FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EPIFANIO TEO PINTO,
Petitioner, No. 06-73369
v.
Agency No.
A072-530-318
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 8, 2010—Pasadena, California
Filed August 12, 2011
Before: Raymond C. Fisher and Jay S. Bybee,
Circuit Judges, and Edward F. Shea, District Judge.*
Opinion by Judge Bybee
*The Honorable Edward F. Shea, District Judge for the U.S. District
Court for Eastern Washington, Spokane, sitting by designation.
10775
10778 PINTO v. HOLDER
COUNSEL
Sung U. Park, Esq., Law Offices of Sung U. Park, Los Ange-
les, California, for the petitioner.
Dalin R. Holyoak, Trial Attorney, Office of Immigration Liti-
gation, U.S. Department of Justice, Washington, D.C., for the
respondent.
OPINION
BYBEE, Circuit Judge:
Epifanio Teo Pinto petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) in which the BIA
denied asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”) but remanded the
case to the immigration judge (“IJ”) for voluntary departure
proceedings. Because our jurisdiction is limited to the review
of final orders of removal, 8 U.S.C. § 1252(a), we must first
PINTO v. HOLDER 10779
decide whether the BIA’s decision in this case is such an
order. We have previously held that similar BIA decisions are
final orders, first in Castrejon-Garcia v. INS, 60 F.3d 1359
(9th Cir. 1995) (“Castrejon”), where we interpreted § 1252’s
predecessor, 8 U.S.C. § 1105a (1995), and second in Lolong
v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (en banc), where
we interpreted § 1252 in light of 8 U.S.C. § 1101(a)(47), a
post-Castrejon amendment that both defines an order of
removal and specifies when the order becomes final. We must
now decide whether the Supreme Court’s decision in Dada v.
Mukasey, 554 U.S. 1 (2008), or the promulgation of a new
voluntary departure regulation that became effective on Janu-
ary 20, 2009 deprives us of jurisdiction in this case. Because
neither Dada nor the new regulation undermines our jurisdic-
tional holdings in Castrejon and Lolong, we hold that we have
jurisdiction over Pinto’s petition for review.1
I
We begin our jurisdictional journey with an account of the
procedural posture of this case and of the law that forms the
background for the question before us.
A
In 2003, the Department of Homeland Security (“DHS”)
charged Pinto, a native and citizen of Guatemala, with being
removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien pres-
ent in the United States without having been admitted or
paroled. Before the IJ, the Petitioner conceded removability
but sought asylum, withholding of removal, and protection
under CAT. Specifically, Pinto asserted he was persecuted by
Guatemalan guerillas on account of his refusal to join their
ranks and their suspicions that he was providing information
to the Guatemalan army. Although the IJ granted asylum, the
1
Exercising our jurisdiction, we deny the petition for review on the mer-
its in a memorandum disposition filed concurrently with this opinion.
10780 PINTO v. HOLDER
BIA vacated the IJ’s decision and denied asylum, withholding
of removal, and CAT protection, concluding that Pinto failed
to demonstrate persecution on account of a protected ground.
Citing Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.
2004), for the proposition that it lacked the authority to enter
an order of removal when it reversed an IJ’s grant of discre-
tionary relief from removal, the BIA then remanded the case
to the IJ for the limited purpose of considering whether Peti-
tioner qualified for voluntary departure, and, implicitly, for
entry of a final order of removal. In 2006, Pinto timely
appealed the BIA’s decision to this court while voluntary
departure proceedings were still pending before the IJ.
B
[1] At the time Pinto petitioned for review, this court had
jurisdiction under 8 U.S.C. § 1252(a)(1) to review “final
order[s] of removal.” However, whether we would have con-
cluded that the BIA’s decision was a final order of removal
was unclear because of possible tension between two of our
decisions: Castrejon and Molina-Camacho. In Castrejon, the
IJ granted the petitioner suspension from deportation, but the
BIA reversed the IJ’s grant of discretionary relief and “re-
manded to the [IJ] for a determination of voluntary departure
in lieu of deportation.” 60 F.3d at 1361 (paraphrasing the
BIA). Interpreting § 1252(a)’s predecessor, 8 U.S.C. § 1105a,
which granted us jurisdiction over “final orders of deportation,”2
we held that a BIA decision denying relief from deportation
but remanding the case for voluntary departure proceedings
was a final order of deportation. Castrejon, 60 F.3d at 1361.
We distinguished a previous decision that held “that an appeal
from a decision of the Board was a nullity when the petitioner
had moved the Board to reconsider its order” because
“plainly, an order that was open for reconsideration by the
Board was not final.” Id. By contrast, in Castrejon the BIA’s
2
As we have previously explained, the terms “order of deportation” and
“order of removal” are interchangeable. See Lolong, 484 F.3d at 1177 n.2.
PINTO v. HOLDER 10781
decision was a final order of deportation because “there was
nothing pending before the Board,” id. at 1362, and the IJ
could not reconsider the Board’s order of deportation upon
remand, see id. at 1361-62. The BIA’s decision was thus
effectively final since the BIA had already adjudicated peti-
tioner’s deportability; the only lingering question on remand
was how petitioner would be deported. See Go v. Holder, 640
F.3d 1047, 1052 (9th Cir. 2011) (explaining that in Castrejon
“the removal decision was final [because] the immigration tri-
bunals had definitively resolved that petitioner . . . would be
required to leave the United States”). We held that, under
such circumstances, the petitioner “properly appealed the
[BIA’s] final order.” Id. at 1362.
In Molina-Camacho, we considered a related question:
whether we had jurisdiction to review a BIA decision that
both reversed an IJ’s grant of cancellation of removal and
ordered the petitioner removed to Mexico. 393 F.3d at 939.
We held that we did not because the BIA’s decision was not
a final order of removal. Id. at 941-42. We first rejected the
government’s argument that the IJ’s removability finding,
made before the IJ granted cancellation of removal, was a
final order of removal and that the BIA affirmed this finding
when it reversed the IJ’s grant of cancellation of removal
because we found “no statutory authority . . . that supports the
assertion that a finding that a petitioner is removable is the
same thing as an order of removal.” Id. at 941. Then, relying
on our previous holding in Noriega-Lopez v. Ashcroft, 335
F.3d 874 (9th Cir. 2003), we explained that since only the IJ
has the statutory authority to issue an order of removal, “[t]he
BIA’s ultra vires act of issuing the order of removal render-
[ed] that portion of the proceedings a ‘legal nullity.’ ” Molina-
Camacho, 393 F.3d at 941. Accordingly, we held that
“[b]ecause the BIA chose not to remand to the IJ for the issu-
ance of the order, no final order of removal exist[ed] . . . that
would provide jurisdiction . . . under § 1252.” Id. at 942.
Thus, under Molina-Camacho, a BIA decision that reversed
an IJ’s grant of discretionary relief was not an appealable final
10782 PINTO v. HOLDER
order even though that decision definitively adjudicated peti-
tioner’s removability.
[2] Three years later we went en banc to overrule Molina-
Camacho because it “adopted an overly narrow interpretation
of the BIA’s authority and did not properly construe the effect
of the BIA’s reversal of the IJ’s decision to [grant discretion-
ary relief] after having found the alien removable.” Lolong,
484 F.3d at 1178. Starting from the premise that an IJ’s grant
of asylum “necessarily requires the IJ to have already deter-
mined that the alien is deportable,” we concluded that “this
determination by the IJ constitutes an ‘order of deportation’ ”
under the Immigration and Naturalization Act. Id. at 1177.
Congress defined an “order of deportation” as either an order
of the IJ “ordering deportation” or one merely “concluding
that the alien is deportable.” 8 U.S.C. § 1101(a)(47)(A)
(emphasis added).3 Thus, we concluded that “where the BIA
reverses an IJ’s grant of relief that, by definition, follows an
initial determination by the IJ that the alien is in fact remov-
able . . . the BIA simply reinstates the order of removal that
has already been entered by the IJ.” Lolong, 484 F.3d at 1177.
We then held, consistent with Castrejon, that a BIA decision
reversing an IJ’s grant of discretionary relief and definitively
adjudicating petitioner’s removability is a final order of
removal under 8 U.S.C. § 1252(a). See id. at 1178; see also
8 U.S.C. § 1101(a)(47)(B)(i) (stating that an order of deporta-
tion becomes final upon “a determination by the [BIA]
affirming [the IJ’s order concluding that the alien is deport-
able]”).
3
At the time we decided Castrejon, the term “order of deportation” was
not defined. The Antiterrorism and Effective Death Penalty Act of 1996
“added for the first time a definition of ‘order of deportation’ ” in 8 U.S.C.
§ 1101(a)(47) and also specified when this order becomes final. Noriega-
Lopez, 335 F.3d at 882.
PINTO v. HOLDER 10783
C
[3] Our precedent unambiguously dictates that Pinto peti-
tioned for review from a final order of removal. The IJ’s deci-
sion was both an order granting asylum and an order of
removal because before granting asylum, the IJ specifically
“conclud[ed] that the alien [was] deportable.” 8 U.S.C.
§ 1101(a)(47)(A). This order of removal then became final
when the BIA reinstated it by “eliminating the impediment to
[its] enforcement” (i.e., the IJ’s grant of discretionary relief
from removal), Lolong, 484 F.3d at 1177, and thereby
affirmed it, see 8 U.S.C. § 1101(a)(47)(B). The BIA’s remand
to the IJ does not affect the finality of the order of removal
because the IJ’s only role on remand is to consider Pinto’s eli-
gibility for voluntary departure, and that decision is not
reviewable because the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”) explicitly
deprives us of jurisdiction to review an agency’s denial of
voluntary departure. See 8 U.S.C. § 1229c(f). Accordingly,
the BIA’s decision denying asylum, withholding of removal,
and CAT protection but remanding to the IJ for voluntary
departure proceedings is a final order of removal under
Castrejon and Lolong and, effectively, the only order that we
can review.
However, the government argues that two post-Lolong
developments in the law of voluntary departure may have
affected our jurisdiction over Pinto’s petition: (1) the Supreme
Court’s decision in Dada; and (2) the Attorney General’s pro-
mulgation of a new voluntary departure regulation that took
effect on January 20, 2009.
1
In Dada, the Supreme Court decided “whether an alien who
has requested and been granted voluntary departure from the
United States . . . must adhere to that election and depart
within the time prescribed, even if doing so causes the alien
10784 PINTO v. HOLDER
to forgo a ruling on a pending, unresolved motion to reopen
the removal proceedings.” 554 U.S. at 4. Resolving this ques-
tion required the Court to harmonize two statutory provisions
of IIRIRA, one dealing with motions to reopen removal pro-
ceedings (8 U.S.C. § 1229a(c)(7)) and the other dealing with
voluntary departure (8 U.S.C. § 1229c(b)(2)). Although
IIRIRA provided an alien with a statutory right to file one
motion to reopen (§ 1229a(c)(7)), a different provision of the
Act required the alien to depart within a period prescribed by
immigration officials, not greater than 60 days, if voluntary
departure was granted (§ 1229c(b)(2)). Dada, 554 U.S. at 4-5.
If the alien failed to depart within the prescribed departure
period, the alien was statutorily ineligible for certain forms of
relief, including adjustment of status; indeed, his motion to
reopen could be denied on this basis. See 8 U.S.C.
§ 1229c(d)(1). But if the alien did depart during the 60-day
period, then, “[p]ursuant to regulation . . . departure ha[d] the
effect of withdrawing the motion to reopen.” Dada, 554 U.S.
at 5.
The Court observed that, given this conflicting statutory
scheme, “the alien who is granted voluntary departure but
whose circumstances have changed in a manner cognizable by
a motion to reopen is between Scylla and Charybdis,” id. at
18, because he has “two poor choices,” id. at 5. If the alien
leaves the United States within the prescribed voluntary
departure period, he avoids statutory penalties that could pre-
vent the BIA from reaching the merits of his motion to reopen
but, pursuant to regulation, he abandons his motion to reopen.
Alternatively, if the alien remains in the United States to pur-
sue his motion to reopen and, by doing so, overstays the vol-
untary departure period, he risks incurring ineligibility for
adjustment of status, the underlying relief sought in the
motion to reopen. Id. at 18. To resolve this Catch-22, the
Court held that the petitioner must be allowed to withdraw his
request for voluntary departure before expiration of the pre-
scribed departure period without suffering the statutory penal-
ties otherwise associated with a failure to depart. Id. at 20-22.
PINTO v. HOLDER 10785
In other words, the Court allowed the alien to forgo voluntary
departure in exchange for ensuring that the BIA reaches the
merits of his motion to reopen.
Before fashioning this remedy, the Court rejected an inter-
pretation of IIRIRA that would have automatically tolled the
voluntary departure period during the pendency of the motion
to reopen. The Court described voluntary departure as a quid
pro quo arrangement between DHS and the alien, “an agreed-
upon exchange of benefits, much like a settlement agree-
ment,” and explained that “[i]n return for anticipated benefits,
including the possibility of readmission, an alien who requests
voluntary departure” must both arrange for departure and
promptly depart. Id. at 19. The Court then explained why it
rejected the proposed tolling interpretation: “If the alien is
permitted to stay in the United States past the departure date
to wait out the adjudication of the motion to reopen, he or she
cannot then demand the full benefits of voluntary departure;
for the benefit to the Government—a prompt and costless
departure—would be lost.” Id. at 19-20. According to DHS,
this part of the Court’s opinion affects our jurisdiction in the
present case.
2
Additionally, DHS suggests that a new voluntary departure
regulation affects our jurisdiction over Pinto’s petition. The
regulation limits the ability of an alien to seek judicial review
of an order of removal after a grant of voluntary departure.
Specifically, it provides, in relevant part, that “[u]pon grant-
ing . . . voluntary departure . . . the immigration judge shall
also enter an alternate order of removal.” 8 C.F.R.
§ 1240.26(d). Then, if “the alien files a petition for review . . .
or any other judicial challenge to the administratively final
order, any grant of voluntary departure shall terminate auto-
matically upon the filing of the petition or other judicial chal-
lenge and the alternate order of removal . . . shall immediately
take effect . . . .” Id. § 1240.26(i). Consistent with Dada, this
10786 PINTO v. HOLDER
new regulation thus “reinforces the nature of voluntary depar-
ture as an ‘agreed-upon exchange of benefits,’ and stresses the
choice an alien must make between the benefits of voluntary
departure, with its concomitant obligation to depart promptly,
on one hand, or pursuing litigation without agreeing to depart
promptly, on the other.” Sandie v. Attorney Gen., 562 F.3d
246, 255 n.5 (3d Cir. 2009); see also Dada, 554 U.S. at 20
(discussing the new voluntary departure regulation while it
was just a proposal).
II
With the above background in mind, we now turn to the
jurisdictional question before us. The government concedes
we have jurisdiction over Pinto’s petition to the extent our law
of the circuit—Lolong—remains good law, but argues that
“the promulgation of [the] new voluntary departure regulation
which took effect on January 20, 2009, and Dada . . . call into
question the continuing validity of [Lolong].”4 Specifically,
DHS claims that postponing voluntary departure while an
alien pursues judicial review permits what Dada and the new
regulation will not bear: conferring upon the alien the dual
benefits of judicial review and voluntary departure, while
depriving the government of the benefit of a prompt and cost-
less departure. Accordingly, DHS urges us to “revisit
[Lolong] in view of the recent developments in the law gov-
erning voluntary departure relief and [to] dismiss this petition
for review . . . for lack of jurisdiction.” Neither development
sufficiently undermines our precedent to free us from the law
of the circuit.
4
The government’s supplemental brief on jurisdiction discusses only
Castrejon and does not mention Lolong. Because Lolong succeeds Castre-
jon and because Lolong interprets a “final order of removal” in light of the
post-Castrejon definition of an “order of deportation” in 8 U.S.C.
§ 1101(a)(47), we construe the government’s argument to overrule Castre-
jon as an argument to overrule Lolong.
PINTO v. HOLDER 10787
As a three-judge panel, our ability to overrule existing cir-
cuit precedent—a fortiori, an en banc decision—is limited.
We may do so “without taking the case en banc when an
intervening Supreme Court decision undermines [that] prece-
dent . . . and both cases are closely on point,” Galbraith v.
Cnty. of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)
(internal citation omitted), or, stated more broadly, when “the
reasoning or theory of our prior circuit authority is clearly
irreconcilable with the reasoning or theory of intervening
higher authority,” Miller v. Gammie, 335 F.3d 889, 893 (9th
Cir. 2003) (en banc). Neither the new voluntary departure reg-
ulation nor Dada undermines our previous jurisdictional hold-
ing in Lolong. Accordingly, we have jurisdiction over Pinto’s
petition for review.
A
[4] Contrary to the government’s argument, Dada does not
undermine Lolong because Dada and Lolong are substan-
tively inapposite. As we explained earlier, Dada addressed a
situation in which the petitioner filed a motion to reopen after
receiving a grant of voluntary departure. In the process, the
Court rejected a reading of IIRIRA—a reading our circuit had
adopted in Barroso v. Gonzales, 429 F.3d 1195 (9th Cir.
2005), and Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005)
—that would have automatically tolled the voluntary depar-
ture period during the pendency of the motion to reopen. The
Court rejected this reading because “it would reconfigure the
voluntary departure scheme in a manner inconsistent with the
statutory design.” Dada, 554 U.S. at 5. The Court emphasized
IIRIRA “contains no ambiguity” regarding the requirement to
depart within the voluntary departure period, id. at 15, and
explained that “[i]f the alien is permitted to stay in the United
States past the departure date to wait out the adjudication of
the motion to reopen, he or she cannot then demand the full
benefits of voluntary departure [because] the benefit to the
Government—a prompt and costless departure—would be
lost,” id. at 19-20 (emphasis added).
10788 PINTO v. HOLDER
By contrast, neither Lolong nor this case evokes similar
concerns. Although Lolong petitioned for review after the
BIA granted him voluntary departure, nothing in our decision
enables aliens to remain “in the United States past the [volun-
tary] departure date to wait out the adjudication of [judicial
proceedings].” Dada, 554 U.S. at 19-20. Rather, Lolong holds
that a BIA decision in which the BIA reverses an IJ’s grant
of asylum and then grants voluntary departure is a final order
of removal. As we have explained, this jurisdictional holding
derives from our interpretation of 8 U.S.C. § 1252(a)(1) and
8 U.S.C. § 1101(a)(47), two statutory provisions that Dada
merely cites but does not otherwise discuss. Dada’s holding
on the right to file a motion to reopen without penalty cannot
excuse us from adhering to the plain meaning of the Immigra-
tion and Naturalization Act. If anything, Dada suggests we
must preserve a meaningful right to judicial review.
[5] Nevertheless, there is an undeniable tension between an
alien’s need to petition for review within 30 days of the final
order of removal, see 8 U.S.C. § 1252(b)(1), and Dada’s
quid-pro-quo understanding of voluntary departure. On the
one hand, if an alien waits for a decision on voluntary depar-
ture, he will almost certainly lose his ability to petition for
review on the merits of his case (and, if voluntary departure
is denied, he cannot appeal that denial). On the other hand, if
an alien petitions for review and simultaneously requests vol-
untary departure, he has already imposed on the government
part of the burden—litigation costs—that voluntary departure
is intended to avoid. Despite that tension, Lolong does not
permit an alien “to stay in the United States past the departure
date to wait out the adjudication,” so Dada does not compel
us to abandon our jurisdictional analysis. 554 U.S. at 19-20.
It is within the power of the immigration authorities to recon-
cile the statutory definition of “final order of removal” with
the administration of voluntary departure. For example, immi-
gration judges could grant voluntary departure in the alterna-
tive when granting relief from removal, or the BIA could
PINTO v. HOLDER 10789
remand for a new order of removal when remanding for con-
sideration of voluntary departure.
B
Similarly, the new voluntary departure regulation does not
deprive us of jurisdiction in the present case because a regula-
tion cannot amend the clear and unambiguous statutory defi-
nition of a final order, nor does the voluntary departure
regulation attempt to do so. Moreover, the new regulation is
not directly applicable to Pinto’s petition because it was not
in force when Pinto petitioned for review and does not speak
to petitions for review filed before a grant of voluntary depar-
ture. Thus, the government is arguing that the new voluntary
departure regulation implicitly overrides the plain meaning of
8 U.S.C. § 1101(a)(47)(B), which is simply impossible. We
briefly address each of these concerns in turn.
[6] First, we have previously held that 8 U.S.C.
§ 1101(a)(47)(B) states in “clear and unambiguous [terms]”
that “removal orders become final only in the[ ] two circum-
stances [it specifies], so there is no need to resort to [regula-
tions] for clarification.” Ocampo v. Holder, 629 F.3d 923, 927
(9th Cir. 2010). Because “a regulation may not serve to
amend a statute, nor add to the statute something which is not
there,” reading the new voluntary departure regulation to
deprive us of jurisdiction in cases where the BIA has affirmed
an order of removal entered by the IJ “would violate this pre-
cept by effectively amending 8 U.S.C. § 1101(a)(47)(B) to
[remove a] circumstance when removal orders become final
that is [ ] expressed in the statute.” Id. (citation and alteration
omitted). Moreover, the voluntary departure regulation does
not even purport to affect our jurisdiction.5
5
If anything, the regulation adopts a pro-judicial review stance: it extin-
guishes the grant of voluntary departure upon the filing of a petition for
review, but leaves the petition for review properly before the appellate
court. See 8 C.F.R. § 1240.26(i) (“If, prior to departing the United States,
10790 PINTO v. HOLDER
[7] Second, the new voluntary departure regulation does
not even apply to Pinto. The regulation became effective on
January 20, 2009, and the Department of Justice expressly
declined to give it retroactive effect. See Voluntary Depar-
ture: Effect of a Motion To Reopen or Reconsider or a Peti-
tion for Review, 73 Fed. Reg. 76,927, 76,936 (Dec. 18, 2008)
(codified at 8 C.F.R. § 1240.26) (stating that “the Department
will not apply this rule retroactively” and that “the provisions
of this rule are prospective only”); Nevarez Nevarez v.
Holder, 572 F.3d 605, 610 (9th Cir. 2009) (stating that the
new 8 C.F.R. § 1240.26 “applies prospectively only”).
Because Pinto filed his petition for review in 2006, whatever
effect a regulation could have on our interpretation of 8
U.S.C. § 1101(a)(47), this regulation has no effect on Pinto’s
petition.
Third, even if the regulation applied to Pinto, it is silent on
Pinto’s situation. The regulation, by its terms, addresses only
those cases in which an alien files a petition for review after
that alien has been granted voluntary departure. For example,
the regulation provides that “[u]pon granting a request made
for voluntary departure either prior to the completion of pro-
ceedings or at the conclusion of proceedings, the [IJ] shall
also enter an alternate order of removal.” 8 C.F.R.
§ 1240.26(d). If the alien then files a petition for review “prior
to departing the United States . . . any grant of voluntary
departure shall terminate automatically” and “the alternate
the alien files a petition for review . . . any grant of voluntary departure
shall terminate automatically upon the filing of the petition . . . .”); cf.
Patel v. Attorney Gen., 619 F.3d 230, 234 (3d Cir. 2010) (“Under the plain
language of 8 C.F.R. § 1240.26(i), we cannot stay a grant of voluntary
departure after a petitioner seeks judicial review because the grant has
already terminated.”). Indeed, the regulation even provides that “[t]he
automatic termination of a grant of voluntary departure and the effective-
ness of the alternative order of removal shall not affect, in any way, the
date that the order of the [IJ] or the Board became administratively final
. . . .” 8 C.F.R. § 1240.26(i).
PINTO v. HOLDER 10791
order of removal . . . shall immediately take effect.” Id.
§ 1240.26(i). Where the alien files a petition for review before
the IJ grants voluntary departure, however, the alien cannot
know of “the quid pro quo” nature of the government’s offer
of voluntary departure. Dada, 554 U.S. at 11.
The new regulation does not address whether an alien must
relinquish his pending appeal to the BIA in exchange for a
subsequent stay of voluntary departure. In light of Dada, it
seems voluntary departure could be predicated on abandon-
ment of a pending petition for review, and the regulation pro-
vides for such conditions. See 8 C.F.R. § 1240.26(c)(3) (“The
immigration judge may impose such conditions as he or she
deems necessary.”). Where a petition for review is already
pending, however, any grant of voluntary departure will not
automatically terminate unless the alien files another “petition
for review . . . or . . . other judicial challenge to the admin-
istratively final order.” Id. § 1240.26(i). Perhaps aware of this
problem, DHS argues we should decline to exercise jurisdic-
tion over Pinto’s petition for prudential reasons, as the First
Circuit did in Hakim v. Holder, 611 F.3d 73 (1st Cir. 2010).
In Hakim, the petitioner sought review of an April 2009
BIA decision in which the BIA reversed the IJ’s grant of asy-
lum and withholding of removal, but remanded the case to the
IJ for voluntary departure proceedings. The court noted that
the new regulation did “not directly address the case at hand”
because “[t]he automatic termination provision of the . . . reg-
ulation assumes a chronological order, i.e., that the grant of
voluntary departure precedes the filing of a petition for judi-
cial review.” Hakim, 611 F.3d at 79. The court concluded that
by exercising jurisdiction over Hakim’s petition filed before
a decision on voluntary departure, it “would be permitting
Hakim to circumvent the regulation by allowing him to seek
both voluntary departure and judicial review, thus hindering
judicial economy and denying the government the benefit of
a prompt and costless departure.” Id. (citation and internal
10792 PINTO v. HOLDER
quotation marks omitted). To avoid this result, the court
“th[ought] it wiser, for prudential reasons, to remand the case
to the IJ so that she can decide whether to grant Hakim volun-
tary departure.” Id.
But in doing so, the court ignored the 30-day deadline for
petitioning for review of final orders, which in our circuit can
begin well-before the grant of voluntary departure. The First
Circuit did not explain how it could assert jurisdiction over
Hakim’s petition for review on the merits if he was denied
voluntary departure (or decided not to accept voluntary depar-
ture if it were granted) and sought to renew judicial review.
Unlike in our circuit, the First Circuit had not yet addressed
whether a BIA decision denying relief from removal but
remanding for voluntary departure is a final order. Hakim,
however, prudentially declined to exercise jurisdiction even
assuming that there was a final order to review. See Hakim,
611 F.3d at 77, 79. The regulation plainly does not require
immigrants to forgo a petition for review before they have
been granted voluntary departure, so we decline to follow the
First Circuit and effectively force immigrants to choose
between judicial review and the hope of voluntary departure.
Dada similarly refused to make immigrants choose between
accepting voluntary departure and the possibility of a motion
to reopen.
[8] Moreover, our case is distinguishable from Hakim
because the regulation was effective when Hakim petitioned
for review and was part of the relevant law that colored the
resolution of his petition. By contrast, as we discussed above,
the new regulation is not applicable to Pinto’s case because
Pinto petitioned for review three years before the effective
date of the new regulation. We thus refuse to force Pinto into
a situation in which the regulation would be applicable
because doing so would effectively apply the regulation retro-
actively despite the government’s contrary assurance and
because it would also effectively rewrite the regulation.
PINTO v. HOLDER 10793
III
The government also argues in a Rule 28(j) letter that Fer-
nandes v. Holder, 619 F.3d 1069 (9th Cir. 2010), affects our
analysis. For the reasons we explain, we believe it does not.
In Fernandes, the IJ denied petitioner’s application for asy-
lum, but the BIA “found that Fernandes had satisfied his bur-
den of proving past persecution, which gave rise to a
rebuttable presumption that Fernandes would face future per-
secution,” and reversed the IJ’s decision. 619 F.3d at 1071-72.
The BIA then remanded the case to the IJ to afford “DHS an
opportunity to establish that since the time the persecution
occurred conditions in [Fernandes’s] country have changed to
such an extent that [Fernandes] no longer has a well-founded
fear of being persecuted.” Id. at 1072. On remand, the govern-
ment moved to reopen the proceedings to introduce new evi-
dence that Fernandes had filed a fraudulent asylum
application. The IJ held that her jurisdiction on remand was
not limited by the BIA, and denied Fernandes’s asylum appli-
cation on the grounds that Fernandes had knowingly filed a
frivolous application in violation of 8 U.S.C. § 1158(d)(6).
The BIA affirmed, and we agreed that “the IJ’s jurisdiction on
remand from the BIA is limited only when the BIA expressly
retains jurisdiction and qualifies or limits the scope of the
remand to a specific purpose.” Id. at 1074. We added that
“[a]n articulated purpose for the remand, without any express
limit on scope, is not sufficient to limit the remand such that
it forecloses consideration of other new claims or motions that
the IJ deems appropriate.” Id.
[9] Citing Fernandes for this latter proposition, the govern-
ment argues that the BIA’s failure to limit the scope of the
remand in this case to Pinto’s eligibility for voluntary depar-
ture “demonstrates that . . . Pinto does not have a final order
of removal” because “the IJ may consider other claims or evi-
dence . . . in remanded proceedings.” We disagree for two
reasons. First, the BIA’s decision in this case did specifically
10794 PINTO v. HOLDER
remand the case to the IJ “for the limited purpose of consider-
ing the respondent’s voluntary departure request.” Second, in
Fernandes the BIA remanded the case to the IJ to afford the
government an opportunity to rebut the presumption of future
persecution through evidence of changed country conditions.
Where the BIA does not definitively adjudicate an alien’s eli-
gibility for asylum, Fernandes correctly refused to preclude
the IJ from considering other issues that may affect petition-
er’s eligibility for discretionary relief unless the BIA
expressly conditioned in remand; after all, under these cir-
cumstances the merits of the alien’s eligibility for discretion-
ary relief remain very much in question. But we do not read
Fernandes to allow reconsideration of the petitioner’s eligibil-
ity for discretionary relief in cases like Pinto’s where the BIA
definitively adjudicates this issue and where the only linger-
ing question on remand is how petitioner will leave: by
removal or through voluntary departure. Fernandes is fully
consistent with the principles we have articulated.
*****
[10] Pinto petitioned for review of a BIA decision that
denied his application for asylum, withholding of removal,
and protection under CAT, but remanded the case to the IJ for
voluntary departure proceedings. Our precedent compels the
conclusion that the BIA’s decision was a final order of
removal. Because neither Dada nor the new voluntary depar-
ture regulation undermines our precedent, we have jurisdic-
tion over Pinto’s petition for review under 8 U.S.C. § 1252(a)
and we may review the merits of his petition.