Mayra Holguin-Mendoza v. Loretta Lynch

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
___________________
Fifth Circuit
FILED
August 25, 2016
No. 16-60294
___________________ Lyle W. Cayce
Clerk
MAYRA AIDE HOLGUIN-MENDOZA, also known as Mayra Ayde Holguin-
Mendoza,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
_______________________
Petition for Review of an Order of the
Board of Immigration Appeals
_______________________
Before DENNIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:
The respondent asks us to dismiss the petition of Mayra Holguin-
Mendoza for lack of jurisdiction. Specifically, the respondent asserts that the
decision of the Board of Immigration Appeals (BIA) is not a final reviewable
order, and, alternatively, that the petition should be dismissed for prudential
reasons. We disagree.
This court has not yet decided the issue of the finality of a BIA decision
which resolves the merits of an appeal but remands for further proceedings
only as to voluntary departure. However, as the respondent acknowledges,
several other circuits have concluded that such a decision is a final order of
removal for purposes of judicial review. See Batubara v. Holder, 733 F.3d 1040,
1041-42 (10th Cir. 2013); Almutairi v. Holder, 722 F.3d 996 (7th Cir. 2013);
Rodas-Leon v. Att’y Gen. of the U.S., 475 F. App’x 430, 431 (3d Cir. 2012); Li v.
Holder, 666 F.3d 147, 148-49 (4th Cir. 2011); Giraldo v. Holder, 654 F.3d 609,
614 (6th Cir. 2011); Pinto v. Holder, 648 F.3d 976, 986 (9th Cir. 2011); Alibasic
v. Mukasey, 547 F.3d 78, 82-84 (2d Cir. 2008). Further, in Hakim v. Holder,
the First Circuit assumed that such a decision was a final order of removal,
but declined jurisdiction for prudential reasons. Hakim, 611 F.3d 73, 78-79
(1st Cir. 2010). We find these cases to be persuasive authority and likewise
conclude that a BIA decision which resolves the merits of an appeal but
remands for further proceedings as to voluntary departure is a final order of
removal for purposes of judicial review. We further conclude that the question
of whether Hoguin-Mendoza has a colorable due process claim is sufficient to
allow her petition for review to go forward.
IT IS ORDERED that respondent’s opposed motion to dismiss the
petition for review for lack of jurisdiction is DENIED.