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Keywords

jurisdictionattorneyappealasylumjudicial review
tortjurisdictionattorneyasylum

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Giraldo v. Holder

Facts

Petitioners illegally entered the United States from Colombia in February 2002 and applied for asylum in August 2006. Their application was deemed untimely, leading to charges of removability under the Immigration and Nationality Act. The IJ found them removable but granted withholding of removal. The Department of Homeland Security appealed, and the BIA reversed the IJ's decision, remanding the case for the purpose of allowing the petitioners to apply for voluntary departure.

Petitioners illegally entered the United States at El Paso, Texas in February 2002, from Colombia. They applied for asylum on August 10, 2006. They also sought withholding of removal and relief under the Convention Against Torture ('CAT'). Their application was untimely and was referred to the immigration court.

Issue

Whether the court had jurisdiction to review the BIA's order given that it remanded the case to the IJ for voluntary departure, thus potentially lacking a final order of removal.

The issue was whether the court had an administratively final order of removal for purposes of 8 U.S.C.S. 1252.

Rule

An order of removal becomes final upon a determination by the BIA affirming such order or upon the expiration of the period in which an alien can seek review of such order. The BIA's order reversing the IJ's grant of withholding of removal is considered a final order as it left the IJ's order of removability intact.

An order of removal became final upon a determination by the BIA affirming such order, or upon the expiration of the period in which an alien could seek review of such order by the BIA.

Analysis

The court analyzed whether the BIA's order constituted a final order of removal. It concluded that the BIA's reversal of the IJ's grant of withholding of removal left the IJ's order of removability in place, thus satisfying the definition of a final order. However, the court also noted that the IJ's decision regarding voluntary departure was not subject to judicial review, leading to the conclusion that the BIA's order was effectively a final order.

The BIA's order reversing the IJ's grant of withholding of removal to Colombia amounted to a final order because it left in place the IJ's order that petitioners were removable.

Conclusion

The court dismissed the petition for review of the BIA's denial of withholding of removal without prejudice, citing prudential reasons.

The court dismissed without prejudice the petition for review of the BIA's denial of removal of withholding.

Who won?

The government prevailed in this case as the court dismissed the petition for review, agreeing with the Attorney General's argument regarding the lack of jurisdiction.

The government prevailed in this case as the court dismissed the petition for review, agreeing with the Attorney General's argument regarding the lack of jurisdiction.

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