to follow the approach of the First and Sixth Circuits in simi-
lar circumstances. Specifically, in post-Dada decisions, those
courts determined that the exercise of jurisdiction would be
inconsistent with the scheme envisioned by Dada and the new
regulation and thus declined to exercise jurisdiction for "pru-
dential reasons." Hakim v. Holder, 611 F.3d 73, 79 (1st Cir.
2010); Giraldo v. Holder, 654 F.3d 609, 610, 616 (6th Cir.
2011).
8 LI v. HOLDER
In Hakim, the First Circuit held that judicial review of a
BIA decision following remand to the IJ for voluntary depar-
ture consideration would be premature and for "prudential
reasons" declined to exercise jurisdiction. 611 F.3d at 79. The
BIA decision at issue in Hakim reversed the IJ’s grant of
Hakim’s application for asylum and withholding of removal
and remanded to the IJ to determine whether Hakim qualified
for voluntary departure consideration.
In electing not to assert jurisdiction, the Hakim court inter-
preted the new regulations as "assum[ing] a chronological
order, i.e., that the grant of voluntary departure precedes the
filing of a petition for judicial review." Id. (emphasis in origi-
nal). Thus, to allow juridical review to occur while an alien’s
request for voluntary departure remained pending before the
IJ would permit the alien to circumvent the intent of the regu-
lation and the rationale of Dada, whereby an alien may seek
voluntary departure or post-order relief, but not both. Judicial
review would also deprive the government of the benefit it
received in agreeing to voluntary departure – "a prompt and
costless departure." Id. (citing Dada, 554 U.S. at [19-20]).
More recently, our colleagues in the Sixth Circuit adopted
the same approach in Giraldo, 654 F.3d 609. In that case, the
alien and her minor daughter petitioned for review of a BIA
order which had vacated the IJ’s order granting withholding
of removal and remanded to allow petitioner to apply for vol-
untary departure. Id. at 610. After concluding that it had juris-
diction to review the BIA’s order, the Sixth Circuit agreed
with the Hakim court’s conclusion that it was "more prudent
to decline to exercise jurisdiction at this time." Id. at 616, 618.
As it noted, "[i]f Petitioners are granted voluntary departure,
they ‘can at that point decide whether to comply with the rele-
vant departure provisions, 8 U.S.C. § 1129c(b), or else to file
a petition for judicial review’ of their application for with-
holding of removal." Id. (citing Hakim, 611 F.3d at 79).
LI v. HOLDER 9
We recognize, as did the Hakim and Giraldo Courts, that
Dada and the new voluntary departure regulation modify the
landscape governing voluntary departures. An alien is now
permitted to withdraw from a voluntary departure agreement
to pursue a motion to reopen. If the alien makes the "hard
choice" to do so, however, the benefits of voluntary departure
will no longer be available. Dada, 554 U.S. at 21. Thus, an
alien is now required to choose between those two alterna-
tives, i.e., pursuing a motion to reopen (or a judicial chal-
lenge), or voluntarily departing. The new regulation,
additionally, specifically compels an alien to choose between
voluntary departure and seeking judicial review. 8 C.F.R.
§ 1240.26(b)(i)(D) (allowing grant of voluntary departure
prior to completion of removal proceedings only if the alien
"[w]aives appeal of all issues"); 8 C.F.R. § 1240.26(i) ("any
grant of voluntary departure shall terminate automatically
upon the filing of [a petition for review] or other judicial chal-
lenge").3
An order in this case dismissing Li’s petition without preju-
dice would be consistent with the regulation and Dada,
because after remand to the IJ (assuming no factual circum-
stances have changed that would allow Li to avoid removabil-
ity), a voluntary departure date would be set. At that point, Li
would be faced with the same choice that all aliens with the
option of voluntary departure (and subject to the new regula-
tion) face. See 8 C.F.R. § 1240.26(i) (setting forth the avail-
able options, among which Li will have to choose).
If we were to review Li’s petition at this juncture, however,
she would be spared having to make that "hard choice." See
3
As described at oral argument, the regulation also allows a third option
in cases where an IJ enters a voluntary departure order, which is to file a
petition for judicial review of the BIA’s decision, but then leave the coun-
try within 30 days. If an alien elects this option (and complies with certain
other notification requirements), she will not be deemed to have departed
under an order of removal. See 8 C.F.R. § 1240.26(i).
10 LI v. HOLDER
Dada, 554 U.S. at 21. Instead, she would be permitted to both
challenge the removal order (before the BIA and this Court)
and, in the event that she loses on that issue, to go back to the
IJ for a voluntary departure order and receive the benefit of
that arrangement. Thus Li would be placed in a more favor-
able situation than other aliens similarly situated. It is this
result that is inconsistent with both Dada and the new regula-
tion. Thus, we agree with the approach followed by the First
and Sixth Circuits, and prudentially decline to exercise our
jurisdiction over Li’s petition.
Li argues that we should instead follow the Ninth Circuit’s
decision in Pinto v. Holder, 648 F.3d 976 (9th Cir. 2011),
which concluded it had jurisdiction over the petition for
review of a similar BIA order and chose to exercise that juris-
diction. We decline to follow Pinto for the reasons set forth
above, but also because it is materially distinguishable on its
facts. Significantly, 8 C.F.R. § 1240.26 did not apply in Pinto
because the alien filed his petition for review three years prior
to the regulation’s effective date. Id. at 985; see also id. at 983("the new regulation is not directly applicable to Pinto’s peti-
tion because it was not in force when Pinto petitioned for
review"). Indeed, the Pinto court itself recognized this as a
critical distinction between the case before it and Hakim. Id.
at 985. Unlike the petitioner in Pinto, however, Li’s petition
for review was filed after the regulation’s effective date, and
both the prior order from the IJ granting voluntary departure,
and any subsequent order, are subject to the new regulation.
See supra at note 2.
The Pinto court also noted that, regardless of the effective
date, the regulation by its terms did not apply to Pinto’s situa-
tion because it "addresses only those cases in which an alien
files a petition for review after that alien has been granted
voluntary departure." Id. at 984 (emphasis in original). Pinto
had filed a petition for review before any voluntary departure
order had ever been entered.
LI v. HOLDER 11
By contrast, Li was granted voluntary departure and then
filed a petition for review, the order of events anticipated by
the regulation. It is solely because the "required advisals"
were not properly given that her case is being remanded for
a new voluntary departure order. Notably, the Pinto court
rejected the Hakim court’s approach in part because of this:
[t]he regulation plainly does not require immigrants
to forgo a petition for review before they have been
granted voluntary departure, so we decline to follow
the First Circuit and effectively force immigrants to
choose between judicial review and the hope of vol-
untary departure. Dada similarly refused to make
immigrants choose between accepting voluntary
departure and the possibility of a motion to reopen.
Pinto, 648 F.3d at 985.
In this case, unlike in Pinto and alleviating the Pinto
Court’s concern, it is not the "hope of voluntary departure"
that Li will be choosing after remand, cf. id., but voluntary
departure. The IJ has already determined she is eligible, and
it is only because the IJ did not properly warn her of the con-
sequences of such a choice pursuant to the new regulation that
a new voluntary departure order would be set on remand.
Indeed, the government acknowledged at oral argument that
it was "assured" that Li would be offered voluntary departure
when she appeared again before the IJ, based on both the
BIA’s decision and this Court leaving that decision undis-
turbed. (Tr. of October 27, 2011 Oral Arg. at 21:57-22:32.)
Thus, this case also differs from Pinto in that there the peti-
tioner had only "the hope of voluntary departure," while Li is
entitled to it.
For all of these reasons, we prudentially decline to exercise
jurisdiction over Li’s petition at this time.4 We deny it without
4
We recognize that the general rule is that federal courts have an "obli-
gation . . . to exercise the jurisdiction given them." Colo. River Water
12 LI v. HOLDER
prejudice, however, to Li’s later ability to file for review of
the issues raised in the BIA’s order should that be her choice
after receiving the new voluntary departure date.5
IV.
For the foregoing reasons, we dismiss the petition without
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). However,
various prudential doctrines allow courts to decline to exercise jurisdiction
in limited circumstances (the abstention doctrines, ripeness, etc.). As the
First and Sixth Circuits have recognized in similar situations, we believe
that the unusual facts presented, combined with the deference we owe to
the goals of the regulatory process, have created circumstances that are
analogous to those justifying abstention in other cases.
5
The Pinto Court was concerned about whether judicial review would
be available later to Pinto if the court declined to exercise jurisdiction.
Indeed, it criticized the Hakim Court on this ground:
[I]n [declining jurisdiction], the [Hakim] court ignored the 30-day
deadline for petitioning for review of final orders, which in our
circuit can begin well before the grant of voluntary departure.
The First Circuit did not explain how it could assert jurisdiction
over Hakim’s petition for review on the merits if he was denied
voluntary departure (or decided not to accept voluntary departure
if it were granted) and sought to renew juridical review.
648 F.3d at 985.
At oral argument in this case, however, the government disagreed that
Li would be later barred from challenging before this Court the merits
issue she raises in this appeal, i.e., that the IJ’s decision denying her
adjustment of status was erroneous. Counsel for the government offered
a procedural mechanism that would allow Li to later seek such judicial
review of the adjustment decision (i.e., the portability decision). Specifi-
cally, counsel explained that the BIA could reissue its decision to restart
the 30-day period for filing a petition for review. Such a reissue would be
appropriate because, although Li has timely and properly raised the issue
before this Court, we have declined to address it purely for prudential rea-
sons and without prejudice. Of course, as counsel for the government
noted during argument, Li’s circumstances prior to her new hearing before
the IJ might well change, and result in a new application for relief from
removal, which could potentially moot the issue she raises in this appeal.
LI v. HOLDER 13
prejudice.
PETITION DISMISSED WITHOUT PREJUDICE