Sama Abdisalan v. Eric Holder, Jr.

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. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

ABDISALAN V. HOLDER 3

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…

Sama Abdiaziz Abdisalan, a native and citizen of Somalia, petitions for review of the Board of Immigration Appeals’ (BIA or Board) decision dismissing her asylum claim for lack of timeliness. In its original decision, the BIA determined that Abdisa-lan neither satisfied her burden that she applied for asylum within one yéar of arrival, nor established extraordinary circumstances sufficient to excuse untimely filing of her application. However, the BIA remanded the case to the IJ to complete updated background checks related to the IJ’s unchallenged grant of withholding of removal. Following successful completion of another round of background checks, Abdisalan filed a second appeal to *1124 the BIA seeking review of the denial of her asylum claim. The BIA dismissed that appeal as an untimely motion to reconsider, and again remanded the case for a third set of updated background checks because her clearance had once more expired.

Abdisalan has now filed two petitions for review before us: (1) from the BIA’s second decision denying the motion to reconsider, and (2) following the IJ’s confirmation of successful completion of the third set of background checks. Despite their…

dissenting:

I

Everyone appears to agree that petitioner Sama Abdisalan has a meritorious asylum claim. It would be hard to conclude otherwise, given what she has been through: enduring type-III female genital mutilation when she was three or four years old; witnessing the execution-style murder of her aunt and uncle by members of a rival clan at the outset of Somalia’s civil war when she was twelve or thirteen; and being held captive afterward by those same rival clan members for two or three weeks, an ordeal during which she was repeatedly raped and subjected to constant verbal and physical abuse.

Based on these facts, the immigration judge (IJ) granted Ms. Abdisalan withholding of removal, which means she necessarily established the well-founded fear of persecution required to qualify for asylum relief. See Khunaverdiants v. Muka-sey, 548 F.3d 760, 767 (9th Cir.2008). But the IJ and the Board of Immigration Appeals (BIA) denied Ms. Abdisalan’s asylum claim on the ground that her application was untimely. That ruling is unquestionably wrong; no one disputes that Ms. Ab-disalan arrived in the United States in either February or March of 2002, and under either scenario her March…