                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0779n.06

                                           No. 09-4030

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED

GOPINATH SWAMYNATHAN,                            )                                 Nov 21, 2011
                                                 )                           LEONARD GREEN, Clerk
          Petitioner,                            )
                                                 )
v.                                               )    PETITION FOR REVIEW OF THE
                                                 )    DECISION OF THE BOARD OF
ERIC H. HOLDER, Jr., ATTORNEY                    )    IMMIGRATION APPEALS
GENERAL,                                         )
                                                 )                   OPINION
          Respondent.                            )
                                                 )



BEFORE: WHITE and STRANCH, Circuit Judges; and COHN, District Judge.*


          PER CURIAM.       This is an immigration case.       Petitioner Gopinath Swamynathan

(“Petitioner”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”) which

affirmed the denial of his application for relief from removal but remanded his case to the

immigration judge (“IJ”) solely to reconsider the denial of his application for voluntary departure.

Attorney General Eric H. Holder, Jr. (“Respondent”) moved to dismiss the petition for lack of

jurisdiction, arguing that the BIA’s order was not final due to the remand. A panel of this court

denied Respondent’s motion, and directed the parties to address the issue of jurisdiction in their

briefs.



*
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 09-4030
Swamynathan v. Holder

       During the pendency of this appeal, another panel of this court issued a published decision

deciding the same jurisdictional issue presented in this appeal. In Giraldo v. Holder, 654 F.3d 609

(6th Cir. 2011), the panel, while concluding that it had jurisdiction to review the BIA’s order,

declined to exercise jurisdiction for prudential reasons. In light of Giraldo, the petition for review

of the BIA’s order denying withholding of removal is DISMISSED WITHOUT PREJUDICE. As

explained in Giraldo, if Petitioner is granted voluntary departure, he may then decide whether to

comply with the relevant departure provisions under 8 U.S.C. § 1229c(b), or file another petition for

judicial review of his application for withholding of removal.




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