Rizo v. Lynch

An order of removal is final even when a voluntary departure proceeding is pending and therefore the Court of Appeals for the Ninth Circuit has jurisdiction to review the removal order.

In 2007, Elton Yadimir Mendoza Rizo, a Nicaraguan citizen, illegally entered the United States after living for years in hiding following his father’s murder by political opponents. In 2009, Rizo filed for asylum but canceled his asylum interview. The Department of Homeland Security initiated removal proceedings later that year. At his removal hearing, Rizo again requested asylum, and withholding of removal and protection under the Convention Against Torture. As an alternative, Rizo conceded to voluntary departure. The immigration judge denied asylum and granted voluntary departure. Rizo appealed, which the Board of Immigration Appeals denied. Rizo’s case was remanded to resolve only the remaining issue of voluntary departure. On appeal, the Ninth Circuit determined whether it had jurisdiction to review a petition for asylum while proceedings regarding voluntary departure were still pending. The panel held that an order of removal is final even when a voluntary departure proceeding is pending, and therefore it has jurisdiction to review the removal order. A voluntary departure is a form of removal and the pending action does not affect the finality of the removal order, although the panel denied the ability to review the voluntary departure proceeding itself. PETITION DENIED.