Finality and Judicial Review under the Immigration and Nationality Act: A Jurisprudential Review and Proposal for Reform

Under the Immigration and Nationality Act (INA), aliens may petition for judicial review of an adverse decision of the Board of Immigration Appeals (Board) as long as that decision constitutes a “final order of removal.” Usually it is not difficult to ascertain when an alien should file her petition: the thirty-day statutory filing deadline begins to run when the Board issues a decision that affirms the immigration judge’s removal order in its entirety. In some cases, however, an alien seeks multiple forms of relief from removal in a single proceeding. When that occurs, some forms of relief might be granted, while others are denied or require a remand to the immigration judge for further proceedings. This hybrid “mixed” decision often leaves aliens and attorneys wondering when the removal order becomes final, and thus when they should file a petition for review. When the Board issues its decision? Or at the conclusion of the remanded proceedings? Which order constitutes the “final order of removal” for purposes of judicial review? The implications are profound. If an alien misses the correct deadline, she may lose her ability to challenge the denial of relief from removal. Alternatively, if she files the petition too soon, the court may dismiss it as premature, which consumes time and resources for the alien, the courts, and the government alike. Unfortunately, neither the statute nor the decisions of the courts of appeals provides clear guidance on this question. Nonetheless, the Ninth Circuit has recently issued an important en banc decision on finality for purposes of judicial review that provides a useful starting point from which to clarify this convoluted area of law. This Article is an attempt to bring clarity to the issue of finality for purposes of judicial review. Using the Ninth Circuit’s decision in Abdisalan v. Holder as a frame of reference, the Article addresses how the INA and its implementing regulations contemplate “finality,” while also highlighting the conflicting manner in which the courts of appeals have thus far treated finality. This Article then proceeds to consider the Ninth Circuit’s en banc decision in Abdisalan, noting its importance in establishing a more or less uniform definition of finality within that circuit, while also exploring some concerns about the scope and limitations of that decision. Finally, to address broader inconsistencies amongst courts of appeals, this Article proposes two possibilities for reform: (1) a uniform definition of finality adopted across the courts of appeals; and (2) statutory reform that would define specifically and exhaustively what constitutes a final order of removal for purposes of judicial review