Qingyun Li v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

QINGYUN LI, 

Petitioner,

v.

 No. 10-2333

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals.

Argued: October 27, 2011

Decided: December 2, 2011

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Petition dismissed without prejudice by published opinion.

Judge Agee wrote the opinion, in which Judge Wilkinson and

Judge Shedd joined.

COUNSEL

ARGUED: Yueh-Mei Wu Rowan, ROWAN & ASSO-

CIATES, P.C., Fairfax, Virginia, for Petitioner. Daniel Eric

Goldman, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. ON BRIEF: Tony West,

Assistant Attorney General, Civil Division, William C.

2 LI v. HOLDER

Peachey, Assistant Director, Office of Immigration Litigation,

UNITED STATES DEPARTMENT OF JUSTICE, Washing-

ton, D.C., for Respondent.

OPINION

AGEE, Circuit Judge:

I.

Qingyun Li, the petitioner in this case, seeks review of an

order of the Board of Immigration Appeals ("BIA") remand-

ing her case to the Immigration Judge ("IJ"). The government

urges us to dismiss for lack of jurisdiction. As discussed

below, we conclude that this court has jurisdiction over the

petition, but nonetheless decline to exercise that jurisdiction

for prudential reasons. Accordingly, we dismiss the petition

without prejudice to Li’s right to seek review at a later time.

II.

Li, a native and citizen of the Republic of China, illegally

entered the United States in August 1998. She subsequently

applied for adjustment of status based on an approved I-140

visa petition filed by her employer. After proceedings not rel-

evant to this appeal, the Department of Homeland Security

("DHS") denied her application, and on July 27, 2007, the

DHS served her with a Notice to Appear. The Notice charged

Li with removability as an alien present in the United States

without being admitted or paroled. Before the IJ, Li conceded

that she was removable as charged and renewed her applica-

tion for adjustment of status. On April 27, 2009, the IJ found

Li removable as charged, denied her application for adjust-

ment of status, and granted her the privilege of voluntary

departure with an alternate order of removal to China.

LI v. HOLDER 3

On October 28, 2010, the BIA upheld the denial of Li’s

application for adjustment of status and dismissed her appeal

from the IJ’s decision.1 Finding that the IJ failed to provide Li

"with the required advisals," however, the BIA remanded "for

the Immigration Judge to grant a new period of voluntary

departure and to provide the required advisals." (J.A. 24.) The

BIA’s opinion concluded by stating that the "record is

remanded for further proceedings consistent with the forego-

ing opinion and for the entry of a new decision." (J.A. 24.) Li

filed a timely petition for review with this Court.

The government contends that this Court lacks jurisdiction

over Li’s petition, an argument that we squarely reject based

on prior precedent that is binding on our panel and undis-

turbed by any intervening Supreme Court decision. However,

following the approach employed by the First and Sixth Cir-

cuits in similar circumstances, we nonetheless dismiss the

petition without prejudice for prudential reasons.

III.

A.

This Court reviews legal questions, such as the existence of

its own jurisdiction, de novo. Kporlor v. Holder, 597 F.3d

222, 225 (4th Cir. 2010). In this case, the government asks us

1

The reasoning of the IJ and the BIA with regard to Li’s adjustment

application was as follows: Li’s otherwise valid I-140 petition was auto-

matically revoked when the petitioning employer went out of business,

based on 8 C.F.R. § 205.1(a)(3)(iii)(D). Because she had no valid I-140

petition, she was not eligible to adjust status. Because that finding dis-

posed of her adjustment application, the BIA did not address the IJ’s con-

clusion that Li was not permitted to change employers under the

portability provision in section 204(j) of the Act, 8 U.S.C. § 1154(j). Thus,

the analysis of Li’s claim for adjustment of status turns on the interplay,

if any, of the automatic revocation regulation and the portability statute.

Because we decline to exercise jurisdiction at this time, we express no

opinion on the merits of Li’s petition.

4 LI v. HOLDER

to hold that we lack jurisdiction over a BIA order remanding

for a grant of voluntary departure because it is not a final

order of removal. Two prior decisions of this Court, however,

have held that BIA orders substantially identical to the instant

one are final and immediately appealable.

First, in Saldarriaga v. Gonzales, 402 F.3d 461 (4th Cir.

2005), the government argued that there was no final order of

removal under 8 U.S.C. § 1252(c)(1) where the BIA ordered

removal, but remanded to the IJ to allow the petitioner an

opportunity to apply for voluntary departure. Id. at 465 n.2.

The Court rejected this argument and found the order immedi-

ately appealable, citing to decisions of the Eleventh, Ninth

and Sixth Circuits with "persuasive" reasoning on the issue.

Id.; see also Del Pilar v. United States Attorney General, 326

F.3d 1154, 1156-57 (11th Cir. 2003) (an order of removal was

a final appealable order, despite the fact that the BIA was

remanding to the Immigration Judge for the limited purpose

of permitting Del Pilar to designate a country of removal);

Castrejon-Garcia v. INS, 60 F.3d 1359, 1361-62 (9th Cir.

1995) (BIA order reversing an IJ’s grant of suspension of

deportation and remanding the case "for a determination of

voluntary departure in lieu of deportation" was a final order

of deportation); Perkovic v. INS, 33 F.3d 615, 618-19 (6th

Cir. 1994) (BIA order reversing an IJ’s grant of asylum and

remanding the case was a final order of deportation).

Similarly, in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th

Cir. 2007), the Court relied on Saldarriaga in holding that a

BIA order denying relief from removal but remanding the

case to the IJ to determine an alien’s eligibility for voluntary

departure is a final order of removal conferring jurisdiction.

Id. at 194 n.4.

This Court’s prior decisions in Saldarriaga and Perez-

Vargas are binding on this panel. United States v. Collins, 415

F.3d 304, 311 (4th Cir. 2005) ("[a] decision of a panel of this

court becomes the law of the circuit and is binding on other

LI v. HOLDER 5

panels"). Those decisions plainly address the jurisdictional

issue here, and compel the conclusion that we have jurisdic-

tion over Li’s petition.

The government, however, urges this Court to reconsider

its holdings in Saldarriaga and Perez-Vargas in light of "in-

tervening legal developments," specifically, the Supreme

Court’s decision in Dada v. Mukasey, 554 U.S. 1 (2008) and

the promulgation of 8 C.F.R. § 1240.26.2 A prior panel’s deci-

sion may be overruled by "a superseding contrary decision of

the Supreme Court." Collins, 415 F.3d at 311 (citing

Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th

Cir. 1993)). In Etheridge, this Court determined that a subse-

quent Supreme Court decision "specifically rejected the rea-

soning on which [the prior decision] was based" and thus, the

prior decision was "no longer controlling." 9 F.3d at 1090-91.

The question here, then, is whether Dada specifically

rejected the reasoning on which the prior panel decisions were

based which, in turn, were based on the out-of-circuit author-

ity. Although the rationale of Dada, as well as the new regula-

tion, may impact this case’s ultimate disposition, Dada did

not "specifically reject[ ] the reasoning," see Etheridge, 9 F.3d

at 1090-91, on which Saldarriaga and Perez-Valdez were

based, either expressly or implicitly.

In Dada, the Supreme Court discussed the nature of a vol-

untary departure arrangement between an alien and the gov-

ernment, describing it as "an agreed-upon exchange of

benefits, much like a settlement agreement. In return for

anticipated benefits, including the possibility of readmission,

2

This regulation took effect January 20, 2009, see 8 C.F.R. § 1240.26,

and applies to departure orders issued on or after the effective date. Dada,

554 U.S. at 20. The government argues that it applies to Li’s case and we

agree. The IJ’s initial voluntary departure order was issued on April 27,

2009, after the effective date of the regulation, and any order issued on

remand (if considered the operative order) would also be after the effec-

tive date.

6 LI v. HOLDER

an alien who requests voluntary departure represents that he

or she ‘has the means to depart the United States and intends

to do so’ promptly." Id. at 19 (citing 8 U.S.C. § 1229c(b)(1)).

The alien in Dada made a voluntary departure arrangement,

and then two days before the expiration of the departure

period, sought to withdraw his request for voluntary departure

and filed a motion to re-open removal proceedings based on

"new and material evidence." 554 U.S. at 6-7. The BIA

denied the motion to reopen on the ground that petitioner had

overstayed his voluntary departure period. Relying on 8

U.S.C. § 1229c(d), the BIA concluded that an alien who fails

to voluntarily depart in a timely fashion "is statutorily barred

from applying for and receiving certain forms of discretionary

relief, including adjustment of status." Id. at 7. It did not rule

on petitioner’s motion to withdraw the voluntary departure

request.

The Supreme Court disagreed with the BIA’s conclusion.

Instead, the Court held that the proper way to protect both the

agreed-upon exchange of benefits that voluntary departure

constitutes and the alien’s statutory right to file a motion to

reopen is to allow an alien to withdraw the request for volun-

tary departure before expiration of the departure period. Pur-

suant to this approach, an alien may agree to voluntary

departure, but unilaterally withdraw the request before expira-

tion of the departure period and pursue instead a motion to

reopen. Id. at 20-21. If the alien pursues such a motion, he

"gives up the possibility of readmission and becomes subject

to the IJ’s alternate order of removal." Id. at 21. The Court

also noted that this is the approach taken in the regulation

relied upon by the government in the instant case, 8 C.F.R.

1240.26. See id. at 20.

The new regulation, moreover, requires as a condition to

being granted voluntary departure prior to completion of

removal proceedings, that the petitioner "waive[ ] appeal of

all issues." 8 C.F.R. § 1240.26(b)(1)(i)(D). The regulation

LI v. HOLDER 7

also dictates that the filing of a petition for review "or any

other judicial challenge to the administratively final order"

results in the automatic termination of the grant of voluntary

departure and that "the alternate order of removal . . . shall

immediately take effect." 8 C.F.R. § 1240.26(i). As noted, the

regulation is applicable to Li. See supra at n. 2.

In determining whether Dada effectively overruled Saldar-

riaga and Perez-Vargas, it is of course significant that Dada

did not address the jurisdictional issue here. Indeed, Dada

was not tasked with deciding any jurisdictional question, and

thus clearly did not explicitly overrule the jurisdictional hold-

ings of Saldarriaga and Perez-Valdez. Nor did Dada reject

the reasoning for the jurisdictional holdings of those cases.

The assertion of jurisdiction in this Court’s prior precedent

(and the three out-of-circuit cases on which this Court relied)

is based on the fact that a final order of removal (or its func-

tional equivalent, such as the denial of adjustment at stake

here) is an appealable order, even if the details of a voluntary

departure remain to be worked out. The government is correct

that Dada holds an alien can be forced to choose (at least

within the voluntary departure period) between voluntary

departure and the right to file for administrative relief, but

Dada does not address—let alone reject—the reasoning of our

prior cases so as to render them non-binding on us.

B.

Having concluded that we have jurisdiction, we now turn

to the government’s alternative argument, in which it urges us

to follow the approach of the First and Sixth Circuits in simi-

lar circumstances. Specifically, in post-Dada decisions, those

courts determined that the exercise of jurisdiction would be

inconsistent with the scheme envisioned by Dada and the new

regulation and thus declined to exercise jurisdiction for "pru-

dential reasons." Hakim v. Holder, 611 F.3d 73, 79 (1st Cir.

2010); Giraldo v. Holder, 654 F.3d 609, 610, 616 (6th Cir.

2011).

8 LI v. HOLDER

In Hakim, the First Circuit held that judicial review of a

BIA decision following remand to the IJ for voluntary depar-

ture consideration would be premature and for "prudential

reasons" declined to exercise jurisdiction. 611 F.3d at 79. The

BIA decision at issue in Hakim reversed the IJ’s grant of

Hakim’s application for asylum and withholding of removal

and remanded to the IJ to determine whether Hakim qualified

for voluntary departure consideration.

In electing not to assert jurisdiction, the Hakim court inter-

preted the new regulations as "assum[ing] a chronological

order, i.e., that the grant of voluntary departure precedes the

filing of a petition for judicial review." Id. (emphasis in origi-

nal). Thus, to allow juridical review to occur while an alien’s

request for voluntary departure remained pending before the

IJ would permit the alien to circumvent the intent of the regu-

lation and the rationale of Dada, whereby an alien may seek

voluntary departure or post-order relief, but not both. Judicial

review would also deprive the government of the benefit it

received in agreeing to voluntary departure – "a prompt and

costless departure." Id. (citing Dada, 554 U.S. at [19-20]).

More recently, our colleagues in the Sixth Circuit adopted

the same approach in Giraldo, 654 F.3d 609. In that case, the

alien and her minor daughter petitioned for review of a BIA

order which had vacated the IJ’s order granting withholding

of removal and remanded to allow petitioner to apply for vol-

untary departure. Id. at 610. After concluding that it had juris-

diction to review the BIA’s order, the Sixth Circuit agreed

with the Hakim court’s conclusion that it was "more prudent

to decline to exercise jurisdiction at this time." Id. at 616, 618.

As it noted, "[i]f Petitioners are granted voluntary departure,

they ‘can at that point decide whether to comply with the rele-

vant departure provisions, 8 U.S.C. § 1129c(b), or else to file

a petition for judicial review’ of their application for with-

holding of removal." Id. (citing Hakim, 611 F.3d at 79).

LI v. HOLDER 9

We recognize, as did the Hakim and Giraldo Courts, that

Dada and the new voluntary departure regulation modify the

landscape governing voluntary departures. An alien is now

permitted to withdraw from a voluntary departure agreement

to pursue a motion to reopen. If the alien makes the "hard

choice" to do so, however, the benefits of voluntary departure

will no longer be available. Dada, 554 U.S. at 21. Thus, an

alien is now required to choose between those two alterna-

tives, i.e., pursuing a motion to reopen (or a judicial chal-

lenge), or voluntarily departing. The new regulation,

additionally, specifically compels an alien to choose between

voluntary departure and seeking judicial review. 8 C.F.R.

§ 1240.26(b)(i)(D) (allowing grant of voluntary departure

prior to completion of removal proceedings only if the alien

"[w]aives appeal of all issues"); 8 C.F.R. § 1240.26(i) ("any

grant of voluntary departure shall terminate automatically

upon the filing of [a petition for review] or other judicial chal-

lenge").3

An order in this case dismissing Li’s petition without preju-

dice would be consistent with the regulation and Dada,

because after remand to the IJ (assuming no factual circum-

stances have changed that would allow Li to avoid removabil-

ity), a voluntary departure date would be set. At that point, Li

would be faced with the same choice that all aliens with the

option of voluntary departure (and subject to the new regula-

tion) face. See 8 C.F.R. § 1240.26(i) (setting forth the avail-

able options, among which Li will have to choose).

If we were to review Li’s petition at this juncture, however,

she would be spared having to make that "hard choice." See

3

As described at oral argument, the regulation also allows a third option

in cases where an IJ enters a voluntary departure order, which is to file a

petition for judicial review of the BIA’s decision, but then leave the coun-

try within 30 days. If an alien elects this option (and complies with certain

other notification requirements), she will not be deemed to have departed

under an order of removal. See 8 C.F.R. § 1240.26(i).

10 LI v. HOLDER

Dada, 554 U.S. at 21. Instead, she would be permitted to both

challenge the removal order (before the BIA and this Court)

and, in the event that she loses on that issue, to go back to the

IJ for a voluntary departure order and receive the benefit of

that arrangement. Thus Li would be placed in a more favor-

able situation than other aliens similarly situated. It is this

result that is inconsistent with both Dada and the new regula-

tion. Thus, we agree with the approach followed by the First

and Sixth Circuits, and prudentially decline to exercise our

jurisdiction over Li’s petition.

Li argues that we should instead follow the Ninth Circuit’s

decision in Pinto v. Holder, 648 F.3d 976 (9th Cir. 2011),

which concluded it had jurisdiction over the petition for

review of a similar BIA order and chose to exercise that juris-

diction. We decline to follow Pinto for the reasons set forth

above, but also because it is materially distinguishable on its

facts. Significantly, 8 C.F.R. § 1240.26 did not apply in Pinto

because the alien filed his petition for review three years prior

to the regulation’s effective date. Id. at 985; see also id. at 983

("the new regulation is not directly applicable to Pinto’s peti-

tion because it was not in force when Pinto petitioned for

review"). Indeed, the Pinto court itself recognized this as a

critical distinction between the case before it and Hakim. Id.

at 985. Unlike the petitioner in Pinto, however, Li’s petition

for review was filed after the regulation’s effective date, and

both the prior order from the IJ granting voluntary departure,

and any subsequent order, are subject to the new regulation.

See supra at note 2.

The Pinto court also noted that, regardless of the effective

date, the regulation by its terms did not apply to Pinto’s situa-

tion because it "addresses only those cases in which an alien

files a petition for review after that alien has been granted

voluntary departure." Id. at 984 (emphasis in original). Pinto

had filed a petition for review before any voluntary departure

order had ever been entered.

LI v. HOLDER 11

By contrast, Li was granted voluntary departure and then

filed a petition for review, the order of events anticipated by

the regulation. It is solely because the "required advisals"

were not properly given that her case is being remanded for

a new voluntary departure order. Notably, the Pinto court

rejected the Hakim court’s approach in part because of this:

[t]he regulation plainly does not require immigrants

to forgo a petition for review before they have been

granted voluntary departure, so we decline to follow

the First Circuit and effectively force immigrants to

choose between judicial review and the hope of vol-

untary departure. Dada similarly refused to make

immigrants choose between accepting voluntary

departure and the possibility of a motion to reopen.

Pinto, 648 F.3d at 985.

In this case, unlike in Pinto and alleviating the Pinto

Court’s concern, it is not the "hope of voluntary departure"

that Li will be choosing after remand, cf. id., but voluntary

departure. The IJ has already determined she is eligible, and

it is only because the IJ did not properly warn her of the con-

sequences of such a choice pursuant to the new regulation that

a new voluntary departure order would be set on remand.

Indeed, the government acknowledged at oral argument that

it was "assured" that Li would be offered voluntary departure

when she appeared again before the IJ, based on both the

BIA’s decision and this Court leaving that decision undis-

turbed. (Tr. of October 27, 2011 Oral Arg. at 21:57-22:32.)

Thus, this case also differs from Pinto in that there the peti-

tioner had only "the hope of voluntary departure," while Li is

entitled to it.

For all of these reasons, we prudentially decline to exercise

jurisdiction over Li’s petition at this time.4 We deny it without

4

We recognize that the general rule is that federal courts have an "obli-

gation . . . to exercise the jurisdiction given them." Colo. River Water

12 LI v. HOLDER

prejudice, however, to Li’s later ability to file for review of

the issues raised in the BIA’s order should that be her choice

after receiving the new voluntary departure date.5

IV.

For the foregoing reasons, we dismiss the petition without

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). However,

various prudential doctrines allow courts to decline to exercise jurisdiction

in limited circumstances (the abstention doctrines, ripeness, etc.). As the

First and Sixth Circuits have recognized in similar situations, we believe

that the unusual facts presented, combined with the deference we owe to

the goals of the regulatory process, have created circumstances that are

analogous to those justifying abstention in other cases.

5

The Pinto Court was concerned about whether judicial review would

be available later to Pinto if the court declined to exercise jurisdiction.

Indeed, it criticized the Hakim Court on this ground:

[I]n [declining jurisdiction], the [Hakim] court ignored the 30-day

deadline for petitioning for review of final orders, which in our

circuit can begin well before the grant of voluntary departure.

The First Circuit did not explain how it could assert jurisdiction

over Hakim’s petition for review on the merits if he was denied

voluntary departure (or decided not to accept voluntary departure

if it were granted) and sought to renew juridical review.

648 F.3d at 985.

At oral argument in this case, however, the government disagreed that

Li would be later barred from challenging before this Court the merits

issue she raises in this appeal, i.e., that the IJ’s decision denying her

adjustment of status was erroneous. Counsel for the government offered

a procedural mechanism that would allow Li to later seek such judicial

review of the adjustment decision (i.e., the portability decision). Specifi-

cally, counsel explained that the BIA could reissue its decision to restart

the 30-day period for filing a petition for review. Such a reissue would be

appropriate because, although Li has timely and properly raised the issue

before this Court, we have declined to address it purely for prudential rea-

sons and without prejudice. Of course, as counsel for the government

noted during argument, Li’s circumstances prior to her new hearing before

the IJ might well change, and result in a new application for relief from

removal, which could potentially moot the issue she raises in this appeal.

LI v. HOLDER 13

prejudice.

PETITION DISMISSED WITHOUT PREJUDICE