Sama Abdisalan v. Eric Holder, Jr.

When does an order of removal become “final” for the purpose of seeking judicial review? Panels of our court have reached varying conclusions, creating unnecessary confusion as to the timeliness of petitions for review and our jurisdiction to entertain them. We reheard this matter en banc to clarify the issue of finality of the Board of Immigration Appeals’ (“BIA”) decisions. Today, we adopt a straightforward rule: when the Board of Immigration Appeals issues a decision that denies some claims but remands any other claims for relief to an Immigration Judge (“IJ”) 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 thirty-day window in which to file a petition for review.

As a result, we have jurisdiction to consider petitioner’s asylum claim, but we remand to the BIA in light of Singh v. Holder, 649 F.3d 1161 (9th Cir.2011) (en banc).

I.

Sama Abdiaziz Abdisalan is a 36-year-old native and citizen of Somalia. Abdisa-lan asserts that she entered the United States in February 2002. On March 25, 2002, Abdisalan filed an application for asylum, withholding of removal,…