08-0867-ag (L), 08-3394-ag (CON)
Arias Chupina v. Holder



                                    UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT
                                                 August Term 2008

          Argued: May 18, 2009                                             Decided: June 25, 2009

                                   Docket Nos. 08-0867-ag (L), 08-3394-ag (CON)




_____________________________________________________________________________


JOSE ENRIQUE ARIAS CHUPINA,

                                        Petitioner,

                    - v.-

ERIC H. HOLDER JR., United States Attorney General,

                                        Respondent.*

_____________________________________________________________________________

Before: MINER, KATZMANN, and RAGGI, Circuit Judges.

       By a decision dated January 24, 2008, the Board of Immigration Appeals (the “BIA”)
upheld the immigration judge’s denial of petitioner’s application for asylum as untimely filed and
remanded to the immigration judge for further consideration of petitioner’s applications for
withholding of removal and protection under the CAT. By a decision dated June 13, 2008, the
BIA denied reconsideration of its decision regarding asylum. Petitioner seeks review of both
decisions.

          Petitions dismissed.

                                                       ANNE PILSBURY (Heather Yvonne Axford, on the
                                                       brief), Central American Legal Assistance,
                                                       Brooklyn, NY, for petitioner.

                                                       GREGORY M. KELCH (Gregory G. Katsas, Assistant
                                                       Attorney General, and James E. Grimes, Senior
                                                       Litigation Counsel, on the brief), United States

          *
         Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H.
Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as the
respondent in this case.

                                                         1
                                             Department of Justice, Civil Division, Office of
                                             Immigration Litigation, Washington, DC, for
                                             respondent.

PER CURIAM :

       Petitioner Jose Enrique Arias-Chupina (“Chupina”) petitions for review of decisions

entered by the Board of Immigration Appeals (the “BIA”) on January 24, 2008, and June 13,

2008.1 The BIA’s January 24, 2008 decision upheld the immigration judge’s denial of Chupina’s

asylum application as untimely filed and remanded the case to the immigration judge for further

consideration of Chupina’s eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3)

and for protection under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, S. Treaty Doc. No.

100-20, 1465 U.N.T.S. 85. See 8 C.F.R. § 1208.16(c) (implementing the CAT). The BIA’s June

13, 2008 decision denied reconsideration of its decision regarding asylum. In his petitions,

Chupina argues that the BIA’s decisions upholding the denial of his asylum application were in

error. Chupina’s applications for withholding of removal and protection under the CAT remain

pending with the immigration judge. For the reasons that follow, the petitions are dismissed

because there is no final order of removal over which we may assert jurisdiction in this case.

I.     BACKGROUND

       Chupina, a native and citizen of Guatemala, was admitted to the United States on or about

June 28, 2000, as a non-immigrant visitor for business with authorization to remain for a

temporary period to end not later than July 27, 2000. On August 22, 2001, more than a year after

his authorization to remain in the United States had expired, Chupina filed applications with the

former Immigration and Naturalization Service, now the Department of Homeland Security

(“DHS”), for asylum, withholding of removal, and protection under the CAT.

       On December 18, 2002, Chupina was served with a Notice to Appear (the “NTA”), which


       1
         We hereby formally consolidate the petitions filed under docket numbers 08-0867-ag
and 08-3394-ag, designating 08-0867-ag as the lead petition. See 8 U.S.C. § 1252(b)(6).

                                                 2
charged him with removability under 8 U.S.C. § 1227(a)(1)(B) as an alien who remained in the

United States for a time longer than permitted. In a hearing before an immigration judge on

March 13, 2005, Chupina, through counsel, admitted to the factual allegations in the NTA and

conceded removability, relying entirely on his applications for asylum, withholding of removal,

and protection under the CAT to prevent his removal to Guatemala.

       In support of his applications for CAT protection and relief from removal, Chupina

testified that he fled Guatemala because he feared persecution from the G-2, Guatemala’s

military intelligence agency, which had recruited him as an informant and had issued a

membership card to him. He also testified that he attempted to apply for asylum, withholding of
removal, and protection under the CAT at an earlier date, in April 2001, but that he did not file

his applications until August 2001 pursuant to the advice of a non-attorney who delayed their

submission.

       In a written decision entered on September 14, 2005, the immigration judge denied

Chupina’s applications for asylum, withholding of removal, and protection under the CAT. The

immigration judge found, inter alia, that (1) Chupina’s asylum application was untimely because

it was filed more than one year after his arrival in the United States; (2) Chupina did not qualify

for any of the exceptions to the one-year deadline for filing an asylum application; (3) even if

Chupina’s asylum application were timely filed, he was ineligible for asylum because he was

subject to the persecutor bar for having persecuted others as a member of the G-2; and (4)

moreover, the persecutor bar rendered Chupina ineligible for withholding of removal under 8

U.S.C. § 1231(b)(3) and under the CAT.

       Chupina appealed the immigration judge’s decision to the BIA. On January 24, 2008, the

BIA sustained in part and dismissed in part Chupina’s appeal. The BIA agreed with the

immigration judge that Chupina’s asylum application was untimely and that no exceptions to the

filing deadline applied. Specifically, the BIA rejected Chupina’s claim that the advice given to

him by his non-attorney representative constituted ineffective assistance of counsel and therefore


                                                 3
that “exceptional circumstances” excused him from the untimely filing. The BIA stated that

Chupina could not raise an ineffective assistance of counsel claim because he had failed to satisfy

the pertinent aspects of the procedural prerequisites for bringing such a claim under Matter of

Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), which require:

       (1) an affidavit setting forth in detail the agreement with former counsel
       concerning what action would be taken and what counsel did or did not represent
       in this regard; (2) proof that the petitioner notified former counsel of the
       allegations of ineffective assistance and allowed counsel an opportunity to
       respond; and (3) if a violation of ethical or legal responsibilities is claimed, a
       statement as to whether the petitioner filed a complaint with any disciplinary
       authority regarding counsel’s conduct and, if a complaint was not filed, an
       explanation for not doing so.
Yi Long Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007) (quoting Twum v. INS, 411 F.3d

54, 59 (2d Cir. 2005) (alterations omitted). The BIA also noted that, because Chupina failed to

satisfy the applicable Lozada requirements, “[t]he record . . . does not contain sufficient evidence

to establish that the late filing of [Chupina’s] asylum application was due to actions or inaction of

his [non-attorney] representative rather than to failures on his own part.”

       With respect to Chupina’s applications for withholding of removal and protection under

the CAT, however, the BIA concluded that the immigration judge erred in applying the

persecutor bar to Chupina. The BIA observed that Chupina was not “truly inducted into the [G-

2] organization,” that he “never received any training or pay,” and that he “tried not to fulfill

[his] role [as an informant for the G-2].” Accordingly, in regard to Chupina’s applications for

CAT protection and withholding of removal, the BIA remanded the case to the immigration

judge “to allow the parties to supplement and update the record and to allow the Immigration

Judge to make a new determination as to whether [Chupina] is eligible for withholding of

removal . . . [and protection under the CAT].”

       On February 25, 2008, Chupina petitioned for review of the BIA’s decision upholding the

immigration judge’s denial of his asylum application. At around the same time, Chupina also

filed a motion to reconsider with the BIA, arguing that it erroneously found that his claim of

ineffective assistance of counsel by a non-attorney did not constitute exceptional circumstances

                                                  4
excusing the untimely filing of his asylum application. Specifically, Chupina argued that the BIA

erred by applying the Lozada requirements, which apply to claims of ineffective assistance of

counsel, to his claims of ineffective assistance by a non-attorney.

       In a decision dated June 13, 2008, the BIA denied Chupina’s motion to reconsider,

affirming its earlier ruling that Chupina failed to provide sufficient evidence to support his

ineffective assistance claim. The BIA noted that requiring Chupina to comply with the

applicable Lozada requirements for raising an ineffective assistance of counsel claim where his

representative was a non-attorney did not impose an “undue burden” on Chupina. The BIA also

noted that, aside from Chupina’s failure to satisfy the Lozada requirements, he also failed to
allege sufficient facts to establish that his claim of ineffective assistance of counsel constituted

“exceptional circumstances” to excuse the untimely filing of his asylum application. On July 11,

2008, Chupina petitioned for review of the BIA’s decision denying his motion to reconsider.

       In his petitions for review, Chupina argues that the BIA erred in concluding that, because

of his failure to fulfill the Lozada requirements, Chupina could not establish exceptional

circumstances based on his claim of ineffective assistance such as would excuse his failure to

comply with the one-year filing deadline for asylum applications. In this connection, Chupina

purports to raise questions of law and constitutional claims, namely, that the BIA violated his due

process rights and committed legal error when it required that the Lozada submissions be

satisfied for his claim of ineffective assistance by a “non-attorney.” The government moves to

dismiss the petition for lack of jurisdiction. It principally argues that there does not yet exist a

“final” order of removal — a necessary predicate for this Court’s jurisdiction to review orders of

removal — because Chupina’s applications for withholding of removal and protection under the

CAT remain pending before the immigration judge.2


       2
           The government alternatively argues that 8 U.S.C. § 1158(a)(3) deprives this Court of
jurisdiction to review the agency’s determination that Chupina’s asylum application was
untimely. We need not, however, resolve that challenge because we base our dismissal on lack
of a final order of removal.

                                                   5
II.    ANALYSIS

       This Court’s jurisdiction to review orders of removal is limited to review of “final

order[s] of removal.” See 8 U.S.C. § 1252(a)(1); see also, e.g., Alibasic v. Mukasey, 547 F.3d

78, 82 (2d Cir. 2008) (“This Court has jurisdiction to review only petitions for review of final

orders of removal.” (internal quotation marks and alteration omitted)); Shi Liang Lin v. U.S.

Dep’t of Justice, 494 F.3d 296, 315 (2d Cir. 2007) (en banc) (dismissing petition for lack of

jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) because the court of appeals can “review only final

orders of removal”). An order of removal is “final” upon the earlier of the BIA’s affirmance of

the immigration judge’s order of removal or the expiration of the time to appeal the immigration
judge’s order of removal to the BIA. 8 U.S.C. § 1101(a)(47)(B)(i), (ii).

       Here, the BIA affirmed the immigration judge’s denial of Chupina’s asylum application

but remanded the case to the immigration judge “to allow the parties to supplement and update

the record and to allow the Immigration Judge to make a new determination as to whether

[Chupina] is eligible for withholding of removal . . . [and protection under the CAT].” Thus,

instead of affirming the immigration judge’s order of removal within the meaning of

§ 1101(a)(47)(B)(i), the BIA in this case affirmed only the immigration judge’s ruling as to

Chupina’s asylum application and returned jurisdiction to the immigration judge for further

proceedings on Chupina’s remaining applications for CAT protection and withholding of

removal. See Matter of Patel, 16 I. & N. Dec. 600, 601 (B.I.A. 1978) (stating that where the BIA

remands to the immigration judge for further proceedings, “it divests itself of jurisdiction of that

case unless jurisdiction is expressly retained”); id. (stating that the BIA may qualify or limit the

issues on remand). Significantly, Chupina’s remanded applications seek mandatory forms of

relief and protection from removal, and, if granted, effectively would result in the cancellation of

any order removing Chupina to Guatemala. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(c).

Thus, having remanded the case to the immigration judge for consideration of applications which

directly affect whether Chupina, who conceded removability, can in fact be removed to


                                                  6
Guatemala, the BIA’s decision cannot constitute a “final order of removal.”

       This result is consistent with Foti v. INS, 375 U.S. 217 (1963), where the Supreme Court,

construing an earlier version of the immigration statutes, held that the denial of discretionary

relief from removal was “antecedent to and a constituent part of the ‘final order of deportation.’”

Id. at 226. Although Chupina’s remanded applications for CAT protection and withholding of

removal do not seek discretionary forms of relief, the Supreme Court’s reasoning in Foti is

equally applicable here. In Foti, the Supreme Court explained that “all determinations made

during and incident to the administrative proceedings” were included within an appellate court’s

jurisdiction and that review of the finding of removability and the denial of relief should be
reviewed “by the same court at the same time.” Id. at 227, 229. Thus, because Chupina’s

pending applications directly affect whether he may be removed to Guatemala, Foti strongly

counsels that Chupina’s order of removal is not final until those applications have been resolved

by the agency. Cf. Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (noting that a final decision is

“the ‘consummation’ of the agency’s decisionmaking process” and must “not be of [an] . . .

interlocutory nature” (quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.

103, 113 (1948))).3

       Nonetheless, Chupina argues that review of his petitions at this time is proper because

there may not be a “final order of removal” upon the agency’s adjudication of his applications for

withholding of removal and protection under the CAT. Specifically, while Chupina concedes

that an award of withholding of removal requires entry of an underlying “order of removal,” see

       3
          Insofar as we held in Alibasic that “a BIA order denying relief from removal and
remanding for the sole purpose of considering voluntary departure is a final order of removal,”
547 F.3d at 83–84 (emphasis added), that decision does not conflict with Foti nor does it govern
this case. The relief of voluntary departure does not affect the alien’s removability from the
United States; rather, it is “a discretionary form of relief that allows certain favored aliens —
either before the conclusion of removal proceedings or after being found deportable — to leave
the country willingly [in lieu of removal].” Dada v. Mukasey, 128 S. Ct. 2307, 2312 (2008); see
also 8 U.S.C. § 1229c(b)(1). Accordingly, where, as here, the BIA has remanded the record for
further proceedings to determine Chupina’s eligibility for withholding of removal and protection
under the CAT — applications which directly affect his removability to Guatemala — Alibasic is
inapposite.

                                                 7
Matter of I-S- & C-S-, 24 I. & N. Dec. 432, 433–34 (B.I.A. 2008), he contends that an award of

CAT protection does not. He therefore argues that, despite the guarantee of an “order of

removal” with respect to his withholding-of-removal claim, in the event he is granted CAT

protection, there would still be no “order of removal” in his case. Without an order of removal,

Chupina reasons, there can never be a “final” order of removal upon which this Court can

exercise jurisdiction. We need not attempt to reconcile the logical difficulties posed by

Chupina’s hypothetical because we reject the premise that an “order of removal” does not

underlie a grant of CAT protection.

       The term “order of deportation,” which is synonymous with the term “order of removal,”
see Rhodes-Bradford v. Keisler, 507 F.3d 77, 79 (2d Cir. 2007); Phong Thanh Nguyen v.

Chertoff, 501 F.3d 107, 109 n.4 (2d Cir. 2007); Thapa v. Gonzales, 460 F.3d 323, 333 n.3 (2d

Cir. 2006), is defined by statute as either (1) a determination that the “alien is deportable” from

the United States or (2) an order “ordering deportation” of the alien from the United States. See

8 U.S.C. § 1101(a)(47)(A); Lazo v. Gonzales, 462 F.3d 53, 54 (2d Cir. 2006) (per curiam)

(“[T]he statutory requirement of an order of removal is satisfied when . . . the [immigration

judge] either orders removal or concludes that an alien is removable.”). If Chupina is granted

withholding of removal only, the BIA requires the grant of that relief to include an explicit order

of removal. See Matter of I-S- & C-S-, 24 I. & N. Dec. at 434. Thus, the grant of withholding of

removal would establish an “order of removal” because, for one reason, such grant requires the

immigration judge to “order[] removal.” If Chupina is granted protection under the CAT, then

the grant of that protection necessarily requires the immigration judge to determine whether

Chupina is removable from the United States. See 8 C.F.R. § 1208.16(a), (c) (providing

protection from removal to a country where alien would more likely than not be subject to

torture); see also 8 C.F.R. § 1208.17(a) (providing deferral of removal to eligible aien who “has

been ordered removed” (emphasis added)). Thus, the grant of protection under the CAT would

establish an “order of removal” because such a grant requires a determination by the immigration


                                                  8
judge that the alien is removable. Accordingly, regardless of whether Chupina is granted only

withholding of removal, only protection under the CAT, or granted or denied both withholding

and CAT protection, there will be an “order of removal” that will eventually become final and

subject to this Court’s jurisdiction for review.

       Incidentally, we note that our decision does not preclude Chupina from filing a petition

for review of the agency’s denial of his asylum application, and of the BIA’s reconsideration of

that decision, once the agency has fully adjudicated his remaining applications for withholding of

removal and protection under the CAT. Furthermore, Chupina need not appeal to the BIA the

denial or grant of his applications for withholding of removal and protection under the CAT in
order to preserve his exhausted claim that the denial of his asylum application was in error.4 See

8 U.S.C. § 1252(d)(1). Rather, in the event that no appeal is made to the BIA by either Chupina

or the government following the adjudication of Chupina’s pending applications, Chupina may

challenge the denial of his asylum application within thirty days after the immigration judge’s

decision regarding his applications for withholding of removal and protection under the CAT

becomes final, see id. § 1252(b)(1) (“The petition for review must be filed not later than 30 days

after the date of the final order of removal.”); see also 8 C.F.R. § 1003.39 (“Except when

certified to the [BIA], the decision of the Immigration Judge becomes final upon waiver of

appeal or upon the expiration of the time to appeal [to the BIA] if no appeal is taken whichever

[sic] occurs first.”), assuming, of course, that Chupina’s petition indeed raises a colorable

constitutional claim or question of law to overcome 8 U.S.C. § 1158(a)(3)’s jurisdictional bar,

see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330–32 (2d Cir. 2006).

III.   CONCLUSION

       For the foregoing reasons, the government’s motion to dismiss is GRANTED and the


       4
          Of course, in the event the immigration judge denies either withholding of removal or
protection under the CAT, or both, Chupina must first exhaust his remedies with the BIA with
respect to those two forms of relief if he wishes to challenge those denials in a petition for
review. See 8 U.S.C. § 1252(d)(1).

                                                   9
petitions for review are DISMISSED for lack of jurisdiction. The government’s motion to stay

briefing and Chupina’s motion to proceed in forma pauperis are DENIED as moot.




                                              10
