FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMA ABDIAZIZ ABDISALAN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 10-73215

Agency No.

A095-406-303

SAMA ABDIAZIZ ABDISALAN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 11-71124

Agency No.

A095-406-303

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc

June 19, 2014—Seattle, Washington

Filed December 15, 2014
2 ABDISALAN V. HOLDER

Before: Sidney R. Thomas, Chief Judge, and Alex

Kozinski, Kim McLane Wardlaw, Ronald M. Gould,

Richard A. Paez, Marsha S. Berzon, Richard C. Tallman,

Sandra S. Ikuta, Mary H. Murguia, Jacqueline H. Nguyen,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Wardlaw

SUMMARY*

Immigration

Overruling Li v. Holder, 656 F.3d 898 (9th Cir. 2011), as

well as Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013),

to the extent it relied on Li, the en banc court held that when

the Board of Immigration Appeals issues a decision that

denies some claims, but remands any other claims for relief

to an Immigration Judge for further proceedings, the Board

decision is not a final order of removal with regard to any of

the claims, and it does not trigger the thirty-day window in

which to file a petition for review. 

The court explained that its holding renders premature

any pending petitions for review that were filed in this court

while background checks or other remanded proceedings

were ongoing, but that it would be unfair to punish those

petitioners who reasonably relied on Li in filing their

premature petitions. The court therefore held that any

pending petitions rendered premature by today’s decision

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

been prepared by court staff for the convenience of the reader.
ABDISALAN V. HOLDER 3

shall be treated as automatically ripening into timely petitions

upon the completion of remanded proceedings, regardless of

whether those proceedings have already concluded. The

court noted that its holding extends only to petitioners whose

petitions for review were filed in this court before the date of

this decision.

The court noted that, under the facts of this case, it need

not revisit the rule in Pinto v. Holder, 648 F.3d 976, 980 (9th

Cir. 2011), and Castrejon-Garcia v. INS, 60 F.3d 1359, 1361-

62 (9th Cir. 1995), that the Board’s decision is a final order

of removal when it remands for consideration of voluntary

departure, but denies all other forms of relief.

In light of its holding regarding finality, the court held

that it had jurisdiction to consider petitioner’s challenge to the

Board’s determination that her asylum application was timebarred. 

The court remanded, as it did in Singh v. Holder, 649 F.3d

1161, 1164-65 (9th Cir. 2011) (en banc), for the Board to

address in the first instance whether an asylum applicant’s

credible and uncontradicted testimony regarding her date of

entry meets the statutory “clear and convincing evidence”

standard for timeliness. 

COUNSEL

Vicky Dobrin and Hilary Han (argued), Dobrin & Han, PC,

Seattle, Washington, for Petitioner.
4 ABDISALAN V. HOLDER

Linda Y. Cheng, Patrick J. Glen, and Jesi J. Carlson (argued),

Office of Immigration Litigation, United States Department

of Justice, Washington, D.C., for Respondent.

Deborah S. Smith, University of Idaho College of Law,

Moscow, Idaho, for Amicus Curiae American Immigration

Lawyers Association.

Charles Roth, Chicago, Illinois, for Amicus Curiae National

Immigration Justice Center.

OPINION

WARDLAW, Circuit Judge:

When does an order of removal become “final” for the

purpose of seeking judicial review? Panels of our court have

reached varying conclusions, creating unnecessary confusion

as to the timeliness of petitions for review and our

jurisdiction to entertain them. We reheard this matter en banc

to clarify the issue of finality of the Board of Immigration

Appeals’ (“BIA”) decisions. Today, we adopt a

straightforward rule: when the Board of Immigration Appeals

issues a decision that denies some claims but remands any

other claims for relief to an Immigration Judge (“IJ”) for

further proceedings (a “mixed” decision),1the BIA decision

1 There are several ways that an alien could be eligible for certain forms

of relief but ineligible for others. For instance, she could meet the “wellfounded fear” bar for asylum but fail to meet the stricter “more likely than

not” standard for withholding ofremoval and CAT. See Ahmed v. Keisler,

504 F.3d 1183, 1199–1200 (9th Cir. 2007). Alternatively, because the

standard for asylum includes a one-year filing limitation, see 8 U.S.C.
ABDISALAN V. HOLDER 5

is not a final order of removal with regard to any of the

claims, and it does not trigger the thirty-day window in which

to file a petition for review.

As a result, we have jurisdiction to consider petitioner’s

asylum claim, but we remand to the BIA in light of Singh v.

Holder, 649 F.3d 1161 (9th Cir. 2011) (en banc).

I.

Sama Abdiaziz Abdisalan is a 36-year-old native and

citizen of Somalia. Abdisalan asserts that she entered the

United States in February 2002. On March 25, 2002,

Abdisalan filed an application for asylum, withholding of

removal, and protection under the Convention Against

Torture (“CAT”). She claimed that in Somalia, she was

forced to undergo female genital mutilation and was

kidnapped and raped by members of a rival clan. Abdisalan

appeared at a merits hearing before an IJ in 2007. The IJ

found that Abdisalan was credible, but denied her asylum

claim as time-barred, concluding that she had not

demonstrated by clear and convincing evidence that she filed

her asylum application within one year of arriving in the

United States. The IJ did, however, grant Abdisalan

withholding of removal as to Somalia.2

§ 1158(a)(2)(B), whereas withholding and CAT do not, an applicant could

be eligible for withholding or CAT relief but not asylum. Here, for

example, the IJfound that Abdisalan qualified for withholding ofremoval,

but also concluded that she was ineligible for asylum because she failed

to file her application within one year of entering the United States.

2 The IJ also denied Abdisalan’s CAT claim on the merits. Abdisalan

did not appeal this claim to the BIA.
6 ABDISALAN V. HOLDER

Abdisalan appealed the IJ’s asylum determination, and the

Government declined to challenge the IJ’s grant of

withholding. In November 2008, the BIA affirmed the IJ’s

denial of Abdisalan’s asylum claim and remanded for

background checks related to her withholding claim. 

Abdisalan did not file a petition for review of the BIA’s 2008

decision.

In June 2009, the Government completed its background

checks, and the IJ issued another order granting Abdisalan

withholding of removal. Abdisalan again appealed to the

BIA, challenging the agency’s previous determination that

her asylum claim was time-barred. The BIA treated this

appeal as an untimely motion to reconsider and dismissed it

in a September 2010 decision. The BIA again remanded the

matter to the IJ for updated background checks. Finally, in

March 2011, the IJ issued an order confirming that Abdisalan

had completed another round of background checks. This

order also reaffirmed the grant of withholding and reiterated

that Abdisalan’s asylum claim had been denied. Abdisalan

then filed in this court petitions for review of the 2010 BIA

decision and the 2011 IJ order, challenging the finding that

her asylum claim is time-barred. The two petitions have been

consolidated for our review.

A divided three-judge panel of our court held that it

lacked jurisdiction over Abdisalan’s consolidated petition

because she failed to file a petition for review within thirty

days of the BIA’s 2008 decision affirming the IJ’s denial of

her asylum claim. Abdisalan v. Holder, 728 F.3d 1122, 1125

(9th Cir. 2013). A majority of active, nonrecused judges

voted to rehear the petition for review en banc. 750 F.3d

1098 (9th Cir. 2014).
ABDISALAN V. HOLDER 7

II.

We have jurisdiction to determine our own jurisdiction. 

Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000). In this

instance, whether we have jurisdiction is a purely legal

question, which we determine de novo. Annachamy v.

Holder, 733 F.3d 254, 258 (9th Cir. 2013).

III.

A.

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). This time limit is “mandatory and

jurisdictional.” Stone v. INS, 514 U.S. 386, 405 (1995)

(internal quotation marks omitted). As a result, the “point at

which a removal order becomes final is critical for the

purposes of timely petitioning for judicial review.” OrtizAlfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012).

In the ordinary case, this point is easy to determine: the

thirty-day clock begins to run when the BIA issues a decision

that affirms in full the IJ’s order of removal. However, as

here, an alien often seeks more than one avenue of relief from

deportation in a single application. Commonly the alien will

seek asylum, withholding of removal, and CAT relief, or, in

the alternative, voluntary departure. The standards for

obtaining such relief vary,

3

so that, for example, an alien may

3 An applicant for asylum must show “a well-founded fear of

persecution on account of” one of five protected grounds. 8 U.S.C.

§ 1101(a)(42)(A). An applicant for withholding of removal must show

that her “life or freedom would be threatened” on account of one of those
8 ABDISALAN V. HOLDER

be able to obtain withholding but not asylum. Finality is less

obvious when the BIA affirms the denial of relief on some of

an alien’s claims for relief but remands to the IJ for further

proceedings on others in a “mixed” decision. Does that BIA

decision constitute a “final order of removal” with regard to

the claims denied? To date, we have offered conflicting

answers to that question.

In Go v. Holder, 640 F.3d 1047 (9th Cir. 2011), the IJ

denied the petitioner’s asylum, withholding, and CAT claims. 

The BIA affirmed as to asylum and withholding, but

remanded for further consideration of the petitioner’s CAT

claim. Id. at 1050. After additional proceedings before the

IJ, the BIA affirmed the denial of CAT relief. Id. at 1051. 

The petitioner never filed a petition for review of the first

BIA decision, but he timely filed a petition challenging the

second BIA decision, seeking judicial review of all three

claims. Id. We held that “because Go’s removal order did

not become final until the Board rejected each of his claims

for relief, . . . our jurisdiction extends to each of his claims.” 

Id. at 1052. We acknowledged that the BIA’s first decision

“may have been the final administrative decision with respect

to Go’s eligibility for asylum and withholding relief,” but

explained that “that decision was not a final order of removal

because it left open the possibility that Go might obtain CAT

relief” and therefore avoid removal. Id. at 1051.

same protected grounds. 8 U.S.C. § 1231(b)(3)(A). To qualify for relief

under CAT, an applicant must establish that “it is more likely than not that

he or she would be tortured.” 8 C.F.R. § 208.16(c)(2). Alternatively, the

Attorney General may deny relief but permit voluntary departure if the

applicant is notremovable due to an aggravated felony or terrorist activity. 

8 U.S.C. § 1229c(a)(1).
ABDISALAN V. HOLDER 9

We reached a contrary conclusion in Li v. Holder,

656 F.3d 898 (9th Cir. 2011). In Li, the IJ denied the

petitioner’s asylum claim but granted withholding of

removal. Id. at 900. On appeal, the BIA affirmed the IJ’s

denial of asylum, but as in Abdisalan’s case, remanded the

matter to the IJ “to complete background checks required

before withholding of removal can be granted.” Id. at 899. 

We held that the BIA decision was a “final order” as to the

petitioner’s asylum claim because it “was not the subject of

the remand, and the board considered and decided the merits

of the [asylum] appeal before dismissing it.” Id. at 904. We

therefore concluded that “where the BIA denies [one form of]

relief and remands . . . for background checks required for

alternative relief, we have jurisdiction to consider an appeal

of the final order denying relief.” Id.

In Ortiz-Alfaro, we recognized that “Go appears to be at

odds with Li.” 694 F.3d at 959. We attempted to sidestep

that tension by observing that in both Go and Li, “all

administrative proceedings had concluded at the time we

decided that we had jurisdiction.” Id. We held that we

lacked jurisdiction over Ortiz-Alfaro’s petition because

“administrative proceedings are ongoing in [his] case.” Id.

Despite our efforts in Ortiz-Alfaro, the divided Abdisalan

panel opinion correctly perceived an intractable conflict
10 ABDISALAN V. HOLDER

between Go and Li.

4 We agreed to rehear this case en banc to

resolve that conflict.

The stakes for Abdisalan are high: if the BIA’s 2008

decision was a final order of removal with regard to her

asylum claim, as in Li, then she lost her opportunity to

challenge the agency’s denial of that claim when she failed to

file a petition for review of the 2008 decision. But if the

BIA’s 2008 decision was not a final order of removal, as in

Go, then we have jurisdiction to review Abdisalan’s asylum

claim as part of her subsequent petitions for review. This

difference is not without significance.5 Both Abdisalan and

the Government urge us to follow Go and overrule Li. 

Because Go’s approach better aligns with the text of the

 

4

 Our sister circuits have also reached divergent holdings on this issue. 

The Seventh Circuit has held that a BIA decision denying some claims but

remanding others is final with regard to the claims denied. Viracacha v.

Mukasey, 518 F.3d 511, 513 (7th Cir. 2008) (holding that BIA’s decision

affirming denial of asylum but remanding for completion of background

checks related to withholding was a reviewable “final order” as to

asylum). The Third and Eighth Circuits, however, have held that a mixed

BIA decision is not final. Vakker v. Att’y Gen. of the U.S., 519 F.3d 143,

147–48 (3d Cir. 2008) (holding that BIA’s decision was not a “final order

of removal” because it “did not finally adjudicate all issues in the

proceeding in which it was entered”); Goromou v. Holder, 721 F.3d 569,

576 n.6 (8th Cir. 2013) (holding that BIA decision affirming denial of

asylum but remanding for completion of background checks “is a nonfinal order for purposes of judicial review”).

 

5

 The grant of asylum is a broader form of relief that sets one on a path

to citizenship. One year after being granted asylum, an asylee may apply

for adjustment of status to lawful permanent resident. See 8 U.S.C.

§ 1159(b). In contrast, the grant of withholding of removal merely

prevents one from being removed to the country where one’s life or

freedom would be threatened on account of a protected ground. See INS

v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999).
ABDISALAN V. HOLDER 11

Immigration and Nationality Act (“INA”) and the agency’s

implicit interpretations of the INA, we agree.

B.

We begin with our own jurisdictional statute, 8 U.S.C.

§ 1252. We have jurisdiction to review “a final order of

removal.” Id. § 1252(a)(1). Congress has defined an order of

removal6

as “the order” of the IJ “concluding that the alien is

deportable or ordering deportation.” Id. § 1101(a)(47)(A). 

“The order” then becomes “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).

A straightforward reading of this text indicates that an

order of removal cannot become final for any purpose when

it depends on the resolution of further issues by the IJ on

remand. The INA’s repeated reference to “the” order

suggests that Congress contemplated that an alien’s removal

proceedings would typically culminate in one final order of

removal. See In re HP Inkjet Printer Litig., 716 F.3d 1173,

1181 (9th Cir. 2013) (interpreting the statutory term “the” to

mean “singular”); In re Cardelucci, 285 F.3d 1231, 1234 (9th

6 The INA refers to an “order of deportation,” but its definition also

applies to the post-REAL ID Act term “order of removal.” Singh v.

Gonzales, 499 F.3d 969, 979 (9th Cir. 2007).
12 ABDISALAN V. HOLDER

Cir. 2002) (observing that the “definite article ‘the’

particularizes the subject which it precedes and is [a] word of

limitation as opposed to [the] indefinite or generalizing force

‘a’ or ‘an’” (quoting BLACK’S LAW DICTIONARY 1477 (6th

ed. 1990)); cf. Stone, 514 U.S. at 393–95 (holding that an

amendment to the INA in 1990 abrogated the default

presumption that “Congress visualized a single administrative

proceeding in which all questions relating to an alien’s

deportation would be raised and resolved,” but that it did so

only in the specific context of motions to reopen and

reconsider (internal quotation marks omitted)). If there is

only one final order of removal—as is true in the absence of

a motion to reopen or reconsider—it is difficult to conceive

how the order could become final at multiple points in time.

Congress’s use of the word “final” strengthens this view. 

“Final” commonly means “[m]arking the last stage of a

process; leaving nothing to be looked for or expected;

ultimate.” Final, OXFORD ENGLISH DICTIONARY,

http://www.oed.com/view/Entry/70319 (last visited Aug. 11,

2014). In the legal context, the term “final” refers to an order

“ending a court action or proceeding leaving nothing further

to be determined by the court or to be done except the

administrative execution of the court’s finding . . . .” 

WEBSTER’S THIRD NEW INT’L DICTIONARY 851 (2002); see

also BLACK’S LAW DICTIONARY 747 (10th ed. 2014)

(defining “final” as “not requiring any further judicial action

by the court that rendered judgment to determine the matter

litigated; concluded”). Congress’s use of this familiar term

suggests that it did not intend for an order of removal to

become final while remanded proceedings are ongoing.

Although the statutory text provides a strong indication of

how we should treat mixed BIA decisions, it “does not speak
ABDISALAN V. HOLDER 13

unambiguously to the issue here.” Scialabba v. Cuellar de

Osorio, 134 S. Ct. 2191, 2203 (2014). In particular, the dual

reference to “the order . . . concluding that the alien is

deportable or ordering deportation” could suggest that two

different kinds of orders are covered; an alien could be

deportable but not ordered deported (because he is possibly

entitled to some form of relief from deportation). See

8 U.S.C. § 1101(a)(47)(A) (emphasis added). The language

of the INA thus does not completely foreclose the possibility

that a mixed BIA decision could constitute a final order of

removal with regard to the claims denied. For further

guidance, we turn to the agency’s interpretations.

Neither the BIA nor the Executive Office for Immigration

Review (“EOIR”) has expressly addressed the issue before

us. Nonetheless, the agency’s regulations, and particularly its

interpretations of those regulations, bolster the view that a

mixed BIA decision is not “final” with regard to any of the

alien’s claims. These well-reasoned, if indirect,

interpretations further persuade us that in the absence of a

motion to reopen or reconsider, there is only one final order

of removal per alien, and that order does not become final

until background checks or other remanded proceedings are

complete. Cf. Mejia-Hernandez v. Holder, 633 F.3d 818, 822

(9th Cir. 2011) (applying Skidmore deference to the BIA’s

interpretation “proportional to its thoroughness, reasoning,

consistency, and ability to persuade”).7

7 Although we find the agency’s interpretations persuasive under

Skidmore, we conclude that neither Chevron nor Auer deference is

appropriate. The question presented here is whether the BIA’s 2008

decision was a “final order of removal” within the meaning of 8 U.S.C.

§ 1252, our jurisdictional statute. Just as we refuse to apply Chevron

deference when an agency purports to directly define our jurisdiction, see

Dandino, Inc. v. U.S. Dep’t of Transp., 729 F.3d 917, 920 n.1 (9th Cir.
14 ABDISALAN V. HOLDER

As a general matter, EOIR regulations provide that the

BIA “may return a case to . . . an immigration judge for such

further action as may be appropriate, without entering a final

decision on the merits of the case.” 8 C.F.R. § 1003.1(d)(7)

(emphasis added). Also relevant to the particular

circumstances before us is that a comprehensive set of

regulations and BIA decisions governs background checks. 

By regulation, the BIA may not grant certain forms of relief,

including withholding of removal, until background checks

have been completed. 8 C.F.R. § 1003.1(d)(6)(i). If

background checks must be completed or updated, the BIA

may remand to the IJ with instructions to carry out the

checks. Id. § 1003.1(d)(6)(ii)(A). When a case is remanded

to the IJfor background checks, the IJis required to “consider

the results of the identity, law enforcement, or security

investigations or examinations,” and “[i]f new information is

presented, the immigration judge may hold a further hearing

if necessary to consider any legal or factual issues, including

issues relating to credibility, if relevant.” Id. § 1003.47(h). 

“The immigration judge shall then enter an order granting or

denying the immigration relief sought.” Id. Similarly,

EOIR’s interim rule governing background checks states that

when required checks have not been completed, “the Board

will not be able to issue a final decision granting any

application for relief that is subject to the provisions of

§ 1003.47, because the record is not yet complete.” 

Background and Security Investigations in Proceedings

2013) (“It is well-established that the Agency’s position on our

jurisdiction is not entitled to deference under Chevron.” (alterations and

internal quotation marks omitted)), an agency’s implicit interpretation of

our jurisdictional statute is not entitled to controlling Chevron or Auer

deference. 
ABDISALAN V. HOLDER 15

Before Immigration Judges and the Board of Immigration

Appeals, 70 Fed. Reg. 4743, 4748 (Jan. 31, 2005).

The BIA has interpreted these regulations in a pair of

published, three-member decisions. First, in In re AlcantaraPerez, 23 I. & N. Dec. 882 (BIA 2006), the Board considered

how an IJ should proceed if background checks reveal that

the alien may be ineligible for a form of relief that has

already been provisionally granted. The BIA concluded that

because an order remanding the case for background checks

is “not a final decision,” new information that comes to light

on remand permits the IJ to “examine the case in a different

light,” including by holding new hearings. Id. at 884. The

BIA also explained that where the background checks fail to

turn up new evidence, “the Immigration Judge will enter an

order granting relief,” and “[t]hat order then becomes the

final administrative order in the case.” Id. at 885 (emphasis

added).

In In re M-D-, 24 I. & N. Dec. 138 (BIA 2007), the BIA

again considered the scope of the IJ’s jurisdiction on remand. 

The BIA explained that “when a case is remanded to an

Immigration Judge for the appropriate background checks

pursuant to 8 C.F.R. § 1003.47(h), the Immigration Judge

reacquires jurisdiction over the proceedings.” Id. at 141. On

remand, the IJ “may not reconsider the decision of the

Board,” but “if the background checks reveal new evidence

potentially affecting relief, the Immigration Judge must

consider such evidence before entering an order.” Id. 

Reiterating its position in Alcantara-Perez, the BIA remarked

that when it remands for background checks, “no final order

exists.” Id.
16 ABDISALAN V. HOLDER

These agency interpretations shed further light on what

the text of the statute already implies: in a case like

Abdisalan’s, there is only one final order of removal, and

when the BIA remands to the IJ, that order is not “final” until

administrative proceedings have concluded. Indeed, under

the BIA’s own precedential decisions, the BIA lacked

authority to issue “the final administrative order in

[Abdisalan’s] case” because it remanded the matter to the IJ

for background checks. In re Alcantara-Perez, 23 I. & N.

Dec. at 885. In such circumstances, the BIA has made clear

that “no final order exists.” In re M-D-, 24 I. & N. Dec. at

141.

In a related context, the Supreme Court has long

interpreted the term “final agency action” in the

Administrative Procedure Act to require that an agency’s

action “mark the ‘consummation’ of the agency’s

decisionmaking process.” Bennett v. Spear, 520 U.S. 154,

178 (1997) (quoting Chicago & S. Air Lines, Inc. v.

Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). In other

words, the action “must not be of a merely tentative or

interlocutory nature.” Bennett, 520 U.S. at 178; see also

Sackett v. EPA, 132 S. Ct. 1367, 1372 (2012) (holding that an

agency order was final in part because its conclusions “were

not subject to further agency review”). In the immigration

context, the agency’s adjudication of an alien’s claims can

hardly be considered fully consummated while background

checks or other remanded proceedings which have the

potential to affect the disposition are still in progress.

Finally, we note that considerations of judicial efficiency

also weigh in favor of reviewing a single final order of

removal. See, e.g., Nat’l Steel & Shipbuilding Co. v. Dir.,

Office of Workers’ Comp. Programs, 626 F.2d 106, 107–08
ABDISALAN V. HOLDER 17

(9th Cir. 1980) (holding that an agency order involving a

remand is not a reviewable “final order,” and reasoning that

this rule “furthers the same policies as the finality rule

embodied in 28 U.S.C. § 1291”); Dir., Office of Workers’

Comp. Programs v. Brodka, 643 F.2d 159, 161 (3d Cir. 1981)

(noting that declining to exercise jurisdiction over agency

remand orders “furthers the interests of administrative

economy and judicial efficiency embodied in the policy

against piecemeal appeals”). Nor is this rule likely to have an

unfair impact on petitioners. See INS v. Doherty, 502 U.S.

314, 323 (1992) (“[A]s a general matter, every delay works

to the advantage of the deportable alien who wishes merely

to remain in the United States.”).

C.

When the BIA remands to the IJ for any reason, no final

order of removal exists until all administrative proceedings

have concluded. Thus, when the BIA issues a mixed

decision, no aspect of the BIA’s decision is “final” for the

purpose of judicial review. By adopting this rule, we overrule

Li as well as Annachamy v. Holder, 733 F.3d 254 (9th Cir.

2013), to the extent that it relies on Li’s finality holding.

8

Today’s holding renders premature any pending petitions

for review that were filed in this court while background

checks or other remanded proceedings were ongoing. Here,

for instance, Abdisalan’s petition for review of the 2010 BIA

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. See, e.g., Pinto v.

Holder, 648 F.3d 976, 980 (9th Cir. 2011); Castrejon-Garcia v. INS,

60 F.3d 1359, 1361–62 (9th Cir. 1995).
18 ABDISALAN V. HOLDER

decision was filed before the conclusion of her agency

proceedings in 2011, and was thus premature at the time it

was filed. Abdisalan also filed a timely petition for review of

the 2011 IJ order, but there are surely other petitioners who

were not so prescient. In particular, there may be petitioners

who filed petitions for review that we now know to be

premature, but who assumed—in reasonable reliance on

Li—that they did not need to file a second petition after their

remanded proceedings were completed. It would be unjust to

punish these petitioners for our own doctrinal inconsistency.

Therefore, we hold that any pending petitions rendered

premature by today’s decision shall be treated as

automatically ripening into timely petitions upon the

completion of remanded proceedings, regardless of whether

those proceedings have already concluded. Under this rule,

Abdisalan’s premature 2010 petition ripened upon the

conclusion of her administrative proceedings in 2011, which

means we have jurisdiction over both of her petitions. We

take no position on the current circuit split regarding

treatment of premature petitions generally.

9 Our holding

extends only to petitioners whose petitions for review were

filed in this court before today’s date.

Finally, we note that if the BIA wishes to avoid formally

remanding cases to the IJ, it may avail itself of its regulatory

9 Compare Khan v. Att’y Gen. of the U.S., 691 F.3d 488, 493 (3d Cir.

2012) (holding that a premature petition for review automatically ripens

once the order of removal becomes final so long as the Government was

not prejudiced by the premature filing), and Herrera-Molina v. Holder,

597 F.3d 128, 132 (2d Cir. 2010) (same), with Moreira v. Mukasey,

509 F.3d 709, 713 (5th Cir. 2007) (holding that a premature petition does

not ripen when the order of removal becomes final), and Jaber v.

Gonzales, 486 F.3d 223, 228–30 (6th Cir. 2007) (same).
ABDISALAN V. HOLDER 19

authority to stay proceedings and refrain from issuing a

decision until background checks have been completed or

updated. See 8 C.F.R. § 1003.1(d)(6)(ii)(B); id.

§ 1003.1(d)(6)(iii). Adopting such an approach might prevent

further confusion in the courts of appeals that have yet to

decide this issue.

IV.

We therefore have jurisdiction over Abdisalan’s

consolidated petition for review, which challenges the

agency’s finding that her asylum claim was time-barred.

The Government concedes that because the IJ granted

Abdisalan withholding of removal on the basis of past

persecution, Abdisalan has necessarilymet the lesser standard

for a grant of asylum. Regardless of the merits of her asylum

claim, however, she must demonstrate “by clear and

convincing evidence that the application has been filed within

1 year after the date of [her] arrival in the United States.” 

8 U.S.C. § 1158(a)(2)(B). Although we typically lack

jurisdiction to review whether the applicant’s evidence was

“clear and convincing,” we may review the agency’s

interpretation of this legal standard. See id. § 1252(a)(2)(D)

(stating that we retain jurisdiction over “constitutional claims

or questions of law”).

Abdisalan testified that she arrived in the United States in

February 2002. She explained that after entering via Mexico

and staying in San Diego for a few days, she took a

Greyhound bus to Seattle, where she now lives. Abdisalan’s

relative Halimo Mohamed Nur testified that she saw

Abdisalan in the United States for the first time in February

2002. Although she could not recall the exact date, she
20 ABDISALAN V. HOLDER

testified that “I believe it was [February] 20 something.” No

person or document placed her timely filing in dispute. Even

if there was some discrepancy in the record as to whether

Abdisalan arrived in February or March of 2002, her

application would have been timely either way.

Despite this testimony, the IJ found that Abdisalan failed

to demonstrate by clear and convincing evidence that her

application was timely, reasoning that she had neither

documentary evidence nor convincing witness testimony to

corroborate her claim that she arrived in the United States

within one year of filing her asylum application. The BIA

affirmed for the same reasons.

In Singh v. Holder, 649 F.3d 1161, 1164–65 (9th Cir.

2011) (en banc), decided after Abdisalan filed her petitions

for review, we held that the REAL ID Act does not require an

asylum applicant to “corroborate credible testimony that he

complied with the one-year filing deadline,” id. at 1165. In

other words, the REAL ID Act did nothing to affect our longstanding rule that testimony regarding timely filing need not

be corroborated to be deemed “clear and convincing.” We

declined to consider, however, “whether Singh simply failed

to meet the standard here,” given that “testimony may be

credible without rising to the level of clear and convincing

evidence.” Id. at 1168–69. We further noted that “the BIA

has provided neither definition nor structure to the contours

of [the “clear and convincing”] standard with respect to the

one-year filing bar,” id. at 1168, and remanded to the BIA so

that it could elaborate on that standard, see id. at 1169. The

Government has informed us that no such elaboration

occurred, as Singh’s case was administratively closed, so no

precedential decision is forthcoming.
ABDISALAN V. HOLDER 21

Abdisalan’s petition once again raises the question

remanded in Singh—the standards for determining whether,

in light of our en banc opinion in Singh, a pre–REAL ID Act

asylum applicant’s credible and uncontradicted testimony

regarding her date of entry meets the statutory “clear and

convincing evidence” standard. We therefore remand to the

BIA so that it may address that question in the first instance.

GRANTED AND REMANDED.