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
COUNSEL

Sung U. Park, Esq., Law Offices of Sung U. Park, Los Angeles, California, for the petitioner.

Dalin R. Holyoak, Trial Attorney, Office of Immigration Litigation, 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

10778 PINTO v. HOLDER
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 January 20, 2009 deprives us of jurisdiction in this case. Because

neither Dada nor the new regulation undermines our jurisdictional 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 present 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

1Exercising our jurisdiction, we deny the petition for review on the merits in a memorandum disposition filed concurrently with this opinion. 

PINTO v. HOLDER 10779
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 discretionary relief from removal, the BIA then remanded the case

to the IJ for the limited purpose of considering whether Petitioner 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 concluded 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 “remanded 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

2As we have previously explained, the terms “order of deportation” and

“order of removal” are interchangeable. See Lolong, 484 F.3d at 1177 n.2.

10780 PINTO v. HOLDER
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 petitioner’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 tribunals 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.’ ” MolinaCamacho, 393 F.3d at 941. Accordingly, we held that

“[b]ecause the BIA chose not to remand to the IJ for the issuance 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

PINTO v. HOLDER 10781
order even though that decision definitively adjudicated petitioner’s removability.

[2] Three years later we went en banc to overrule MolinaCamacho 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 discretionary 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 determined 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 removable . . . 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 deportation becomes final upon “a determination by the [BIA]

affirming [the IJ’s order concluding that the alien is deportable]”).

3At 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. NoriegaLopez, 335 F.3d at 882. 

10782 PINTO v. HOLDER
C

[3] Our precedent unambiguously dictates that Pinto petitioned for review from a final order of removal. The IJ’s decision 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 eligibility 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 promulgation 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

PINTO v. HOLDER 10783
to forgo a ruling on a pending, unresolved motion to reopen

the removal proceedings.” 554 U.S. at 4. Resolving this question required the Court to harmonize two statutory provisions

of IIRIRA, one dealing with motions to reopen removal proceedings (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 prevent 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 pursue his motion to reopen and, by doing so, overstays the voluntary 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 prescribed departure period without suffering the statutory penalties otherwise associated with a failure to depart. Id. at 20-22.

10784 PINTO v. HOLDER
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 interpretation 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 agreedupon exchange of benefits, much like a settlement agreement,” 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 granting . . . 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 automatically upon the filing of the petition or other judicial challenge and the alternate order of removal . . . shall immediately

take effect . . . .” Id. § 1240.26(i). Consistent with Dada, this

PINTO v. HOLDER 10785
new regulation thus “reinforces the nature of voluntary departure 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 costless departure. Accordingly, DHS urges us to “revisit

[Lolong] in view of the recent developments in the law governing 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.

4The government’s supplemental brief on jurisdiction discusses only

Castrejon and does not mention Lolong. Because Lolong succeeds Castrejon 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 Castrejon as an argument to overrule Lolong. 

10786 PINTO v. HOLDER
As a three-judge panel, our ability to overrule existing circuit 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] precedent . . . 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 regulation nor Dada undermines our previous jurisdictional holding 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 substantively 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 departure 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).

PINTO v. HOLDER 10787
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 [voluntary] 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 Immigration 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 departure, 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 voluntary 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 reconcile the statutory definition of “final order of removal” with

the administration of voluntary departure. For example, immigration judges could grant voluntary departure in the alternative when granting relief from removal, or the BIA could

10788 PINTO v. HOLDER
remand for a new order of removal when remanding for consideration of voluntary departure.

B

Similarly, the new voluntary departure regulation does not

deprive us of jurisdiction in the present case because a regulation cannot amend the clear and unambiguous statutory definition 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 departure. 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 circumstances [it specifies], so there is no need to resort to [regulations] 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 precept 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 extinguishes 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,

PINTO v. HOLDER 10789
[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 Departure: Effect of a Motion To Reopen or Reconsider or a Petition 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 proceedings 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 effectiveness 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). 

10790 PINTO v. HOLDER
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 abandonment of a pending petition for review, and the regulation provides 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 administratively final order.” Id. § 1240.26(i). Perhaps aware of this

problem, DHS argues we should decline to exercise jurisdiction 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 asylum 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 . . . regulation assumes a chronological order, i.e., that the grant of

voluntary departure precedes the filing of a petition for judicial 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

PINTO v. HOLDER 10791
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 voluntary 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 departure 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 retroactively despite the government’s contrary assurance and

because it would also effectively rewrite the regulation.

10792 PINTO v. HOLDER
III

The government also argues in a Rule 28(j) letter that Fernandes 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 asylum, but the BIA “found that Fernandes had satisfied his burden of proving past persecution, which gave rise to a

rebuttable presumption that Fernandes would face future persecution,” 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 government moved to reopen the proceedings to introduce new evidence 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 application 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 government argues that the BIA’s failure to limit the scope of the

remand in this case to Pinto’s eligibility for voluntary departure “demonstrates that . . . Pinto does not have a final order

of removal” because “the IJ may consider other claims or evidence . . . in remanded proceedings.” We disagree for two

reasons. First, the BIA’s decision in this case did specifically

PINTO v. HOLDER 10793
remand the case to the IJ “for the limited purpose of considering 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 eligibility for asylum, Fernandes correctly refused to preclude

the IJ from considering other issues that may affect petitioner’s eligibility for discretionary relief unless the BIA

expressly conditioned in remand; after all, under these circumstances the merits of the alien’s eligibility for discretionary relief remain very much in question. But we do not read

Fernandes to allow reconsideration of the petitioner’s eligibility for discretionary relief in cases like Pinto’s where the BIA

definitively adjudicates this issue and where the only lingering 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 departure regulation undermines our precedent, we have jurisdiction over Pinto’s petition for review under 8 U.S.C. § 1252(a)

and we may review the merits of his petition. 

10794 PINTO v. HOLDER