Summary
In Holguin-Mendoza, we held 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."
Summary of this case from Garcia-Diaz v. SessionsOpinion
No. 16–60294
08-25-2016
Mayra Aide Holguin–Mendoza, also known as Mayra Ayde Holguin–Mendoza, Petitioner v. Loretta Lynch, U.S. Attorney General, Respondent
Melissa Salazar, Esq., Whittenburg & Strange, P.C., Lubbock, TX, for Petitioner. Surell Brady, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Melissa Salazar, Esq., Whittenburg & Strange, P.C., Lubbock, TX, for Petitioner.
Surell Brady, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
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 Fed.Appx. 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 Holguin–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.