Qingyun Li v. Holder, No. 10-2333

Decided: Dec. 2, 2011

Qingyun Li, a native of China, illegally entered the county in 1998 and remained until she was served with a Notice to Appear by the Department of Homeland Security (DHS). She had applied for an adjustment of status, but both the DHS and Immigration Judge (IJ) denied the request. The IJ ordered Li to voluntarily vacate the country or be removed. On appeal to the Board of Immigration Appeals, the decision to reject the adjustment of status was affirmed but the remanded the case to have the IJ give advisals to Li and grant a new period of voluntary departure.

Li south judicial review of the Board’s decision by the Fourth Circuit. Though the court held it had jurisdiction to hear such matters, it dismissed the petition for “prudential reasons.” First, the court held that the recent Supreme Court decision in Dada v. Mukasey, 554 U.S. 1 (2008) did not specifically reject the reasoning of prior circuit precedent finding that orders like the one in the present case were final decision subject to immediate appeal. However, the court followed the lead of the First and Sixth Circuits (declining to follow the Ninth) finding that exercising jurisdiction in this case “would be inconsistent with scheme envisioned in Dada.” The court therefore dismissed Li’s petitions without prejudice so the IJ could set a voluntary departure date. At that point, Li would be able to decide whether to comply or seek judicial review.

Full Opinion

-C. Alexander Cable

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