Otto Perez Castillo v. Matthew Whitaker

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OTTO ANAEL PEREZ CASTILLO, No. 14-73017
Petitioner, Agency No. A070-069-532
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 18, 2019
San Francisco, California
Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.
Petitioner Otto Anael Perez Castillo petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). Respondent argues that we must dismiss for lack of jurisdiction. We
hold that we lack jurisdiction over Perez Castillo’s petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“[W]hether we have jurisdiction is a purely legal question, which we
determine de novo.” Abdisalan v. Holder, 774 F.3d 517, 521 (9th Cir. 2014), as
amended (Jan. 6, 2015) (en banc). We have “jurisdiction to review ‘a final order
of removal.’” Id. at 523 (quoting 8 U.S.C. § 1252(a)(1)). A petition for review of
an order of removal “must be filed not later than 30 days after the date of the final
order of removal.” 8 U.S.C. § 1252(b)(1). “This time limit is ‘mandatory and
jurisdictional.’” Abdisalan, 774 F.3d at 521 (quoting Stone v. INS, 514 U.S. 386,
405 (1995)).
In Pinto v. Holder, 648 F.3d 976, 980 (9th Cir. 2011), we held that a BIA
decision affirming a finding of removability that remands to the IJ only “to
consider [the petitioner’s] eligibility for voluntary departure” was a final order of
removal from which a petition for review could be brought and was, “effectively,
the only order that we [could] review.” Id. In Singh v. Lynch, 835 F.3d 880, 883
(9th Cir. 2016), we applied Pinto and held that because a BIA decision remanding
solely for voluntary departure proceedings was a final order of removal, it started
the clock for appeal purposes. We therefore dismissed as untimely a petition filed
more than 30 days after that BIA order. Id.Here, Perez Castillo did not file his petition for review within 30 days of the
BIA’s decision affirming the IJ’s denial of his claims for asylum, withholding, and
CAT protection, which remanded only on voluntary departure. Under Singh, his
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petition is untimely,1 and we therefore lack jurisdiction over Perez Castillo’s
petition for review.
DISMISSED.
1
In light of Pinto, which involved a remand to consider a petitioner’s eligibility for
voluntary departure, see Pinto, 648 F.3d at 980, we decline to distinguish Singh on
the grounds that Singh involved only a remand for advisals on voluntary departure,
rather than other voluntary departure proceedings, as Petitioner urges. See Singh,
835 F.3d at 881-82; see also Abdisalan, 774 F.3d at 526 n.8 (“[W]e 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.”).
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