FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BAO TAI NIAN, 

Petitioner, No. 07-73643

v. Agency No.  A074-394-421 ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 12, 2012—San Francisco, California

Filed June 28, 2012

Before: Ferdinand F. Fernandez, Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

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COUNSEL

Christy A. Chouteau, Aguirre Law Group A.P.C., San Diego,

California, for the petitioner. 

Eric W. Marsteller, U.S. Department of Justice, Office of

Immigration Litigation, Civil Division, Washington, DC, for

the respondent. 

OPINION

BEA, Circuit Judge:

Bao Tai Nian (“Bao”), a native and citizen of China, petitions for review of the Board of Immigration Appeals’

(“BIA”) decision denying his application for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). Bao arrived in the United States as

an alien crew member. His asylum proceeding was thus limited in scope—a so-called “asylum-only” proceeding.

Because the Immigration Judge (“IJ”) and BIA did not issue

a final order of removal, this case presents the question

whether we have jurisdiction to consider Bao’s petition. We

conclude that we have jurisdiction over the petition, and we

deny review.

NIAN v. HOLDER 7687
I. Content of “asylum-only” proceedings.

This case involves an “asylum-only” proceeding under 8

C.F.R. § 208.2(c). “Asylum-only” proceedings apply to certain groups of aliens who are not entitled to full asylum proceedings under the Immigration and Nationality Act (“INA”),

including alien crew members, stowaways, and aliens who

have entered the country under the Visa Waiver Program. 8

C.F.R. § 208.2(c)(1). These classes of aliens may have been

given limited and temporary permission to enter the United

States, as is the case for crew members landing temporarily

in the United States and for visitors to the United States under

the Visa Waiver Program. However, these limitations mean

that these aliens may not challenge their removal, except that

they may apply for asylum. See, e.g., 8 U.S.C. § 1282(b)

(“[A]ny immigration officer may, in his discretion, if he

determines that an alien is not a bona fide crewman, or does

not intend to depart on the vessel or aircraft which brought

him . . . remove[ ] [the crewman] from the United States

. . . .”); 8 U.S.C. § 1187(b)(2) (“An alien may not be provided

a waiver under the [Visa Waiver Program] unless the alien

has waived any right . . . to contest, other than on the basis

of an application for asylum, any action for removal of the

alien.”). 

“Asylum-only,” however, does not mean that the petitioner

is limited to asylum in the relief he seeks. 8 C.F.R.

§ 208.2(c)(3)(i). No, he may also seek withholding of removal

and protection under the CAT in the “asylum-only” proceeding. Id.; 8 C.F.R. § 1240.1(a)(1)(iii).1

 The limited scope of the

proceedings means that parties are prohibited from raising

“any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility

1The proceedings would more aptly be called “asylum and withholding

of removal and protection under the CAT-only.” See Restrepo v. Holder,

610 F.3d 962, 964 (7th Cir. 2010) (“the phrase [‘asylum-only’] is a misnomer” because the alien may also ask for withholding of removal). 

7688 NIAN v. HOLDER
for any other form of relief.” 8 C.F.R. § 208.2(c)(3)(i). Since

the alien is considered removable—otherwise he would not be

in this proceeding—the IJ will not issue a final order of

removal; the IJ determines only whether the petitioner is entitled to asylum, withholding of removal, or protection under

the CAT. Id. If the petitioner is not entitled to any of the limited relief specified, he is removable and there is no bar to his

removal. So understood, we proceed to consider Bao’s claims.

II. Petitioner’s factual claims; proceedings below.

Bao was a crew member aboard the Zhih Yung, a fishing

vessel seized by the Coast Guard near San Diego. The Coast

Guard found over 150 Chinese nationals on the ship and

arrested the crew members for alien smuggling. Bao agreed

to serve as a material witness in the U.S. government’s prosecution, and he signed a statement against the alien smugglers

—so-called “snakeheads.” He was listed as a government witness, but he did not testify in open court. 

Bao filed for asylum, withholding of removal, and protection under the CAT. In his application, Bao cited two types

of persecution as the basis of his claims: he had been persecuted for violating China’s one-child policy and feared further

persecution if he returned, and he feared persecution at the

hands of the snakeheads for having openly agreed to be a witness against them in the United States. 

Bao’s application was dismissed by the IJ for lack of jurisdiction because Bao was an alien crew member, and alien

crew members must file “asylum-only” applications. The BIA

affirmed the IJ’s dismissal. The Department of Homeland

Security (“DHS”) subsequently brought the current “asylumonly” proceedings under 8 C.F.R. § 208.2(c) by serving Bao

with a Form I-863. On June 4, 2004, the IJ denied Bao’s

applications for asylum, withholding of removal, and protection under the CAT. The BIA affirmed without opinion. Bao

petitioned for review in the Ninth Circuit. The Ninth Circuit

NIAN v. HOLDER 7689
granted DHS’s unopposed motion to remand to the BIA to

consider a letter from an Assistant United States Attorney.

The letter recommended that Bao be permitted to remain in

the United States after having given the government information and agreeing to be listed as a government witness in the

prosecution of the snakeheads. The BIA again dismissed

Bao’s appeal, this time in a written decision. Bao timely petitioned for review. 

III. Jurisdiction to consider petitioner’s petition for

review of denial of relief in “asylum-only” proceedings.

[1] Under 8 U.S.C. § 1252(a)(1), we have jurisdiction to

review a “final order of removal.” The “asylum-only” proceedings below were conducted pursuant to 8 C.F.R.

§ 208.2(c) because Bao entered the country as an alien crew

member. Thus, the IJ and BIA denied Bao’s claims for asylum, withholding of removal, and protection under the CAT,

but did not issue a final order of removal. We therefore must

answer the question whether the BIA’s denial of asylum in

“asylum-only” proceedings is the equivalent of a final order

of removal such that we have jurisdiction under 8 U.S.C.

§ 1252(a)(1).2

[2] We have never addressed this issue in a published

opinion. The four circuits to have considered the question all

held that they had jurisdiction over “asylum-only” proceedings even in the absence of a final order of removal. See

Restrepo v. Holder, 610 F.3d 962, 964 (7th Cir. 2010) (exercising jurisdiction over alien crew member’s petition in

“asylum-only” proceedings); Mitondo v. Mukasey, 523 F.3d

784, 787 (7th Cir. 2008); Shehu v. Att’y Gen., 482 F.3d 652,

2The parties submitted letter briefs on the issue and both agree that this

court has jurisdiction to review Bao’s petition. However, “we have the

obligation to confirm our jurisdiction sua sponte“ before reaching the merits. Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 763 (9th Cir. 2007).

7690 NIAN v. HOLDER
656 (3d Cir. 2007); Kanacevic v. INS, 448 F.3d 129, 134-35

(2d Cir. 2006) Nreka v. Att’y Gen., 408 F.3d 1361, 1367 (11th

Cir. 2005). The Second, Third, Seventh and Eleventh Circuits

all concluded that jurisdiction lies over “asylum-only” proceedings because the BIA’s denial of relief is the “functional

equivalent” of a final order of removal. E.g., Kanacevic, 448

F.3d at 134. 

[3] An alien crew member who lands in the United States

without authorization or whose authorization is revoked is not

entitled to a hearing and is statutorily required to be “removed

from the United States at the expense of the transportation

line which brought him.” 8 U.S.C. § 1282(b); see also 8

C.F.R. § 252.2(b) (an alien crew member whose landing permit has expired may be “removed from the United States

without a hearing, except as provided in § 208.2(b)(1),” the

asylum-only statute); 8 U.S.C. § 1284(c). Thus, Bao is already

removable, pending only the result of his “asylum-only” proceedings. Once he is denied any relief, Bao can be removed

by “any immigration officer.” 8 U.S.C. § 1282(b). 

As the Second Circuit stated in Kanacevic, “Although the

denial of asylum in [an ‘asylum-only’]3 case does not occur

in the context of removal proceedings, denial of the asylum

application is the functional equivalent of a removal order

. . . .” 448 F.3d at 134. The panel continued, “Were we to elevate form over substance by holding that the disposition of

asylum-only proceedings does not function as a final order of

removal to confer jurisdiction, we would create uncertainty

over exactly what procedure [an ‘asylum-only’] applicant

could pursue in order to obtain review of his or her asylum

proceedings in the Courts of Appeals.” Id. at 135. See also

Mitondo, 523 F.3d at 787 (“an order that is proper only if the

3Kanacevic considered the jurisdictional issue in the context of a Visa

Waiver Program applicant. 448 F.3d at 134. Visa Waiver Program applicants are subject to the same “asylum-only” proceedings as alien crew

members. 8 C.F.R. § 208.2(c)(1)(iii). 

NIAN v. HOLDER 7691
alien is removable implies an order of removal” (emphasis in

original)).

Further, we have stated in a different context that, in certain

circumstances, “the BIA’s order dismissing [an] appeal on the

question of asylum is necessarily a final order . . . [because]

the [BIA] considered and decided the merits of the appeal

before dismissing it.” Junming Li v. Holder, 656 F.3d 898,

904 (9th Cir. 2011) (exercising jurisdiction to review the

BIA’s denial of asylum where the BIA also remanded for

completion of background checks required before withholding

of removal could be granted).

[4] For the same reasons as expressed in the opinions of

our sister circuits, we hold that the denial of an alien crew

member’s petition for asylum and other relief in “asylumonly” proceedings is the “functional equivalent” of a final

order of removal. Such an order constitutes a “final order of

removal” within the meaning of 8 U.S.C. § 1252(a)(1). Thus,

we have jurisdiction to review Bao’s petition from the BIA’s

denial of asylum, withholding of removal, and protection

under the CAT. 

IV. Merits of petitioner’s claims. 

For the reasons stated in a separate memorandum disposition filed concurrently with this opinion, we deny Bao’s petition for review. 

PETITION DENIED. 

7692 NIAN v. HOLDER