Abdisalan v. Holder, No. 10-73215 (9th Cir. 2013)
Annotate this CasePetitioner, a native and citizen of Somalia, petitioned for review of the BIA's decision dismissing her asylum claim for lack of timeliness. Petitioner filed petitions for review in this court following the denial of the motion to reconsider and the IJ's last background checks, but did not file a petition after the Board's initial decision denying her asylum application. The court held that petitioners must file their petitions for review within thirty days of the BIA's determination of their applicable claims for asylum, withholding of removal, and protection under the Convention Against Torture. In this instance, petitioner had a full and fair hearing of her claims and a reasonable opportunity to present evidence on her behalf; a final order of removal existed regarding the asylum claiming following the BIA's decision on November 25, 2008, triggering the thirty-day rule; and the court lacked jurisdiction to review the Board's denial of asylum because petitioner failed to timely petition for review. Accordingly, the court dismissed the petitions for review.
Court Description: Immigration. The panel dismissed as untimely two petitions seeking review of the Board of Immigration Appeals’ decision denying an application for asylum. The Board denied petitioner’s asylum application because she failed to file it within one year of arrival or establish extraordinary circumstances to excuse the untimely filing. Because the Board had also granted withholding of removal, it remanded to the IJ for the completion of background checks, and following completion of those checks, petitioner filed a second appeal with the Board challenging the underlying denial of asylum. The Board dismissed the second appeal, construing it as an untimely motion to reconsider, and again remanded to the IJ for updated background checks. Petitioner filed petitions for review in this court following the denial of the motion to reconsider and * The Honorable Michael W. Fitzgerald, United States District Judge for the Central District of California, sitting by designation. the IJ’s last background checks, but did not file a petition after the Board’s initial decision denying her asylum application. The panel held that it lacked jurisdiction to review the Board’s underlying denial of asylum, the only issue raised in both petitions for review, because petitioner failed to file a timely petition for review of that decision. Dissenting, Judge Watford wrote that the Board’s initial decision denying asylum was not a final order, because proceedings were still ongoing before the IJ, and that the IJ’s decision granting withholding of removal following completion of the last round of background checks was the final order that triggered the running of the clock to determine timeliness of the petition for review. Judge Watford would hold that petitioner’s petitions for review were timely.
The court issued a subsequent related opinion or order on May 7, 2014.
The court issued a subsequent related opinion or order on December 15, 2014.
The court issued a subsequent related opinion or order on January 6, 2015.
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