PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ARAM BATUBARA; IMELDA 

ROSALYNA PURBA, 

 Petitioners, 

v. 

ERIC H. HOLDER, JR., United States 

Attorney General, 

 Respondent. 

No. 12-9549 

 

ON PETITION FOR REVIEW FROM 

THE BOARD OF IMMIGRATION APPEALS 

 

Submitted on the briefs:*

Armin A. Skalmowski, Alhambra, California, for the Petitioners. 

Stuart F. Delery, Principal Deputy Assistant, Attorney General, William C. Peachey, 

Assistant Director, Ada E. Bosque, Senior Litigation Counsel, Office of Immigration 

Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for 

Respondent. 

 

 

Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and 

TYMKOVICH, Circuit Judge. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 28, 2013

Elisabeth A. Shumaker 

Clerk of Court
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BRISCOE, Chief Judge. 

 Petitioners, wife and husband, Imelda Rosalyna Purba and Aram Batubara, 

who are citizens of Indonesia, seek review of the Board of Immigration Appeals’ 

(BIA) order dismissing their appeal from the denial of their applications for 

withholding of removal and relief under the Convention Against Torture (CAT). We 

dismiss the untimely petition for review for lack of jurisdiction. 

I. Background. 

Petitioners legally entered the United States but remained after their authorized 

stay expired. They conceded removability and applied for asylum, withholding of 

removal, and relief under the Convention Against Torture (CAT) in 2004. Purba 

alleged persecution on account of her Christian evangelism, and Batubara sought 

derivative relief through Purba. In 2006, the immigration judge (IJ) denied 

petitioners’ applications for relief. Petitioners’ appeal to the BIA was dismissed, but 

on review this court granted the government’s unopposed motion for remand in light 

of a recent circuit decision. In April 2009, the IJ again found that petitioners’ 

removability had been established and that their asylum request was untimely filed. 

The IJ denied their withholding of removal requests because Purba had not shown 

past persecution or a well-founded fear of future persecution in order to qualify for 

withholding of removal, nor had she shown persecution by a government official in 

order to qualify for relief under the CAT. The IJ granted petitioners a 60-day 
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voluntary departure period, and ordered them removed if they failed to voluntarily 

depart. Petitioners appealed to the BIA. 

On May 4, 2011, the BIA upheld the IJ’s denial of asylum, withholding of 

removal, and relief under the CAT and dismissed the appeal. The BIA then noted the 

record did not show if petitioners had timely posted the voluntary-departure bond, or 

if the IJ had advised petitioners they were required to submit proof of having posted 

this bond, as required by 8 C.F.R. § 1240.26(c)(3). Thus, the BIA remanded for the 

IJ to provide all advisals that were required when he granted voluntary departure. 

On remand, petitioners withdrew their requests for voluntary departure. The IJ 

issued an order on March 28, 2012, denying voluntary departure and ordering 

petitioners removed to Indonesia. Only then, on April 23, 2012, did petitioners file 

this petition seeking review of the BIA’s May 4, 2011, ruling. At the same time, 

petitioners also appealed the IJ’s March 28, 2012, order to the BIA. That appeal 

remains pending. 

II. Analysis. 

A petition for review must “be filed not later than 30 days after the date of the 

final order of removal.” 8 U.S.C. § 1252(b)(1). In their initial briefing, both parties 

asserted that the petition for review was timely. Pet’rs Br. at 2 (“On March 28, 2012, 

the IJ issued final orders of removal. On April 23, 2012, petitioners filed a timely 

petition for review with this Court.”); Resp’t Br. at 2 (“The petition for review was 

timely filed. . . .”). But we ordered the parties to file supplemental jurisdictional 
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briefs to address whether the BIA’s May 4, 2011, order—not the IJ’s March 28, 2012 

order—was the final order of removal. We conclude the BIA’s May 4, 2011, order 

was the final order of removal. Thus, the April 2012 petition for review was 

untimely filed, and we lack jurisdiction over this petition. 

Under the Immigration and Nationality Act (INA), circuit courts have 

jurisdiction to review solely “a final order of removal.” 8 U.S.C. § 1252(a)(1); 

see also Padilla-Caldera v. Holder, 637 F.3d 1140, 1144 (10th Cir. 2011); Hamilton 

v. Gonzales, 485 F.3d 564, 566 (10th Cir. 2007). The INA defines an “order of 

removal” as the order “‘concluding that the alien is [removable] or ordering 

[removal].’” Hamilton, 485 F.3d at 565 (quoting 8 U.S.C. § 1101(a)(47)(A)).1

 

Had the BIA not remanded for the IJ to make the ministerial review of whether 

petitioners had been advised of their obligation to post a voluntary-departure bond, 

its May 4, 2011, order would undoubtedly have been a final order of removal. See 

Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1144 (10th Cir. 2007) (“An order of 

[removal] becomes ‘final’ when (1) the BIA affirms the order on appeal, or (2) the 

period for seeking BIA review has expired.” (citing 8 U.S.C. § 1101(a)(47)(B)); 

see also 8 C.F.R. § 1241.1 (“An order of removal made by the [IJ] . . . shall become 

final . . . [inter alia,] [u]pon dismissal of an appeal by the [BIA]. . . .”). 

 

1

 As we have previously explained, “[t]he terms removable and deportable are 

synonymous.” Hamilton, 485 F.3d at 565 n.2. 
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But the parties argue the BIA’s May 2011 order was not a final order of 

removal because petitioners were not actually removable pending the IJ’s decision 

regarding voluntary departure. We disagree. “The fact that the availability of 

voluntary departure may be up in the air has no effect at all on the removability of the 

alien—it affects only the manner of her exit.” Almutairi v. Holder, 722 F.3d 996, 

1001 (7th Cir. 2013); see also Foti v. INS, 375 U.S. 217, 220 n.1 (1963) (“The 

granting of voluntary departure relief does not result in the alien’s not being subject 

to an outstanding final order of deportation.”). 

Here, neither the IJ’s voluntary departure advisals, nor any IJ order on remand 

relating to voluntary departure, could alter the BIA’s decision upholding the IJ’s 

finding of removability and denial of petitioners’ requests for asylum, withholding of 

removal, and CAT relief. See Foti, 375 U.S. at 220 n.1. Thus, the BIA’s May 2011 

order concluding the petitioners were removable was the final order of removability 

under § 1101(a)(47), that is subject to judicial review under § 1252. 

This conclusion is consistent with the decisions of our sister circuits, which 

have uniformly held that a BIA order denying relief from removal but remanding for 

proceedings having no potential for future relief from removal, such as consideration 

of voluntary departure, is a final order of removal under § 1101(a)(47)(A) and (B). 

See Almutairi, 722 F.3d at 1001 (aligning with its “sister circuits[, which] have all 

found that an order from the BIA resolving everything except an issue relating to 

voluntary departure satisfies the finality rules of the INA”); Li v. Holder, 666 F.3d 
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147, 151 (4th Cir. 2011) (reaffirming its existing precedent and holding, as to a 

remand for voluntary departure advisals, that “a final order of removal . . . is an 

appealable order, even if the details of a voluntary departure remain to be worked 

out”); Giraldo v. Holder, 654 F.3d 609, 612-15 (6th Cir. 2011) (holding BIA order 

that vacated the IJ’s grant of withholding of removal was a final order of removal, 

notwithstanding remand to IJ to consider voluntary departure relief, “because all of 

the orders that would foreclose removal . . . have been presented to the BIA, and all 

that is remaining is the discretionary issue of voluntary departure” (original alteration 

omitted) (internal quotation marks omitted)); Pinto v. Holder, 648 F.3d 976, 980 

(9th Cir. 2011) (reaffirming prior holdings that BIA order denying relief from 

removal but remanding to IJ for voluntary departure proceedings is final order of 

removal); Alibasic v. Mukasey, 547 F.3d 78, 83-84 (2d Cir. 2008) (joining other 

circuits in holding that “a BIA order denying relief from removal and remanding for 

the sole purpose of considering voluntary departure is a final order of removal that 

this Court has jurisdiction to review”); Del Pilar v. U.S. Att’y Gen., 326 F.3d 1154, 

1156-57 (11th Cir. 2003) (per curiam) (ruling the BIA’s remand for limited purpose 

of permitting petitioner to designate country of removal constituted final order of 

removal because “there is nothing remaining for [the petitioner] to appeal”).2

 

2

 In cases where the alien filed a timely petition for review from the BIA’s final 

order of removal while the voluntary departure issues were still pending, some 

circuits have declined to exercise jurisdiction over the BIA order for prudential 

reasons pending the IJ’s decision on remand. See Li, 666 F.3d at 153-54; Giraldo, 

(continued) 
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Because the petition for review was filed more than 30 days after the May 

2011 final order of removal, we lack jurisdiction over this petition. Nahatchevska v. 

Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam) (“The filing of a timely 

petition for review is mandatory and jurisdictional and is not subject to equitable 

tolling.” (internal quotation marks omitted)). 

 Accordingly, we dismiss the petition for review. 

 

654 F.3d at 616-18. Others have chosen to exercise their jurisdiction immediately. 

Pinto, 648 F.3d at 985. But here, we lack jurisdiction over the untimely petition for 

review, and accordingly express no opinion on that issue.