finding that a BIA order reversing an IJ’s grant of asylum and remanding the case was a final order of deportation under § 1105a(a) and noting that it was not “aware of [any] authority for the proposition that a [BIA] order rejecting an asylum application is not a final order unless a formal order of deportation has already been issued”
How later courts described this case
- finding that a BIA order reversing an IJ’s grant of asylum and remanding the case was a final order of deportation under § 1105a(a) and noting that it was not “aware of [any] authority for the proposition that a [BIA] order rejecting an asylum application is not a final order unless a formal order of deportation has already been issued”
- holding that a BIA order reversing an IJ’s grant of asylum and remanding the case was a “final order of deportation” and noting that it was not “aware of [any] authority for the proposition that a [BIA] order rejecting an asylum application is not a final order unless a formal order of deportation has already been issued”
- finding that claims had been REVIEW OF IMMIGRATION JUDGE’S OPINION exhausted because “they were presented to the immigration judge and then to the [BIA], which definitively resolved the Ramani also argues that the court should not review the claims on their merits”
- holding that an applicant’s own testimony may be sufficient in itself to establish asylum eligibility if it is “believable, consistent, and suffi ciently detailed to provide a plausible and coherent account of the basis for his fear.”
Written by the judges who cited it.
The opinion
KENNEDY, Circuit Judge,
dissenting.
I respectfully dissent because I believe this Court is without jurisdiction to entertain this appeal. As the majority recognizes, two requirements must be satisfied before this Court has jurisdiction over deportation proceedings. First, the petitioners’ appeal must be from a final order of deportation. 8 U.S.C. § 1105a(a). Second, the petitioners must exhaust administrative remedies. 8 U.S.C. § 1105a(c).
The majority asserts the existence of two final orders of deportation. It first concludes that the Board’s decision reversing the ALJ’s grant of asylum is a final order of deportation because it became final as of the date of the Board’s decision. The majority also holds that the ALJ’s order of deportation is final because the time for appeal to the Board has expired. With respect to the Board’s decision, although it may be final in the sense that it was dispositive of the issue of whether petitioners are entitled to asylum, it clearly is not an order of deportation. Thus, the ALJ’s deportation order is the only final order of deportation over which this Court could have jurisdiction.
The ALJ’s order of deportation is not properly before us, however, because petitioners have failed to exhaust administrative remedies. Exhaustion requires petitioners to appeal the order of deportation to the Board before seeking judicial review. This petitioners failed to do and,. consequently, this Court lacks jurisdiction to hear their appeal. Although the ALJ’s order became final when the time for appeal lapsed, the exhaustion requirement cannot be satisfied by failing to appeal within the time permitted. See Luna-Benalcazar v. INS, 414 F.2d 254, 255 (6th Cir.1969); Siaba-Fernandez v. Rosenberg, 302 F.2d 139, 141 (9th Cir.1962) (“Congress must be held to have been aware that the theory of exhaustion of administrative remedies by not pursuing them is without support in precedent or in reasoning.”). The exhaustion requirement is statutorily mandated and cannot be bypassed where petitioners seek judicial review, not of the statutory scheme or practice of the Board, but of the Board’s conclusions in petitioners’ individual case. “It is well settled that when Congress has established a particular review mechanism, courts are not free to fashion alternatives to the specified scheme.” MeNary v. Haitian Refugee Center, Inc., 498 *624 U.S. 479, 502 , 111 S.Ct. 888, 901 , 112 L.Ed.2d 1005 (1991) (Rehnquist, C.J., dissenting).
The eases relied on by the majority are not to the contrary. In Youssefinia v. INS, 784 F.2d 1254 (5th Cir.1986), the petitioners did not appeal the order of deportation to the Board. They did move the ALJ to reopen the proceedings to apply for asylum. The motion to reopen was granted but asylum was denied. Petitioners appealed the denial of asylum to the Board, which also denied asylum. The Fifth Circuit held that while it had jurisdiction to review the denial of asylum, it could not review the unappealed order of deportation and the issues that could have been raised thereunder. The appeal was limited to the denial of asylum. As to this order, there was both exhaustion and a final order of the Board. In Giova v. Rosenberg, 379 U.S. 18 , 85 S.Ct. 156 , 13 L.Ed.2d 90 (1964), the Court had held that denial of a motion to reopen is reviewable as a “final order of deportation.” In Youssefinia, the Fifth Circuit held it had no jurisdiction to review the deportation order, which was not appealed.
In Juarez v. INS, 732 F.2d 58 (6th Cir. 1984), and Luna-Benalcazar, 414 F.2d at 254 , petitioners’ appeal to this Court was from a denial of a motion to reopen deportation proceedings. The original orders of deportation had not been appealed to the Board. However, the orders denying the motion to reopen had been administratively exhausted by appeal to the Board.
In Perez-Rodriguez v. INS, 3 F.3d 1074 (7th Cir.1993), the petitioner had failed to raise one issue in his appeal to the Board, thus not exhausting that issue. The Seventh Circuit held that it lacked jurisdiction to consider it.
While an order of the Board denying asylum can be a final order where it is entered after an order of deportation, I do not agree that a decision denying asylum is a final order where deportation has not yet been ordered. Nor that it somehow becomes a final order when a party failed to appeal the ALJ’s order of deportation.
I also disagree that the BIA’s determination that petitioners have not proved a well-founded fear of persecution is not supported by substantial evidence. The BIA considered the discrimination against Albanians by the Yugoslav government and the police detentions of petitioners, especially the treatment of Vaso. 1 As the BIA also noted, however, throughout the period Vaso claimed to be persecuted, he travelled freely within Yugoslavia and abroad. He continued his studies at the university at government expense and obtained employment in the summer following his detentions. He travelled to Italy without difficulty and returned voluntarily. He acknowledged that had he remained in Yugoslavia, he would have completed his studies and pursued a career. Petitioners also received passports that enabled them to return to Yugoslavia within three years and were permitted to leave by a government-operated airline. Finally, despite Mr. Ca-maj’s speculation, petitioners presented no evidence that the Yugoslav government knew of or cared about their activities in the United States. It is not that petitioners failed to present sufficient evidence of persecution. The question before us is whether the BIA had substantial evidence to support its conclusion that petitioners’ fear of persecution was not well-founded. See INS v. Elias- Zacarias, 502 U.S. 478 ,-n. 1, 112 S.Ct. 812 , 815 n. 1, 117 L.Ed.2d 38 (1992). While I might have found petitioners’ fear well-founded, I do not believe that the evidence in the record compels a finding contrary to that of the BIA’s, and, therefore, I would uphold its conclusion. Id. at-, 112 S.Ct. at 817 .
. The asylum claim of petitioner Djela is dependent on that of Vaso. Her fear of persecution is based on her fear that the Yugoslav government will punish her for helping her brother. Her eligibility of asylum requires at a minimum that her brother's fear of persecution is well-founded.