Full 9th Circuit to Assess When Orders Are Final

(CN) - A Somali refugee who endured genital mutilation as a child and now seeks U.S. asylum will face an en banc rehearing, the 9th Circuit said.

A victim of female genital mutilation when she was just 3 or 4 years old, Sama Abdisalan also witnessed the executions of her aunt and uncle during Somalia's civil war, and the murderers held her captive and abused her for weeks.

She applied for asylum and withholding of removal to Somalia in 2002. An immigration judge granted withholding of removal after a hearing in 2007, but denied her asylum claim because Abdisalan filed it more than a year after her U.S. arrival.

The Board of Immigration Appeals (BIA) affirmed and the decision became final when Abdisalan failed to seek review within 30 days.

Because Abdisalan was granted withholding of removal, however, the case was remanded to the immigration judge for a background check. After Abdisalan passed the background check, she challenged the denial of asylum for the second time. The BIA denied her petition, finding that she had failed to meet the 30-day deadline from the final ruling.

In September 2013, a divided three-judge panel of the 9th Circuit found that it lacked jurisdiction because the BIA's order had become final on Nov. 25, 2008, making Abdisalan's appeal nearly two years too late.

Writing in dissent to the panel ruling, Judge Paul Watford said Abdisalan likely thought that the pending background checks had stayed the deadline for review.

"Ms. Abdisalan had no reason to believe in November 2008 that she could petition our court for review of the BIA's order," Watford wrote. "The agency had taken the position - as it continues to do today - that orders in which it remands for completion of background checks are not final orders because administrative proceedings remain ongoing."

Citing an intracircuit split on just when a BIA order becomes final, Abdisalan, along with the American Immigration Lawyers Association, called for en banc review of issue. The 9th Circuit granted the petition in a brief order on Thursday and scheduled a hearing in Seattle for the week of June 16.

Clarification of the issue is sorely needed, said Deborah Smith, director of the University of Idaho College of Law's Immigration Clinic.

"As things stand, case law interpreting the finality of a board order denying one immigration benefit and remanding for consideration of another exists in disarray," Smith wrote in an amicus brief for the American Immigration Lawyers Association.

"A clear and consistently applied resolution of the issue of when an order of removal from the Board is final for judicial review is vitally important to the immigration bar, and to the people we represent who seek to challenge in federal court a BIA denial of an immigration benefit in removal proceedings," Smith added. "Such a resolution would benefit not only the petitioner and counsel, it ultimately would benefit the judiciary."

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