Gopinath Swamynathan v. Eric Holder, Jr., No. 09-4030 (6th Cir. 2011)

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0779n.06 No. 09-4030 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED GOPINATH SWAMYNATHAN, Petitioner, v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL, Respondent. ) ) ) ) ) ) ) ) ) ) ) Nov 21, 2011 LEONARD GREEN, Clerk PETITION FOR REVIEW OF THE DECISION OF THE BOARD OF IMMIGRATION APPEALS OPINION BEFORE: WHITE and STRANCH, Circuit Judges; and COHN, District Judge.* PER CURIAM. This is an immigration case. Petitioner Gopinath Swamynathan ( Petitioner ) petitions for review of a decision of the Board of Immigration Appeals ( BIA ) which affirmed the denial of his application for relief from removal but remanded his case to the immigration judge ( IJ ) solely to reconsider the denial of his application for voluntary departure. Attorney General Eric H. Holder, Jr. ( Respondent ) moved to dismiss the petition for lack of jurisdiction, arguing that the BIA s order was not final due to the remand. A panel of this court denied Respondent s motion, and directed the parties to address the issue of jurisdiction in their briefs. * The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation. No. 09-4030 Swamynathan v. Holder During the pendency of this appeal, another panel of this court issued a published decision deciding the same jurisdictional issue presented in this appeal. In Giraldo v. Holder, 654 F.3d 609 (6th Cir. 2011), the panel, while concluding that it had jurisdiction to review the BIA s order, declined to exercise jurisdiction for prudential reasons. In light of Giraldo, the petition for review of the BIA s order denying withholding of removal is DISMISSED WITHOUT PREJUDICE. As explained in Giraldo, if Petitioner is granted voluntary departure, he may then decide whether to comply with the relevant departure provisions under 8 U.S.C. ยง 1229c(b), or file another petition for judicial review of his application for withholding of removal. 2