May 24, 2019

Tenth Circuit: Board of Immigration Appeals’ Order was Final Order of Removal Because Its Remand Order Had No Potential for Relief From Removal

The Tenth Circuit Court of Appeals published its opinion in Batubara v. Holder on Monday, October 28, 2013.

Petitioners, wife and husband, Imelda Rosalyna Purba and Aram Batubara, who are citizens of Indonesia, sought review of the Board of Immigration Appeals’ (BIA) order dismissing their appeal from the denial of their applications for withholding of removal and relief under the Convention Against Torture (CAT). Petitioners legally entered the United States but remained after their authorized stay expired. They conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) in 2004.

On May 4, 2011, after various proceedings, the BIA upheld the Immigration Judge’s (IJ) denial of asylum, withholding of removal, and relief under the CAT and dismissed petitioner’s appeal. The BIA remanded for the IJ to provide all advisals that were required when he granted voluntary departure. On remand, petitioners withdrew their requests for voluntary departure. The IJ issued an order on March 28, 2012, denying voluntary departure and ordering petitioners removed to Indonesia. Only then, on April 23, 2012, did petitioners file this petition seeking review of the BIA’s May 4, 2011, ruling.

A petition for review must “be filed not later than 30 days after the date of the final order of removal.” The Tenth Circuit disagreed with both parties that the BIA’s May 11 order was not a final order and agreed with its “sister circuits, which have uniformly held that a BIA order denying relief from removal but remanding for proceedings having no potential for future relief from removal, such as consideration of voluntary departure, is a final order of removal.”

Because the petition for review was untimely, the court dismissed it for lack of jurisdiction.

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