Nian v. Holder

Denial of an alien crewmember’s petition in “asylum-only” proceedings is the "functional equivalent" of a final order of removal giving a reviewing court jurisdiction.

Bao Tai Nian, a native and citizen of China, petitioned for review of the Board of Immigration Appeals’ (BIA) decision denying application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Bao arrived in the United States as an alien crewmember limiting his proceedings to “asylum-only” proceeding. Thus, the Immigration Judge and the BIA did not issue a final order of removal when denying Bao’s asylum claims. The Ninth Circuit was presented with the question of whether the BIA’s denial of asylum in “asylum-only” proceedings was the equivalent of a final removal order giving the Court jurisdiction. The Court held that denial of an alien crewmember’s petitions in “asylum-only” proceedings is a "functional equivalent" of a final order of removal because an alien crew member in the United States without authorization or whose authorization is revoked is statutorily required to be removed without a hearing. Therefore, the Ninth Circuit had jurisdiction. The Court denied Bao’s petition for reasons stated in a separate memorandum disposition. PETITION DENIED.