BIA remand for voluntary departure is an appealable order, sort of

Giraldo v. Holder, No. 09-4445 (6th Cir. Aug. 12, 2011) (published)

Joining other circuits and affirming its pre-IIRIRA precedent, the court held that it has jurisdiction to review a BIA decision reversing a grant of relief and remanding for voluntary departure.  The court found that the finality requirement for a petition for review is satisfied in this situation because removability has already been determined and it could not review the voluntary departure determination itself.

Still, the court giveth and the court taketh away.  For prudential reasons, including 1240.26(i)'s automatic vacation of voluntary departure upon the filing of a petition for review, the court declined to review a petition for review in this situation.  The question becomes what to do next.  In the next to last sentence of the opinion, the court suggested that it would accept a petition for review directly from the IJ's decision granting or denying voluntary departure.  I would have preferred the court to be more clear as to whether a noncitizen has to file an appeal with the BIA first or whether it is permissible to skip right to the judicial review stage.  There could be serious consequences for choosing the wrong path the review.