Unreported / Non-Citable
Background
Russian citizen Denis Gorbunov sought asylum, statutory withholding of removal, and protection under the Convention Against Torture, alleging persecution for his political activity. An immigration judge granted asylum but did not adjudicate the withholding and CAT claims.
On DHS’s appeal, the Board of Immigration Appeals reversed the asylum grant, denied asylum and statutory withholding, and remanded for consideration of CAT protection, further proceedings, and a new decision. Gorbunov petitioned the Fifth Circuit before the immigration judge acted on remand. The immigration judge later denied CAT relief, and that ruling became final when the time for a BIA appeal expired.
The Court’s Holding
The Fifth Circuit dismissed the petition for lack of jurisdiction because the BIA’s decision was not a final order of removal when Gorbunov filed his petition. The court held that the BIA ordered a general, rather than limited, remand: its language authorized further proceedings and did not expressly confine the immigration judge to the CAT claim. Because a general remand permits the immigration judge to consider additional issues affecting removability, the removal question remained administratively open.
The court further held that the removal order’s later finality did not cure the premature petition. Under binding Fifth Circuit precedent, a petition filed before a final order of removal exists is a nullity. The merits panel was not bound by the motions panel’s earlier provisional denial of the government’s motion to dismiss and was obligated to determine jurisdiction independently.
Key Takeaways
- A BIA remand is general unless the BIA expressly limits it to a specific purpose.
- A general remand leaves removal administratively nonfinal, even when the BIA identifies CAT protection as a reason for the remand.
- In the Fifth Circuit, an order becoming final after a petition for review is filed does not cure the premature filing.
Why It Matters
The decision clarifies how the Supreme Court’s distinction between removal and withholding proceedings applies when the BIA remands a case. Pending withholding-only proceedings do not necessarily defeat finality, but an open-ended general remand does because the immigration judge may still revisit matters bearing on removal.
Immigration practitioners must examine the BIA’s decretal language closely and wait for administrative finality before petitioning for review. Filing early risks dismissal even if the agency proceedings conclude while the petition is pending.