No.

19-442

IN THE
Supreme Court of the United States
________________

OTTO ANAEL PEREZ CASTILLO,

Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________

REPLY IN SUPPORT OF
PETITION FOR A WRIT OF CERTIORARI
________________

Robert M. Loeb
Counsel of Record
Thomas M. Bondy
Anne W. Savin
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street NW
Washington, DC 20005
(202) 339-8400
[email protected]
Counsel for Petitioner
 i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

ARGUMENT ............................................................. 1

I. This Court Should Intervene To Resolve

Widespread Confusion Over Whether
BIA Remand Orders Are Final Orders
For Purposes of Judicial Review. ................... 2

II. The Government Does Not Dispute

That The Court Of Appeals Erred. ................ 9

CONCLUSION ........................................................ 13
 ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alibasic v. Mukasey,
547 F.3d 78 (2d Cir. 2008) .....................................3

Almutairi v. Holder,
722 F.3d 996 (7th Cir. 2013)........................4, 8, 13

Aparicio-Brito v. Lynch,
824 F.3d 674 (7th Cir. 2016)................................11

Arias-Minaya v. Holder,
779 F.3d 49 (1st Cir. 2015) ..................................11

Barrera-Lima v. Sessions,
901 F.3d 1108 (9th Cir. 2018)..............................11

Batubara v. Holder,
733 F.3d 1040 (10th Cir. 2013)..............................4

Cabrera Avalos v. Barr,

No. 16-70512, 2020 WL 415888 (9th
Cir. Jan. 27, 2020)..........................................10, 13

Camick v. Sessions,
891 F.3d 1101 (8th Cir. 2018)..............................13

Cano-Saldarriaga v. Holder,
729 F.3d 25 (1st Cir. 2013) ....................................6

Chupina v. Holder,
570 F.3d 99 (2d Cir. 2009) .................................7, 8
 iii

Dada v. Mukasey,
554 U.S. 1 (2008) ..............................................9, 11

Diaz-Mejia v. Holder,
564 F. App’x 730 (4th Cir. 2014) .......................3, 5

In re E-L-H-,
23 I. & N. Dec. 814 (BIA 2005) ............................12

Faustov v. Att’y Gen.,

538 F. App’x 166 (3d Cir. 2013) .............................3

Foti v. INS,
375 U.S. 217 (1963) ..............................................11

Giraldo v. Holder,
654 F.3d 609 (6th Cir. 2011)..................................4

Hakim v. Holder,
611 F.3d 73 (1st Cir. 2010) ....................................3

Hih v. Lynch,
812 F.3d 551 (6th Cir. 2016)..................................4

Holguin-Mendoza v. Lynch,
835 F.3d 508 (5th Cir. 2016)..................................4

Hounmenou v. Holder,
691 F.3d 967 (8th Cir. 2012)..............................3, 4

Lazo v. Gonzales,
462 F.3d 53 (2d Cir. 2006) .....................................8

Matter of M-A-S-,
24 I. & N. Dec. 762 (BIA 2009) ..............................6
 iv

Mancillas Silva v. Barr,

787 F. App’x 937 (9th Cir. 2019) ...................10, 13

Qingyun Li v. Holder,
666 F.3d 147 (4th Cir. 2011)............................4, 12

Reyes-Vasquez v. Barr,
792 F. App’x 506 (9th Cir. 2020) .........................10

Rizo v. Lynch,
810 F.3d 688 (9th Cir. 2016)..................................4

Tongco-Andrade v. Holder,
596 F. App’x 585 (9th Cir. 2015) ...........................7

Xia Lin v. Sessions,

698 F. App’x 4 (2d Cir. 2017) .............................3, 5

Statutes

8 U.S.C. § 1101(a)(47) .........................................1, 2, 8

8 U.S.C. § 1229b ..........................................................7

8 U.S.C. § 1229b(1)(B) .................................................7

8 U.S.C. § 1229c(b)(1)(B) .............................................7

8 U.S.C. § 1229c(b)(1)(C) .............................................7

8 U.S.C. § 1252(a)........................................................1

Other Authorities

Order, Diaz-Mejia v. Holder,

No. 12-2198, Doc. 15
(4th Cir. Jan. 2, 2013) ...........................................4
 v

U.S. Dep’t of Justice, Exec. Office for

Immigration Review, Immigration
Court Process in the United States
(2005), 2005 WL 3541974 ......................................8
 ARGUMENT

This case presents the question whether a Board

of Immigration Appeals (BIA) order denying certain
forms of relief but remanding to an Immigration
Judge (IJ) for further proceedings qualifies, under
8 U.S.C. § 1101(a)(47), as a “final order of removal” el-
igible for judicial review. See 8 U.S.C. § 1252(a). That
critical question confounds the courts of appeals, re-
sulting in a stark division of authority and confusion
among the immigration bar and noncitizens.

Tellingly, the government concurs that the Ninth

Circuit rule is wrong. Indeed, it acknowledges “that
an alien should be permitted to obtain review of a
Board decision affirming his removability and deny-
ing protection from removal once all proceedings be-
fore the agency are complete.” BIO 5. A “bright-line
rule … would provide consistency across all types of
proceedings and help avoid confusion over when an
alien must petition for review.” BIO 20.

The government also readily acknowledges that

regarding BIA remands more generally there is a cir-
cuit conflict, where “several courts of appeals have
adopted the government’s position.” BIO 5. And it
does not deny the need for this Court’s intervention to
resolve that conflict. Yet, the government opposes re-
view because this case involves a voluntary-departure
remand to which the circuits have a purportedly uni-
form approach. Even though the government thinks
that approach is wrong, it says the Court need not
step in.
 2

The government’s argument does not support de-

nial of review. First, in the context of BIA voluntary-
departure remands, the courts of appeals are far from
uniform. Second, there is no sound basis to distin-
guish among subsets of BIA remand orders. Finally,
this case is an ideal vehicle to resolve the broader cir-
cuit split regarding BIA remands. Taking a case out-
side of the voluntary-departure remand context would
leave the question of when to seek review of such re-
mands ambiguous and the courts divided. Conversely,
a ruling announced in this case would resolve the is-
sue for all BIA remands.

This Court should grant the petition and adopt a

clear, consistent reading of § 1101(a)(47)—BIA re-
mand orders are not final orders subject to judicial re-
view.

I. This Court Should Intervene To Resolve

Widespread Confusion Over Whether BIA
Remand Orders Are Final Orders For
Purposes of Judicial Review.

The government attempts to divert attention from

the wide circuit split over whether BIA remand orders
are final orders subject to review by artificially nar-
rowing the aperture to include only remands for vol-
untary departure. But even a narrow focus on
voluntary-departure remands does not produce the
uniformity the government claims. Moreover, the gov-
ernment offers no good reason to treat voluntary-de-
parture remands as distinct from any other remand.
 3

A. The government erroneously asserts that the

courts have adopted a uniform approach to BIA vol-
untary-departure remands. BIO 5-6, 14-20; see
Hounmenou v. Holder, 691 F.3d 967, 970 n.1 (8th Cir.
2012) (“Other courts have addressed this issue, reach-
ing various results.”). In fact, the circuit courts’ ap-
proaches to whether a BIA voluntary-departure
remand order is a final order of removal are all over
the map:

Circuit Following a BIA voluntary-depar-

ture remand order, a petition for re-
view must be filed within 30 days
of:
First Unclear. Hakim v. Holder, 611 F.3d 73,
79 (1st Cir. 2010) (declining, “for pru-
dential reasons,” to exercise jurisdiction
of petition filed after remand order).
Second Either BIA remand order or conclusion
of remanded proceedings. Xia Lin v. Ses-
sions, 698 F. App’x 4, 5 (2d Cir. 2017);
Alibasic v. Mukasey, 547 F.3d 78, 83-84
(2d Cir. 2008).
Third BIA remand order. Faustov v. Attorney
General, 538 F. App’x 166, 168 n.2 (3d
Cir. 2013) (“This remand does not affect
our jurisdiction”).
Fourth Conclusion of remanded proceedings.
Diaz-Mejia v. Holder, 564 F. App’x 730,
730 n.1 (4th Cir. 2014).
 4

Fifth BIA remand order. Holguin-Mendoza v.

Lynch, 835 F.3d 508, 509 (5th Cir. 2016).
Sixth Both BIA remand order and completion
of remanded proceedings. Hih v. Lynch,
812 F.3d 551, 555-56 (6th Cir. 2016); Gi-
raldo v. Holder, 654 F.3d 609, 618 (6th
Cir. 2011).
Seventh BIA remand order. Almutairi v. Holder,
722 F.3d 996, 1002 (7th Cir. 2013).
Eighth Unclear. Hounmenou, 691 F. 3d at 970
n.1 (“We have yet to address whether
the BIA's remand for voluntary depar-
ture considerations renders its removal
order non-final and deprives our court of
jurisdiction”).
Ninth BIA remand order. Rizo v. Lynch, 810
F.3d 688, 691 (9th Cir. 2016).
Tenth BIA remand order. Batubara v. Holder,
733 F.3d 1040, 1042 (10th Cir. 2013).

In claiming uniformity, the government fails in

particular to account for the divergent approaches of
the Second, Fourth, and Sixth Circuits. Rather than
“conflict[] with published Fourth Circuit precedent,
e.g., Qingyun Li [v. Holder, 666 F.3d 147 (4th Cir.
2011)],” (BIO 17) the Fourth Circuit in Diaz-Mejia
cited Li and distinguished it on the ground that, in
Diaz-Mejia, the BIA had remanded for “consideration
of voluntary departure and any other relief for which
[the petitioner] may be eligible.” Order, Diaz-Mejia v.
Holder, No. 12-2198, Doc. 15 (4th Cir. Jan. 2, 2013).
 5

Where, as here, the BIA expressly left open the possi-

bility of further proceedings on remand, the Fourth
Circuit explained that the voluntary-departure re-
mand was not a final order for purposes of judicial re-
view. Diaz-Mejia, 564 F. App’x at 730 & n.1.

Likewise, the Second Circuit’s decision in Xia Lin

v. Sessions is not “inconsistent with its published de-
cision in” Alibasic. BIO 18. As the Fourth Circuit did
with Li and Diaz-Mejia, the Second Circuit reconciled
its decisions in Xia Lin and Alibasic. Xia Lin v. Ses-
sions, 698 F. App’x 4, 5 (2d Cir. 2017) (explaining Ali-
basic “did not hold that an alien is required to petition
for review” from a BIA remand order). Finally, the
government argues that none of the Fourth or Sixth
Circuit decisions declining for prudential reasons to
exercise jurisdiction “requires the court of appeals to
defer exercising jurisdiction.” BIO 16. But, tellingly,
those courts have not exercised jurisdiction over such
a petition since deciding Hakim, Li, and Giraldo.

Thus, even with the government’s myopic focus on

voluntary-departure remands, rather than the
broader range of BIA remands, the conflict among the
courts of appeals warrants this Court’s intervention.

B. Returning to the question presented, the state

of the law regarding when to seek judicial review of
BIA remands more generally is nonsensical and con-
fusing. The BIA regularly denies certain forms of re-
lief but remands the case to the IJ for further
proceedings. Today, whether such an order is final for
purposes of judicial review depends on the circuit in
which the petition is filed and the particular reason
for the remand.
 6

The government readily acknowledges the broad,

entrenched circuit split regarding BIA remands more
generally. BIO 5; see Pet. 2, 15-16 (describing the 3-2
circuit conflict). The government does not deny that
this split warrants this Court’s review. The govern-
ment also acknowledges the need for a uniform rule:
It has consistently argued for a simple, across-the-
board finality rule—BIA orders remanding for further
proceedings, regardless of purpose, are not final or-
ders. BIO 4, 5. Indeed, it argued for that rule below.
See Doc. 75 at 9-13.

The government suggests, however, that remands

for voluntary departure are “distinct” from remands
for other purposes, such that courts should take a dif-
ferent approach to the finality of these remand orders.
See BIO 5-6. That position cannot, however, with-
stand scrutiny.

1. As the petition explained (Pet. 7) and as the

government acknowledges (BIO 11-12), where the
BIA states a specific purpose for the remand, it is “ef-
fective for all purposes,” meaning the noncitizen is
free to present new evidence and raise new grounds
for relief.

The government contends that noncitizens rarely

seek to raise new matters on remand. BIO 12. But
how often noncitizens take advantage of the broad
scope of a remand order is immaterial. The point is
the BIA’s order returning the case to the IJ for further
proceedings generally leaves open the possibility of
new claims and new evidence. See, e.g., Cano-Saldar-
riaga v. Holder, 729 F.3d 25, 27 n.2 (1st Cir. 2013);
Matter of M-A-S-, 24 I. & N. Dec. 762, 764 (BIA 2009).
 7

As a result, there is no telling when the BIA remands

the case what course the proceedings will follow.
There is, thus, no sound reason to treat one remand
order as final and another as non-final based on the
BIA’s stated purpose.

2. Further illustrating the folly in assessing a re-

mand order’s finality based on its purpose, the IJ’s
tasks on remand are often the same regardless of pur-
pose.

When deciding whether to grant voluntary depar-

ture, for example, an IJ must determine whether the
noncitizen is barred from that relief by a conviction
for an aggravated felony. 8 U.S.C. § 1229c(b)(1)(C).
The same is true for a remand where the IJ is consid-
ering cancellation of removal. 8 U.S.C. § 1229b. Like-
wise, on remand for consideration of voluntary
departure, an IJ must determine whether the individ-
ual has been “a person of good moral character for [the
last] 5 years,” 8 U.S.C. § 1229c(b)(1)(B). In the context
of a remand relating to cancellation of removal, the IJ
similarly must assess whether the petitioner is a “per-
son of good moral character.” Id. § 1229b(1)(B).

Despite the analytical similarity, some courts

deem a voluntary-departure remand order final,
while no court would consider a remand to evaluate
cancellation or withholding of removal a “final order
of removal.” 1 And if the same task arises in the con-
text of a remand for completion of background checks

1 See, e.g., Chupina v. Holder, 570 F.3d 99, 103 (2d Cir.

2009); Tongco-Andrade v. Holder, 596 F. App’x 585, 586 (9th Cir.

2015).
 8

to confirm his or her eligibility for relief, the courts

are sharply split there as well. See Pet. 15-16.

3. The government’s argument that voluntary de-

parture-related remands are different because they
do not affect removability is without merit. As the
government concedes, on remand, the noncitizen can
present new evidence and raise new claims for relief.
No remand is truly limited to issues relating to eligi-
bility for voluntary departure.

In any event, in most removal proceedings remov-

ability is uncontested. Typically, the noncitizen con-
cedes removability at the outset and seeks relief from
removal. See U.S. Dep’t of Justice, Exec. Office for Im-
migration Review, Immigration Court Process in the
United States (2005), 2005 WL 3541974. If granted,
that relief—whether asylum, withholding of removal,
CAT relief, or voluntary departure—does not alter the
noncitizen’s removability. Each of those forms of relief
presupposes that the noncitizen is removable. 2

Thus, the government relies on a meaningless dis-

tinction. When the BIA remands further proceed-
ings—whether to consider voluntary departure,
withholding of removal, or for some other form of re-
lief from removal—the relevant question under
§ 1101(a)(47) is whether the BIA has affirmed the IJ’s

2 Chupina, 570 F.3d at 104-05; see Almutairi, 722 F.3d at

1001 (“[T]he ‘final’ order might do no more than establish that

the alien is removable; it need not … order immediate re-
moval.”); Lazo v. Gonzales, 462 F.3d 53, 55 (2d Cir. 2006) (simi-
lar).
 9

order of removal. See Pet. 7. And the government can-

not dispute that a remand to reconsider eligibility for
voluntary departure no more affirms that order than
does a remand for background checks related to with-
holding of removal or CAT relief. Here, the BIA va-
cated the IJ’s order denying Petitioner voluntary
departure and remanded for renewed consideration of
his eligibility, offering him critical relief from coercive
removal and its legal consequences. Dada v. Mukasey,
554 U.S. 1, 11-12 (2008).

4. While recognizing that this Court’s interven-

tion is needed to resolve the broader conflict regard-
ing BIA remands, the government argues against
taking a case in this context. But this case is an ideal
vehicle to remedy the broader circuit split regarding
BIA remands. Taking a case outside the voluntary-
departure remand context would leave the question of
when to seek review of such remands ambiguous. A
ruling announced in this case would, in contrast,
cover all BIA remands. The Court could adopt the gov-
ernment’s preferred reading of the statute and,
thereby, establish an across-the-board rule that no
BIA remand orders are final orders for purposes of ju-
dicial review. Thus, contrary to the government’s ar-
guments, that this case arises in the voluntary-
departure context strongly favors granting review.

II. The Government Does Not Dispute That The

Court Of Appeals Erred.

Not once does the government say the decision be-

low was correct in holding that the remand was an
immediately appealable order. That is no accident.
The government has consistently argued in the courts
 10

of appeals that BIA remands in all contexts—includ-

ing voluntary departure—are not final orders of re-
moval. The government so argued in this very case,
contending that the Ninth Circuit’s decisions treating
such remand orders as final orders of removal are
“[i]ncorrectly [d]ecided.” Doc. 75 at 13. Indeed, even
as the petition for certiorari in this case has been
pending, the Ninth Circuit—with its purportedly
“clear” (BIO 4), “easily followed” (BIO 5), and
“straightforward” (BIO 20) rule requiring aliens to pe-
tition from the BIA remand order—rejected the gov-
ernment’s own, renewed argument that a remand for
voluntary departure deprives the court of appeals of
jurisdiction over a petition for review. See Reyes-
Vasquez v. Barr, 792 F. App’x 506, 506 (9th Cir. 2020)
(“[T]he government argues that we lack jurisdiction
because the BIA remanded the case for further con-
sideration. But because the BIA remanded only to ad-
dress issues regarding voluntary departure, this court
has jurisdiction.”). Likewise, noncitizens continue to
misunderstand the Ninth Circuit’s supposedly “clear”
rule, thereby losing the opportunity for review.
Cabrera Avalos v. Barr, No. 16-70512, 2020 WL
415888, *2 (9th Cir. Jan. 27, 2020); Mancillas Silva v.
Barr, 787 F. App’x 937, 938 (9th Cir. 2019).

A. The government suggests (BIO 11) treating

voluntary-departure remands as final orders of re-
moval will not lead to piecemeal review because the
remand order is effectively the only order the court
can review. The government argued below that this
same reasoning rests on a “faulty legal premise.” Doc.
75 at 11.
 11

There, the government correctly observed that be-

cause the IJ is empowered to “address new matters on
remand beyond voluntary departure,” “remanded pro-
ceedings do have the potential to affect the claims
raised on the petition for review, and may either de-
feat those claims entirely … or give rise to additional
claims of error.” Id. And, as this Court has recognized,
“[b]ifurcation of judicial review of [removal] proceed-
ings is not only inconvenient; it is clearly undesirable”
and should be avoided unless it is “the necessary re-
sult from a fair interpretation of the pertinent statu-
tory language.” Foti v. INS, 375 U.S. 217, 232 (1963).

Accordingly, the government is wrong when it

says (BIO 14) that the BIA’s remand order “repre-
sents the dispositive final agency decision on remova-
bility and protection from removal,” and equally
wrong that the prospect of review following the pro-
ceedings on remand “does not subject the alien to
more than one order concerning removability and pro-
tection from removal,” BIO 11-12. First, as explained
above, BIA remand orders for other purposes are no
less the final agency decision on removability. See pp.
8-9, supra. Second, voluntary departure is an im-
portant form of protection from removal. Dada, 554
U.S. at 11-12. Third, while the discretionary decision
whether to grant voluntary departure is itself unre-
viewable, courts regularly review issues arising from
the agency’s voluntary departure determination. See,
e.g., Barrera-Lima v. Sessions, 901 F.3d 1108, 1114-
15 (9th Cir. 2018); Aparicio-Brito v. Lynch, 824 F.3d
674, 687 (7th Cir. 2016); Arias-Minaya v. Holder, 779
F.3d 49, 53-54 (1st Cir. 2015).
 12

B. The government suggests review is unwar-

ranted because the agency could change its practices
regarding the scope of remand orders. BIO 12-13. But
the BIA has properly recognized that “a [BIA] decision
remanding a case to an [IJ] for further consideration
of an issue is not a final decision.” In re
E-L-H-, 23 I. & N. Dec. 814, 821-22 (BIA 2005). Even
if the BIA were empowered to remand a case to the IJ
while at the same time entering a final order of re-
moval, the agency should not have to deviate from its
chosen approach to remands based on faulty and in-
consistent appellate rulings.

The government further contends that the quid

pro quo of voluntary departure is preserved regard-
less of whether courts adhere to the sequencing on
which the voluntary departure regulations are prem-
ised, BIO 18-19. But the government has successfully
argued the opposite. In Li, for example, the govern-
ment convinced the Fourth Circuit to dismiss the pe-
tition because jurisdiction would be “inconsistent
with the scheme envisioned by Dada and the [volun-
tary-departure] regulation.” Li, 666 F.3d at 151.

The upshot of this confusion is that not even ex-

perienced immigration attorneys—let alone pro se
noncitizens—can easily determine whether the courts
will treat a BIA remand order as the final order of re-
moval for purposes of review. The answer to that
question currently depends on the circuit in which the
petition is filed, the purpose of the remand, and even
the language of the BIA’s order. And contrary to the
government’s assertion that there has been no “mate-
rial change in the legal landscape” since the Court
last considered this issue (BIO 14), that landscape has
 13

both deteriorated and stagnated in key ways. The Sec-

ond Circuit embraced the broadest rule of finality in
Xia Lin, while the Seventh and Ninth Circuits contin-
ued down their narrow path. Cabrera Avalos, 2020
WL 415888 at *2 (dismissing petition after remanded
proceedings as untimely); Camick v. Sessions, 891
F.3d 1101, 1106-07 (8th Cir. 2018) (noting voluntary
departure “has no effect at all” a removal order’s fi-
nality) (quoting Almutairi, 722 F.3d at 1001). And the
enduring confusion over when to petition for review
means noncitizens continue unwittingly to forfeit
their right to judicial review. Cabrera Avalos, 2020
WL 415888 at *2; Mancillas Silva, 787 F. App’x at
938. This Court’s review is necessary to provide a con-
sistent answer to this important question.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Robert M. Loeb
Counsel of Record
Thomas M. Bondy
Anne W. Savin
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street NW
Washington, DC 20005
(202) 339-8400
[email protected]

March 10, 2020