On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-530-318
The opinion of the court was delivered by: Judge Bybee
Argued and Submitted October 8, 2010-Pasadena, California
Before: Raymond C. Fisher and Jay S. Bybee, Circuit Judges, and Edward F. Shea, District Judge.*fn1
Epifanio Teo Pinto petitions for review of a decision by the Board of Immigration Appeals ("BIA") in which the BIA denied asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") but remanded the case to the immigration judge ("IJ") for voluntary departure proceedings. Because our jurisdiction is limited to the review of final orders of removal, 8 U.S.C. § 1252(a), we must first decide whether the BIA's decision in this case is such an order. We have previously held that similar BIA decisions are final orders, first in Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995) ("Castrejon"), where we interpreted § 1252's predecessor, 8 U.S.C. § 1105a (1995), and second in Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (en banc), where we interpreted § 1252 in light of 8 U.S.C. § 1101(a)(47), a post-Castrejon amendment that both defines an order of removal and specifies when the order becomes final. We must now decide whether the Supreme Court's decision in Dada v. Mukasey, 554 U.S. 1 (2008), or the promulgation of a new voluntary departure regulation that became effective on January 20, 2009 deprives us of jurisdiction in this case. Because neither Dada nor the new regulation undermines our jurisdictional holdings in Castrejon and Lolong, we hold that we have jurisdiction over Pinto's petition for review.*fn2
I We begin our jurisdictional journey with an account of the procedural posture of this case and of the law that forms the background for the question before us.
A In 2003, the Department of Homeland Security ("DHS") charged Pinto, a native and citizen of Guatemala, with being removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without having been admitted or paroled. Before the IJ, the Petitioner conceded removability but sought asylum, withholding of removal, and protection under CAT. Specifically, Pinto asserted he was persecuted by Guatemalan guerillas on account of his refusal to join their ranks and their suspicions that he was providing information to the Guatemalan army. Although the IJ granted asylum, the
BIA vacated the IJ's decision and denied asylum, withholding of removal, and CAT protection, concluding that Pinto failed to demonstrate persecution on account of a protected ground. Citing Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004), for the proposition that it lacked the authority to enter an order of removal when it reversed an IJ's grant of discretionary relief from removal, the BIA then remanded the case to the IJ for the limited purpose of considering whether Petitioner qualified for voluntary departure, and, implicitly, for entry of a final order of removal. In 2006, Pinto timely appealed the BIA's decision to this court while voluntary departure proceedings were still pending before the IJ.
 At the time Pinto petitioned for review, this court had jurisdiction under 8 U.S.C. § 1252(a)(1) to review "final order[s] of removal." However, whether we would have concluded that the BIA's decision was a final order of removal was unclear because of possible tension between two of our decisions: Castrejon and Molina-Camacho. In Castrejon, the IJ granted the petitioner suspension from deportation, but the BIA reversed the IJ's grant of discretionary relief and "remanded to the [IJ] for a determination of voluntary departure in lieu of deportation." 60 F.3d at 1361 (paraphrasing the BIA). Interpreting § 1252(a)'s predecessor, 8 U.S.C. § 1105a, which granted us jurisdiction over "final orders of deportation,"*fn3
we held that a BIA decision denying relief from deportation but remanding the case for voluntary departure proceedings was a final order of deportation. Castrejon, 60 F.3d at 1361. We distinguished a previous decision that held "that an appeal from a decision of the Board was a nullity when the petitioner had moved the Board to reconsider its order" because "plainly, an order that was open for reconsideration by the Board was not final." Id. By contrast, in Castrejon the BIA's decision was a final order of deportation because "there was nothing pending before the Board," id. at 1362, and the IJ could not reconsider the Board's order of deportation upon remand, see id. at 1361-62. The BIA's decision was thus effectively final since the BIA had already adjudicated petitioner's deportability; the only lingering question on remand was how petitioner would be deported. See Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011) (explaining that in Castrejon "the removal decision was ...