Pinto v. Holder

When the Bureau of Immigration Affairs remands an Immigration Judge’s grant of asylum back for consideration of a grant of voluntary departure, the decision is considered a final order or removal and the Ninth Circuit has jurisdiction to hear the appeal.

In 2003, Epifanio Pinto, a native of Guatemala, was charged with being removable under 8 U.S.C. § 1182(a)(6)(A)(i) by the Department of Homeland Security (“DHS”). Pinto sought withholding of removal, asylum, and protection under the Convention Against Torture (“CAT”), asserting that he faced persecution in his native country, first because of his refusal to join Guatemalan guerillas, and second their subsequent suspicion that he was supplying information to the Guatemalan army. The Immigration Judge (“IJ”) granted asylum, but the Bureau of Immigration Affairs (“BIA”) vacated the order due to Pinto’s failure to demonstrate persecution based on a protected ground. The BIA remanded the case back to the IJ to consider whether Pinto qualified for voluntary departure. Pinto appealed. The DHS asserted that the Ninth Circuit did not have jurisdiction in the case because the BIA’s remanding of the case back to the IJ did not constitute final orders and that a recent regulation limiting judicial recourse for aliens granted voluntary departure. The Court held that Ninth Circuit precedent, specifically Lolong v. Gonzales, established that a BIA reversal of an IJ grant of discretionary relief constitutes a final order of removal. Further, the Supreme Court case Dada v. Mukasey did not undermine the Lolong precedent in this case because Dada’s petitioner had filed a motion to reopen his case after his receiving his grant of voluntary departure. Finally, the Court held that the Department of Justice’s rule of January 2009 limiting judicial review could not override the plain meaning of a statute. Accordingly, the Court held that it has jurisdiction over Pinto’s petition for review.