(CN) - The case of a Somali refugee who sought asylum after enduring genital mutilation as a child prompted the full 9th Circuit to clarify Monday when Board of Immigration Appeals' decisions become final.
In addition to finding that Sama Abdisalan's petition is timely and merits review, the en banc appeals court remanded the case for determination of when an asylum applicant's "credible and uncontradicted testimony" about her date of entry into the United States meets the "clear and convincing evidence" standard?
Abdisalan, now 36, claimed in her 2002 application for asylum and withholding of removal that she endured female genital mutilation when she was just 3 or 4 years old, and was held captive and abused after witnessing the executions of her aunt and uncle during Somalia's civil war.
An immigration judge granted withholding of removal after a hearing in 2007, but denied her asylum claim after finding that she had filed it more than a year after her U.S. arrival. The Board of Immigration Appeals (BIA) affirmed and the decision purportedly became final when Abdisalan failed to seek review within 30 days.
Because the BIA granted withholding of removal at the same time that it denied asylum, however, the 9th Circuit that the "mixed" case required further study.
Abdisalan challenged the denial of asylum a second time after she passed the background checks, but the BIA again denied her petition, finding that she had failed to meet the 30-day deadline from the final ruling.
A divided three-judge panel of the 9th Circuit then found that it lacked jurisdiction to consider Abdisalan's appeal because the BIA's order had become final on Nov. 25, 2008, making the appeal nearly two years too late.
The appeals court later agreed to rehear the case before a full, 11-judge panel to address division among the circuits on just when such "mixed" BIA orders become final for purposes of jurisdiction.
In a unanimous, 21-page ruling Monday, the en banc court adopted what it called a "straightforward rule" on the issue.
"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 (a 'mixed' decision), the BIA decision is not a final order of removal with regard to any of the claims, and it does not trigger the 30-day window in which to file a petition for review," Judge Kim McLane Wardlaw wrote for the panel (parentheses in original).
"When the BIA remands to the IJ for any reason, no final order of removal exists until all administrative proceedings have concluded," Wardlaw added. "Thus, when the BIA issues a mixed decision, no aspect of the BIA's decision is 'final' for the purpose of judicial review."
For Abdisalan personally, the decision means that her "premature 2010 petition ripened upon the conclusion of her administrative proceedings in 2011."
Contrary to the three-judge appeals panel's ruling, this offers the 9th Circuit jurisdiction to consider her appeal, the court found.
For other petitioners, the decision "renders premature any pending petitions for review that were filed in this court while background checks or other remanded proceedings were ongoing," the ruling states.
To deal with this, the en banc court held 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," as long as the petitions for review were filed before Monday, Dec. 15, 2014.
The clarification does not put an end to Abdisalan's case, however.
After finding it did possess jurisdiction to consider her appeal, the 11-judge panel found that the immigration judge must consider evidence that she filed her application within one year of arriving in the United States.
Abdisalan claimed that she entered the country from Mexico in February 2002, stayed for a few days in San Diego, then took a bus to Seattle, her current home. A relative testified that she saw Abidisalan in the U.S. for the first time in February 2002.
The en banc panel noted that Abdisalan's petition raises the unresolved question as to the "standards for determining whether ... 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."
Hilary Han, one of Abdisalan's Seattle attorneys, told Courthouse News on Monday that the 9th Circuit's ruling provides much-needed clarity to "non-citizens as to when their deportation orders become final and thus ripe for appellate review."
"The decision will guide non-citizens and their attorneys to ensure that they obtain the review available to them under the immigration statute," Han said in an email. "In addition, because the court will not review agency decisions until the agency has reached all of the issues before it, the decision will have the effect of preserving judicial and administrative resources. At the same time, the court enunciated a rule that will not punish the many non-citizens who have already filed petitions for review in reliance on prior court precedent."
While such "mixed" decisions are fairly common in immigration courts, Han said, "it was not always clear [before Monday's ruling] if and when the court would take jurisdiction over a mixed decision."
"This had significant ramifications because, if a non-citizen failed to file a timely petition for review, that person could lose the right to seek judicial review," she said.
The Justice Department did not immediately respond to a request for comment.
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