The petitioner, Qingyun Li, is a native and citizen of the
Republic of China who entered the United States illegally in August 1998. In
2007, the Department of Homeland Security issued her a Notice to Appear charging
her as an alien present in the United States without being admitted or paroled.
In 2009, an Immigration Judge found Ms. Li to be removable as charged, but
granted her the privilege of voluntary departure with an alternate order of
removal to China.
The Board of Immigration Appeals upheld the decision of
the Immigration Judge that Ms. Li was not entitled to stay in the U.S. and
dismissed her appeal. However, the Board found that Ms. Li was not properly
advised with the required information regarding her decision to accept
voluntary departure, and therefore the matter was remanded back to the
Immigration Judge. Ms. Li sought review of the Board’s dismissal of her
appeal by the Fourth Circuit.
The Government argued that the Court was without
appellate jurisdiction to hear Ms. Li’s appeal, contending that the Board’s
remand was not a final order and immediately appealable. The Fourth Circuit
noted that its prior holdings in Saldarriaga v. Gonzales, 402
F.3d 461 (4th Cir. 2005), and Perez-Vargas v. Gonzales, 478 F.3d 191 (4th
Cir. 2007) establish that a Board of Immigration Appeals decision denying
relief from removal, but remanding the case to an Immigration Judge to
determine an alien’s eligibility for voluntary departure is in fact a final
and appealable order.
However, the Fourth Circuit then set out the basis on
which it determined that it would be more prudent and in keeping with
Federal Regulations and Supreme Court precedent to refrain from considering
Ms. Li’s Petition. The Court referred back to the Supreme Court’s ruling in
Dada v. Mukasey, 554 U.S. 1 (2008), in which it stated that a voluntary
departure agreement between an alien and the government is akin to a civil
settlement agreement. Id. at 19. In accepting the voluntary departure
agreement the alien is agreeing to leave the country voluntarily but
receives certain benefits including the possibility of readmission.
The Court in Duda held that an alien can withdrawn from
such a voluntary agreement and request that his or her case be re-opened and
pursue appellate review, etc. In turn, if the alien makes the decision to
pursue judicial review, the voluntary departure is taken off the table; the
alien will have no possibility for readmission, and is essentially subject
to the alternate order of removal if the appeal is unsuccessful.
As such, the Court determined that if it asserted
jurisdiction and considered the merits of Ms. Li’s case prior to the matter
being remanded with regard to the voluntary departure, she would essentially
be entitled to pursuing judicial review with a fallback position of
accepting voluntary departure. This would not require Ms. Li to make the
decision to pursue legal recourse or accept the Government’s offer of a
voluntary departure agreement, and therefore was not in line with the
Supreme Court’s holding in Duda, or the applicable Federal Regulation
regarding the same, 8 C.F.R. § 1240.26(i).
In so holding the Fourth Circuit agreed with the
positions previously taken on this issue by the First Circuit, Hakim v. Holder, 611 F.3d 73, 79 (1st Cir. 2010); and Sixth Circuit, Giraldo v. Holder, 654 F.3d 609, 610, 616 (6th Cir. 2011). Therefore the Fourth Circuit
declined to assert its jurisdiction, but did so without prejudice to Ms.
Li’s right to seek judicial review in the future.
Top
