Background
Denis Gorbunov, a Russian citizen, requested asylum after arriving at the Laredo, Texas port of entry in August 2024. The Department of Homeland Security initiated removal proceedings, and an immigration judge sustained the removal charge. Gorbunov sought asylum, statutory withholding of removal, and protection under the Convention Against Torture, alleging persecution by the Russian government because of his political activity.
The immigration judge granted asylum but did not adjudicate the withholding and CAT claims. On DHS’s appeal, the Board of Immigration Appeals reversed, denied asylum and statutory withholding, and remanded for consideration of CAT protection, further proceedings consistent with its decision, and entry of a new decision. Gorbunov petitioned the Fifth Circuit before the immigration judge ruled on remand. Although the immigration judge later denied CAT relief and that decision became administratively final, the merits panel reconsidered de novo an earlier motions-panel ruling that jurisdiction existed.
The Court’s Holding
The Fifth Circuit dismissed the petition for lack of jurisdiction because no final order of removal existed when Gorbunov filed it. Under 8 U.S.C. § 1252(a)(1), appellate jurisdiction extends only to final orders of removal, and finality must exist when the petition for review is filed.
The court held that the BIA’s remand was general rather than limited. Merely identifying CAT protection as one purpose of the remand did not restrict the immigration judge to withholding-only proceedings, particularly because the BIA also authorized “further proceedings” and entry of a new decision. Because a general remand permits the immigration judge to consider additional issues affecting removability or relief, the removal question remained administratively open.
The immigration judge’s later CAT ruling did not cure the premature petition. Applying Moreira v. Mukasey, the court explained that a petition filed before a removal order becomes final is a nullity. It also rejected Gorbunov’s law-of-the-case argument because a motions panel’s jurisdictional ruling is provisional and does not bind the merits panel. The court distinguished the Fourth Circuit’s decision in Lopez v. Bondi because Lopez involved a BIA affirmance of an immigration judge’s removal order, while Gorbunov’s case involved a general remand without such an affirmance.
Key Takeaways
- A BIA remand is general unless the Board expressly limits it to a specific purpose.
- A general remand leaves the removal question administratively unresolved and therefore does not produce a final order reviewable under 8 U.S.C. § 1252(a)(1).
- A removal order that becomes final after a petition for review is filed does not retroactively cure the premature filing.
Why It Matters
The decision clarifies how the Fifth Circuit will apply immigration finality principles after Riley v. Bondi. Although pending withholding-only proceedings do not necessarily prevent an otherwise final removal order from being reviewed, a general BIA remand remains nonfinal because the immigration judge retains authority to address matters beyond withholding.
Immigration practitioners must examine the BIA’s remand language carefully and wait for administrative finality before petitioning for review. Filing early can require dismissal even if the agency proceedings conclude while the petition is pending.