Otto Perez Castillo v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2019
• Docket: 14-73017
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OTTO ANAEL PEREZ CASTILLO, No. 14-73017

Petitioner, Agency No. A070-069-532

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted January 18, 2019 San Francisco, California

Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.

Petitioner Otto Anael Perez Castillo petitions for review of a decision by the

Board of Immigration Appeals (“BIA”) denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). Respondent argues that we must dismiss for lack of jurisdiction. We

hold that we lack jurisdiction over Perez Castillo’s petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. “[W]hether we have jurisdiction is a purely legal question, which we

determine de novo.” Abdisalan v. Holder, 774 F.3d 517, 521 (9th Cir. 2014), as

amended (Jan. 6, 2015) (en banc). We have “jurisdiction to review ‘a final order

of removal.’” Id. at 523 (quoting 8 U.S.C. § 1252(a)(1)). A petition for review of

an order of removal “must be filed not later than 30 days after the date of the final

order of removal.” 8 U.S.C. § 1252(b)(1). “This time limit is ‘mandatory and

jurisdictional.’” Abdisalan, 774 F.3d at 521 (quoting Stone v. INS, 514 U.S. 386,

405 (1995)).

In Pinto v. Holder, 648 F.3d 976, 980 (9th Cir. 2011), we held that a BIA

decision affirming a finding of removability that remands to the IJ only “to

consider [the petitioner’s] eligibility for voluntary departure” was a final order of

removal from which a petition for review could be brought and was, “effectively,

the only order that we [could] review.” Id. In Singh v. Lynch, 835 F.3d 880, 883

(9th Cir. 2016), we applied Pinto and held that because a BIA decision remanding

solely for voluntary departure proceedings was a final order of removal, it started

the clock for appeal purposes. We therefore dismissed as untimely a petition filed

more than 30 days after that BIA order. Id.

Here, Perez Castillo did not file his petition for review within 30 days of the

BIA’s decision affirming the IJ’s denial of his claims for asylum, withholding, and

CAT protection, which remanded only on voluntary departure. Under Singh, his

2 petition is untimely,1 and we therefore lack jurisdiction over Perez Castillo’s

petition for review.

DISMISSED.

1 In light of Pinto, which involved a remand to consider a petitioner’s eligibility for voluntary departure, see Pinto, 648 F.3d at 980, we decline to distinguish Singh on the grounds that Singh involved only a remand for advisals on voluntary departure, rather than other voluntary departure proceedings, as Petitioner urges. See Singh, 835 F.3d at 881-82; see also Abdisalan, 774 F.3d at 526 n.8 (“[W]e need not revisit our rule that the BIA’s decision is a final order of removal when it remands for consideration of voluntary departure but denies all other forms of relief.”).