Surinder Singh v. Loretta E. Lynch , 835 F.3d 880 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SURINDER SINGH, No. 12-74163
Petitioner,
Agency No.
v. A079-579-046
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submission Deferred February 3, 2016
Resubmitted September 1, 2016*
Seattle, Washington
Filed September 1, 2016
Before: Alex Kozinski, Diarmuid F. O’Scannlain,
and Ronald M. Gould, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 SINGH V. LYNCH
SUMMARY**
Immigration
The panel held that it lacked jurisdiction to review a
petition for review of a Board of Immigration Appeals’
decision following remand to an immigration judge for
voluntary departure advisals.
In petitioner’s first appeal to the Board, the Board
affirmed the IJ’s denial of asylum, withholding of removal,
and Convention Against Torture relief, but remanded to the
IJ for voluntary departure advisals. Petitioner did not file a
petition for review within 30 days of that Board decision.
On remand, the IJ again granted voluntary departure with
an alternate order of removal. Petitioner again appealed the
IJ’s decision to the Board, but did not allege that the IJ had
made errors of law or fact on remand. The Board summarily
dismissed petitioner’s second appeal, declined to reinstate
voluntary departure, and ordered petitioner removed.
Petitioner then filed a timely petition for review of that
decision.
Applying Rizo v. Lynch, 810 F.3d 688 (9th Cir. 2016), the
panel held that the Board’s decision remanding for further
proceedings as to voluntary departure did not affect the
finality of an otherwise-final order of removal, and the IJ’s
decision as to the merits of petitioner’s claims for relief
became unreviewable upon expiration of the 30 day period to
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SINGH V. LYNCH 3
petition for review to this court. Because petitioner did not
file a petition for review within that 30 day window, the panel
held that it lacked jurisdiction over the petition.
COUNSEL
Bart Klein, Law Offices of Bart Klein, Seattle, Washington,
for Petitioner.
Edward E. Wiggers, Jennifer L. Lightbody and Patrick J.
Glen, Senior Litigation Counsel; Donald E. Keener, Deputy
Director; Benjamin C. Mizer, Principal Deputy Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
PER CURIAM:
We must decide whether we have jurisdiction over a
petition for review of a Board of Immigration Appeals
decision remanding to the Immigration Judge solely for
voluntary departure proceedings.
I
On May 5, 2009, an Immigration Judge (IJ) denied Indian
citizen Surinder Singh’s applications for asylum, withholding
of removal, and protection under the Convention Against
Torture (CAT). The IJ granted Singh voluntary departure
with an alternate order of removal to India. Singh appealed
4 SINGH V. LYNCH
the IJ’s decision to the Board of Immigration Appeals (BIA).
On June 22, 2011, the BIA affirmed the denial of asylum,
withholding of removal, and CAT relief, but remanded the
case to the IJ “to provide all advisals required upon granting
voluntary departure.”1 Singh did not file a petition to this
court for review of the BIA order within 30 days of the June
2011 decision.
On remand, the IJ gave Singh the required advisals and
again granted voluntary departure with an alternate order of
removal to India. Singh again appealed the IJ’s decision to
the BIA; he did not allege that the IJ had made errors of law
or fact on remand. On November 29, 2012, the BIA
summarily dismissed Singh’s second appeal, declined to
reinstate voluntary departure, and ordered Singh removed to
India pursuant to the IJ’s alternate order. On December 20,
2012, Singh timely filed this petition for review.
II
Our jurisdiction to review a deportation decision is
limited to a “final order of removal.” 8 U.S.C.
§§ 1252(a)(1), (b)(9); Viloria v. Lynch, 808 F.3d 764, 767
(9th Cir. 2015); Alcala v. Holder, 563 F.3d 1009, 1016 (9th
Cir. 2009). A petition for review “must be filed not later than
30 days after the date of the final order of removal.” 8 U.S.C.
§ 1252(b)(1); Stone v. I.N.S., 514 U.S. 386, 405 (1995). This
deadline is “mandatory and jurisdictional.” Magtanong v.
Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007) (per curiam).
1
An IJ who grants voluntary departure is required to advise an alien that
he must, within 30 days of filing an appeal with the BIA, submit sufficient
proof that he has posted a voluntary departure bond with the Department
of Homeland Security. See 8 C.F.R. § 1240.26(c)(3), (3)(ii).
SINGH V. LYNCH 5
“A mandatory and jurisdictional rule cannot be forfeited or
waived, and courts lack the authority to create equitable
exceptions to such a rule.” Id. (citation omitted).
A
The text of the Immigration and Nationality Act (INA)
“does not explicitly define the term ‘final order of removal.’”
Shaboyan v. Holder, 652 F.3d 988, 990 (9th Cir. 2011) (per
curiam). However, INA § 101(a)(47), 8 U.S.C.
§ 1101(a)(47), “does define the term ‘order of deportation’
and establishes when such an order becomes final.”
Shaboyan, 652 F.3d at 990; see Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
§ 440, 110 Stat. 1214.2
The INA defines the term “order of deportation” as “the
order of the [IJ3] . . . concluding that the alien is deportable or
ordering deportation.” 8 U.S.C. § 1101(a)(47)(A).
2
We have explained that, in this context, “the terms ‘deportable’ and
‘deportation’ can be used interchangeably with the terms ‘removable’ and
‘removal,’ respectively.” Lolong v. Gonzales, 484 F.3d 1173, 1177 n.2
(9th Cir. 2007) (en banc); see Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, § 309(d)(2),
110 Stat. 3009 (“[A]ny reference in law to an order of removal shall be
deemed to include a reference to an order of exclusion and deportation or
an order of deportation.”).
3
The statute uses the term “special inquiry officer.” 8 U.S.C.
§ 1101(a)(47)(A). Regulations “in effect at the time Congress passed 8
U.S.C. § 1101(a)(47) defined ‘immigration judge’ to mean a ‘special
inquiry officer and may be used interchangeably with the term special
inquiry officer wherever it appears in this chapter.’” Molina-Camacho v.
Ashcroft, 393 F.3d 937, 940 (9th Cir. 2004) (citing 8 C.F.R. § 1.1(l)
(1996)), overruled on other grounds by Lolong, 484 F.3d 1175.
6 SINGH V. LYNCH
The order described under subparagraph (A)
shall become final upon the earlier of—
(i) a determination by the Board of
Immigration Appeals affirming such order; or
(ii) the expiration of the period in which the
alien is permitted to seek review of such order
by the Board of Immigration Appeals.
Id. § 1101(a)(47)(B). The statute does not define “affirming
such order.”
When the BIA affirms in full the IJ’s order of removal,
that decision obviously constitutes “a determination by the
[BIA] affirming such order,” and is thus a final order of
removal. See Abdisalan v. Holder, 774 F.3d 517, 521 (9th
Cir. 2014) (en banc). However, when the BIA does not
affirm in full, but rather affirms in part and remands, finality
is less clear. In such a case, is the BIA “affirming” the IJ’s
order of removal? The statutory text does not provide a clear
answer.
B
This question is not one of first impression for our court.
Under Pinto v. Holder, “the BIA’s decision denying asylum,
withholding of removal, and CAT protection but remanding
to the IJ for voluntary departure proceedings is a final order
of removal . . . and, effectively, the only order that we can
SINGH V. LYNCH 7
review.” 648 F.3d 976, 980 (9th Cir. 2011).4 Because the
BIA’s June 2011 decision remanding solely for voluntary
departure proceedings is a “final order of removal,” the IJ’s
order became unreviewable on July 23, 2011 upon expiration
of the 30 day period to petition for review to this court. In
light of Pinto and consistent with the Sixth and Tenth
Circuits, we must conclude that we lack jurisdiction over
Singh’s current petition. See Hih v. Lynch, 812 F.3d 551, 554
(6th Cir. 2016); Batubara v. Holder, 733 F.3d 1040, 1042–43
(10th Cir. 2013).
4
After Pinto was decided, an en banc panel of our court issued
Abdisalan. Abdisalan concluded that, “[w]hen the BIA remands to the IJ
for any reason, no final order of removal exists until all administrative
proceedings have concluded.” 774 F.3d at 526. However, we explicitly
declined to address remands for voluntary departure and did not overrule
Pinto. See id. at 526 n.8 (“Under the facts of this case, we need not revisit
our rule that the BIA’s decision is a final order of removal when it
remands for consideration of voluntary departure but denies all other
forms of relief.”).
Recognizing that Abdisalan’s broadly stated conclusion created some
tension with Pinto, we ordered supplemental briefing on whether Pinto
should be overruled in light of the reasoning and holding of Abdisalan.
While that briefing was pending, another three-judge panel decided Rizo
v. Lynch, 810 F.3d 688 (9th Cir. 2016). Rizo concluded that “Pinto
remains the law of the Circuit.” Id. at 691. Consequently, the Rizo panel
determined that a “BIA remand for further proceedings as to voluntary
departure does not affect the finality of an otherwise-final order of
removal.” Id. at 692. We directed the parties to address Rizo in their
supplemental briefs. Both the government and Singh argued that Rizo was
wrongly decided. A judge requested a vote on whether to rehear Rizo en
banc, but a majority of nonrecused active judges did not vote in favor of
rehearing en banc. Rizo and Pinto thus remain law of the circuit, and our
three-judge panel is bound to apply them faithfully.
8 SINGH V. LYNCH
Under the circumstances, Singh remains subject to
immediate removal to India.
DISMISSED.