Abdisalan v. Holder

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 12-15-2014
  • Case #: 10-73215; 11-71124
  • Judge(s)/Court Below: En Banc: Circuit Judge Wardlaw for the Court; Chief Judge Thomas; Circuit Judges Kozinski, Gould, Paez, Berzon, Tallman, Ikuta, Murguia, Nguyen, and Hurwitz
  • Full Text Opinion

A Board of Immigration Appeals decision that denies some claims, but remands any other claims for relief to an Immigration Judge for further proceedings, the Board's decision is not a final order of removal with regard to any of the claims, and it does not trigger the thirty-day window in which to file a petition for review.

Sama Abdiaziz Abdisalan, a 36-year-old native and citizen of Somalia asserted that she “entered the United States in February 2002.” Abdisalan, on March 25, 2002, “filed an application for asylum, withholding of removal, and protection under the Convention Against Torture ('CAT')” claiming that in Somalia, she was “forced to undergo female genital mutilation and was kidnapped and raped by members of a rival clan.” In 2007, an Immigration Judge (“IJ”) found that “Abdisalan was credible, but denied her asylum claim as time-barred, concluding that she had not demonstrated by clear and convincing evidence that she filed her asylum application within one year of arriving in the United States.” However, the IJ did grant “Abdisalan withholding of removal as to Somalia.” Abdisalan filed subsequent appeals with the Board of Immigration Appeals, which resulted in the dismissal of her appeal in September 2010, and the issuance of a 2011 order from an IJ reaffirming that Abdisalan’s claim for asylum was denied. On appeal, Abdisalan argued for the “review of the 2010 BIA decision and the 2011 IJ order, challenging the finding that her asylum claim was time-barred." The Ninth Circuit held that "[w]hen the BIA remands to the IJ for any reason, no final order of removal exists until all administrative proceedings have concluded. Thus, when the BIA issues a mixed decision, no aspect of the BIA’s decision is 'final' for the purpose of judicial review." The panel granted Abdisalan's petition and remanded back to the BIA to determine "whether. . . a pre–REAL ID Act asylum applicant’s credible and uncontradicted testimony regarding her date of entry meets the statutory ‘clear and convincing evidence’ standard." GRANTED AND REMANDED.

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