“Accordingly, 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....” Pinto v. Holder, 648 F.3d 976, 980 (9th Cir.2011).The government, however, submits that this case is controlled by our recent decision in Abdisalan v. Holder, 774 F.3d 517 (9th Cir.2014). In that case, we held that a decision by the BIA cannot be a final order of removal until all administrative proceedings have concluded, even if the BIA decision finalizes certain claims while remanding others to the IJ for further proceedings.
As the Ninth Circuit aptly noted when confronted with this question, a "straightforward reading of [the] text indicates that an order of removal cannot become final for any purpose when it depends on the resolution of further issues by the IJ on remand," including the completion and review of background checks. Abdisalan v. Holder , 774 F.3d 517, 523 (9th Cir. 2014) (en banc).For starters, the INA consistently employs the definite article "the" in referring to "the order" of removal.
And we have held that "an order of removal cannot become final for any purpose when it depends on the resolution of further issues by the IJ on remand." Abdisalan v. Holder, 774 F.3d 517, 523 (9th Cir. 2014) (en banc), as amended (Jan. 6, 2015). In this case, the grant of administrative closure would eliminate the immediate possibility of removal because the agency would "temporarily remove [the] case from [the] Immigration Judge's active calendar" and "close removal proceedings."
Other circuits have similarly interpreted judicial review provisions in § 1252 to require a consolidated, streamlined review process, concluding that incomplete agency withholding proceedings prevent an order of removal from being final for purposes of judicial review. See Abdisalan v. Holder, 774 F.3d 517, 526 (9th Cir. 2014) (en banc) (holding that in mixed decisions in which the Board affirms some decisions by the immigration judge but remands others for further consideration, "no final order of removal exists until all administrative proceedings have concluded");see also Luna-Garcia, 777 F.3d at 1186 (collecting cases affirming that "pending applications for relief render an order of removal nonfinal"); cf. Kouambo v. Barr, 943 F.3d 205, 214 (4th Cir. 2019) (collecting cases holding "that when the [Board] remands a case to the [immigration judge] for background checks [in the process of granting withholding-only relief], its decision is not a final order of removal for purposes of judicial review" until background checks are complete).
In ordinary removal proceedings, the Board often affirms a conclusion that an immigrant is removable but remands for more proceedings on the immigrant's claims for withholding of removal under § 1231(b)(3)(A) or CAT. See, e.g., Chupina v. Holder, 570 F.3d 99, 103-04 (2d Cir. 2009) (per curiam); Kouambo v. Barr, 943 F.3d 205, 208-09 (4th Cir. 2019); Abdisalan v. Holder, 774 F.3d 517, 520-21 (9th Cir. 2014) (en banc); Mahecha-Granados v. Holder, 324 F. App'x 735, 737-39 (10th Cir. 2009). Such a mixed decision might have been considered a "final order of removal" under AEDPA's definition because it "affirm[ed]" the "order" that the immigrant was "deportable" and required more proceedings only on the withholding issue.
We review jurisdictional and legal questions in the context of immigration proceedings de novo. Bonilla v. Lynch , 840 F.3d 575, 581 (9th Cir. 2016) ; Abdisalan v. Holder , 774 F.3d 517, 521 (9th Cir. 2014). We review an IJ's negative reasonable fear determination for substantial evidence.
See 8 C.F.R. § 1208.16(c); cf. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079-82 (9th Cir. 2015) (holding that the petitioner was entitled to CAT protection based on evidence that she had suffered repeated sexual abuse at the hands of government officials specifically because of her sexual identity and unrebutted country conditions evidence showing that such violence continues to plague transgendered women in Mexico). We lack jurisdiction to consider Li's initial application for asylum because she did not petition this Court for review within 30 days of the BIA's dismissal of her appeal. 8 U.S.C. § 1252(b)(1); see also Abdisalan v. Holder, 774 F.3d 517, 521 (9th Cir. 2014) (en banc) (stating, "This time limit is mandatory and jurisdictional.") (internal quotation marks and citation omitted). We deny Petitioner's Motion to Hold Proceedings in Abeyance.
He nevertheless maintains that the petition is timely for two reasons. First, Mr. Cabrera argues that the BIA's April 2013 decision was not a final order under Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (en banc). In Abdisalan, we held that when the BIA issues a "mixed decision" denying some claims for relief as to a petitioner but remanding other claims for further consideration, that "decision is not a final order of removal" and "does not trigger the thirty-day window in which to file a petition for review."
This court has jurisdiction under 8 U.S.C. § 1252 to review a timely appeal from a final order of removal. Abdisalan v. Holder, 774 F.3d 517, 523 (9th Cir. 2014) (en banc). Denials of withholding of removal and CAT relief are reviewed under the substantial evidence standard.
We review jurisdictional questions de novo. Abdisalan v. Holder, 774 F.3d 517, 521 (9th Cir. 2014) (en banc), as amended (Jan. 6, 2015). "We review denials of motions to reopen for abuse of discretion, and defer to the BIA's exercise of discretion unless it acted arbitrarily, irrationally, or contrary to law."