E-Alert Case Updates

Fourth Circuit Declines to Exercise Jurisdiction over Board of Immigration Appeals Order

Li v. Holder, Attorney General
Case No. 10-2333 (U.S. Court of Appeals for the Fourth Circuit, December 2, 2011)
by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this recently issued opinion, the United States Court of Appeals for the Fourth Circuit held that it did have jurisdiction to consider Qingyun Li’s request for review of an Order of the Board of Immigration Appeals, but declined to exercise jurisdiction for prudential reasons.

The petitioner, Qingyun Li, is a native and citizen of the Republic of China who entered the United States illegally in August 1998. In 2007, the Department of Homeland Security issued her a Notice to Appear charging her as an alien present in the United States without being admitted or paroled. In 2009, an Immigration Judge found Ms. Li to be removable as charged, but granted her the privilege of voluntary departure with an alternate order of removal to China.

The Board of Immigration Appeals upheld the decision of the Immigration Judge that Ms. Li was not entitled to stay in the U.S. and dismissed her appeal. However, the Board found that Ms. Li was not properly advised with the required information regarding her decision to accept voluntary departure, and therefore the matter was remanded back to the Immigration Judge. Ms. Li sought review of the Board’s dismissal of her appeal by the Fourth Circuit.

The Government argued that the Court was without appellate jurisdiction to hear Ms. Li’s appeal, contending that the Board’s remand was not a final order and immediately appealable. The Fourth Circuit noted that its prior holdings in Saldarriaga v. Gonzales, 402 F.3d 461 (4th Cir. 2005), and Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007) establish that a Board of Immigration Appeals decision denying relief from removal, but remanding the case to an Immigration Judge to determine an alien’s eligibility for voluntary departure is in fact a final and appealable order.

However, the Fourth Circuit then set out the basis on which it determined that it would be more prudent and in keeping with Federal Regulations and Supreme Court precedent to refrain from considering Ms. Li’s Petition. The Court referred back to the Supreme Court’s ruling in Dada v. Mukasey, 554 U.S. 1 (2008), in which it stated that a voluntary departure agreement between an alien and the government is akin to a civil settlement agreement. Id. at 19. In accepting the voluntary departure agreement the alien is agreeing to leave the country voluntarily but receives certain benefits including the possibility of readmission.

The Court in Duda held that an alien can withdrawn from such a voluntary agreement and request that his or her case be re-opened and pursue appellate review, etc. In turn, if the alien makes the decision to pursue judicial review, the voluntary departure is taken off the table; the alien will have no possibility for readmission, and is essentially subject to the alternate order of removal if the appeal is unsuccessful.

As such, the Court determined that if it asserted jurisdiction and considered the merits of Ms. Li’s case prior to the matter being remanded with regard to the voluntary departure, she would essentially be entitled to pursuing judicial review with a fallback position of accepting voluntary departure. This would not require Ms. Li to make the decision to pursue legal recourse or accept the Government’s offer of a voluntary departure agreement, and therefore was not in line with the Supreme Court’s holding in Duda, or the applicable Federal Regulation regarding the same, 8 C.F.R. § 1240.26(i).

In so holding the Fourth Circuit agreed with the positions previously taken on this issue by the First Circuit, Hakim v. Holder, 611 F.3d 73, 79 (1st Cir. 2010); and Sixth Circuit, Giraldo v. Holder, 654 F.3d 609, 610, 616 (6th Cir. 2011). Therefore the Fourth Circuit declined to assert its jurisdiction, but did so without prejudice to Ms. Li’s right to seek judicial review in the future.