Holguin-Mendoza v. Lynch, No. 16-60294 (5th Cir. 2016)

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Respondent seeks dismissal of petitioner's petition for lack of jurisdiction, arguing that the decision of the BIA is not a final reviewable order. Alternatively, respondent argues that the petition should be dismissed for prudential reasons. The court found cases from its sister circuits persuasive and concluded that a BIA decision which resolves the merits of an appeal but remands for further proceedings as to voluntary departure is a final order of removal for purposes of judicial review. The court also concluded that the question of whether petitioner has a colorable due process claim is sufficient to allow her petition for review to go forward. Accordingly, the court denied respondent's opposed motion to dismiss the petition for lack of jurisdiction.

The court issued a subsequent related opinion or order on September 27, 2017.

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________ No. 16-60294 ___________________ United States Court of Appeals Fifth Circuit FILED August 25, 2016 Lyle W. Cayce Clerk MAYRA AIDE HOLGUIN-MENDOZA, also known as Mayra Ayde HolguinMendoza, Petitioner v. LORETTA LYNCH, U. S. ATTORNEY GENERAL, Respondent _______________________ Petition for Review of an Order of the Board of Immigration Appeals _______________________ Before DENNIS, HAYNES, and GRAVES, Circuit Judges. PER CURIAM: The respondent asks us to dismiss the petition of Mayra HolguinMendoza for lack of jurisdiction. Specifically, the respondent asserts that the decision of the Board of Immigration Appeals (BIA) is not a final reviewable order, and, alternatively, that the petition should be dismissed for prudential reasons. We disagree. This court has not yet decided the issue of the finality of a BIA decision which resolves the merits of an appeal but remands for further proceedings only as to voluntary departure. However, as the respondent acknowledges, several other circuits have concluded that such a decision is a final order of removal for purposes of judicial review. See Batubara v. Holder, 733 F.3d 1040, 1041-42 (10th Cir. 2013); Almutairi v. Holder, 722 F.3d 996 (7th Cir. 2013); Rodas-Leon v. Att’y Gen. of the U.S., 475 F. App’x 430, 431 (3d Cir. 2012); Li v. Holder, 666 F.3d 147, 148-49 (4th Cir. 2011); Giraldo v. Holder, 654 F.3d 609, 614 (6th Cir. 2011); Pinto v. Holder, 648 F.3d 976, 986 (9th Cir. 2011); Alibasic v. Mukasey, 547 F.3d 78, 82-84 (2d Cir. 2008). Further, in Hakim v. Holder, the First Circuit assumed that such a decision was a final order of removal, but declined jurisdiction for prudential reasons. Hakim, 611 F.3d 73, 78-79 (1st Cir. 2010). We find these cases to be persuasive authority and likewise conclude that a BIA decision which resolves the merits of an appeal but remands for further proceedings as to voluntary departure is a final order of removal for purposes of judicial review. We further conclude that the question of whether Hoguin-Mendoza has a colorable due process claim is sufficient to allow her petition for review to go forward. IT IS ORDERED that respondent’s opposed motion to dismiss the petition for review for lack of jurisdiction is DENIED.

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