FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SURINDER SINGH, 

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General, 

Respondent.

No. 12-74163

Agency No. 

A079-579-046

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submission Deferred February 3, 2016

Resubmitted September 1, 2016*

Seattle, Washington

Filed September 1, 2016

Before: Alex Kozinski, Diarmuid F. O’Scannlain,

and Ronald M. Gould, Circuit Judges.

Per Curiam Opinion

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 SINGH V. LYNCH

SUMMARY**

Immigration

The panel held that it lacked jurisdiction to review a

petition for review of a Board of Immigration Appeals’

decision following remand to an immigration judge for

voluntary departure advisals.

In petitioner’s first appeal to the Board, the Board

affirmed the IJ’s denial of asylum, withholding of removal,

and Convention Against Torture relief, but remanded to the

IJ for voluntary departure advisals. Petitioner did not file a

petition for review within 30 days of that Board decision.

On remand, the IJ again granted voluntary departure with

an alternate order of removal. Petitioner again appealed the

IJ’s decision to the Board, but did not allege that the IJ had

made errors of law or fact on remand. The Board summarily

dismissed petitioner’s second appeal, declined to reinstate

voluntary departure, and ordered petitioner removed. 

Petitioner then filed a timely petition for review of that

decision.

Applying Rizo v. Lynch, 810 F.3d 688 (9th Cir. 2016), the

panel held that the Board’s decision remanding for further

proceedings as to voluntary departure did not affect the

finality of an otherwise-final order of removal, and the IJ’s

decision as to the merits of petitioner’s claims for relief

became unreviewable upon expiration of the 30 day period to

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SINGH V. LYNCH 3

petition for review to this court. Because petitioner did not

file a petition for review within that 30 day window, the panel

held that it lacked jurisdiction over the petition. 

COUNSEL

Bart Klein, Law Offices of Bart Klein, Seattle, Washington,

for Petitioner.

Edward E. Wiggers, Jennifer L. Lightbody and Patrick J.

Glen, Senior Litigation Counsel; Donald E. Keener, Deputy

Director; Benjamin C. Mizer, Principal Deputy Assistant

Attorney General; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

PER CURIAM:

We must decide whether we have jurisdiction over a

petition for review of a Board of Immigration Appeals

decision remanding to the Immigration Judge solely for

voluntary departure proceedings.

I

On May 5, 2009, an Immigration Judge (IJ) denied Indian

citizen Surinder Singh’s applications for asylum, withholding

of removal, and protection under the Convention Against

Torture (CAT). The IJ granted Singh voluntary departure

with an alternate order of removal to India. Singh appealed
4 SINGH V. LYNCH

the IJ’s decision to the Board of Immigration Appeals (BIA). 

On June 22, 2011, the BIA affirmed the denial of asylum,

withholding of removal, and CAT relief, but remanded the

case to the IJ “to provide all advisals required upon granting

voluntary departure.”1 Singh did not file a petition to this

court for review of the BIA order within 30 days of the June

2011 decision.

On remand, the IJ gave Singh the required advisals and

again granted voluntary departure with an alternate order of

removal to India. Singh again appealed the IJ’s decision to

the BIA; he did not allege that the IJ had made errors of law

or fact on remand. On November 29, 2012, the BIA

summarily dismissed Singh’s second appeal, declined to

reinstate voluntary departure, and ordered Singh removed to

India pursuant to the IJ’s alternate order. On December 20,

2012, Singh timely filed this petition for review. 

II

Our jurisdiction to review a deportation decision is

limited to a “final order of removal.” 8 U.S.C. 

§§ 1252(a)(1), (b)(9); Viloria v. Lynch, 808 F.3d 764, 767

(9th Cir. 2015); Alcala v. Holder, 563 F.3d 1009, 1016 (9th

Cir. 2009). 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); Stone v. I.N.S., 514 U.S. 386, 405 (1995). This

deadline is “mandatory and jurisdictional.” Magtanong v.

Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007) (per curiam). 

1 An IJ who grants voluntary departure is required to advise an alien that

he must, within 30 days of filing an appeal with the BIA, submit sufficient

proof that he has posted a voluntary departure bond with the Department

of Homeland Security. See 8 C.F.R. § 1240.26(c)(3), (3)(ii).
SINGH V. LYNCH 5

“A mandatory and jurisdictional rule cannot be forfeited or

waived, and courts lack the authority to create equitable

exceptions to such a rule.” Id. (citation omitted).

A

The text of the Immigration and Nationality Act (INA)

“does not explicitly define the term ‘final order of removal.’” 

Shaboyan v. Holder, 652 F.3d 988, 990 (9th Cir. 2011) (per

curiam). However, INA § 101(a)(47), 8 U.S.C.

§ 1101(a)(47), “does define the term ‘order of deportation’

and establishes when such an order becomes final.” 

Shaboyan, 652 F.3d at 990; see Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,

§ 440, 110 Stat. 1214.2

The INA defines the term “order of deportation” as “the

order of the [IJ

3

] . . . concluding that the alien is deportable or

ordering deportation.” 8 U.S.C. § 1101(a)(47)(A).

2 We have explained that, in this context, “the terms ‘deportable’ and

‘deportation’ can be used interchangeably with the terms ‘removable’ and

‘removal,’ respectively.” Lolong v. Gonzales, 484 F.3d 1173, 1177 n.2

(9th Cir. 2007) (en banc); see Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, § 309(d)(2),

110 Stat. 3009 (“[A]ny reference in law to an order of removal shall be

deemed to include a reference to an order of exclusion and deportation or

an order of deportation.”).

3 The statute uses the term “special inquiry officer.” 8 U.S.C.

§ 1101(a)(47)(A). Regulations “in effect at the time Congress passed 8

U.S.C. § 1101(a)(47) defined ‘immigration judge’ to mean a ‘special

inquiry officer and may be used interchangeably with the term special

inquiry officer wherever it appears in this chapter.’” Molina-Camacho v.

Ashcroft, 393 F.3d 937, 940 (9th Cir. 2004) (citing 8 C.F.R. § 1.1(l)

(1996)), overruled on other grounds by Lolong, 484 F.3d 1175.
6 SINGH V. LYNCH

The order described under subparagraph (A)

shall become final upon the earlier of— 

(i) a determination by the Board of

Immigration Appeals affirming such order; or 

(ii) the expiration of the period in which the

alien is permitted to seek review of such order

by the Board of Immigration Appeals.

Id. § 1101(a)(47)(B). The statute does not define “affirming

such order.”

When the BIA affirms in full the IJ’s order of removal,

that decision obviously constitutes “a determination by the

[BIA] affirming such order,” and is thus a final order of

removal. See Abdisalan v. Holder, 774 F.3d 517, 521 (9th

Cir. 2014) (en banc). However, when the BIA does not

affirm in full, but rather affirms in part and remands, finality

is less clear. In such a case, is the BIA “affirming” the IJ’s

order of removal? The statutory text does not provide a clear

answer.

B

This question is not one of first impression for our court. 

Under Pinto v. Holder, “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 . . . and, effectively, the only order that we can
SINGH V. LYNCH 7

review.” 648 F.3d 976, 980 (9th Cir. 2011).4 Because the

BIA’s June 2011 decision remanding solely for voluntary

departure proceedings is a “final order of removal,” the IJ’s

order became unreviewable on July 23, 2011 upon expiration

of the 30 day period to petition for review to this court. In

light of Pinto and consistent with the Sixth and Tenth

Circuits, we must conclude that we lack jurisdiction over

Singh’s current petition. See Hih v. Lynch, 812 F.3d 551, 554

(6th Cir. 2016); Batubara v. Holder, 733 F.3d 1040, 1042–43

(10th Cir. 2013). 

4 After Pinto was decided, an en banc panel of our court issued

Abdisalan. Abdisalan concluded that, “[w]hen the BIA remands to the IJ

for any reason, no final order of removal exists until all administrative

proceedings have concluded.” 774 F.3d at 526. However, we explicitly

declined to address remands for voluntary departure and did not overrule

Pinto. See id. at 526 n.8 (“Under the facts of this case, we need not revisit

our rule that the BIA’s decision is a final order of removal when it

remands for consideration of voluntary departure but denies all other

forms of relief.”). 

Recognizing that Abdisalan’s broadly stated conclusion created some

tension with Pinto, we ordered supplemental briefing on whether Pinto

should be overruled in light of the reasoning and holding of Abdisalan. 

While that briefing was pending, another three-judge panel decided Rizo

v. Lynch, 810 F.3d 688 (9th Cir. 2016). Rizo concluded that “Pinto

remains the law of the Circuit.” Id. at 691. Consequently, the Rizo panel

determined that a “BIA remand for further proceedings as to voluntary

departure does not affect the finality of an otherwise-final order of

removal.” Id. at 692. We directed the parties to address Rizo in their

supplemental briefs. Both the government and Singh argued that Rizo was

wrongly decided. A judge requested a vote on whether to rehear Rizo en

banc, but a majority of nonrecused active judges did not vote in favor of

rehearing en banc. Rizo and Pinto thus remain law of the circuit, and our

three-judge panel is bound to apply them faithfully.
8 SINGH V. LYNCH

Under the circumstances, Singh remains subject to

immediate removal to India.

DISMISSED.