Gopinath Swamynathan v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0779n.06
No. 09-4030
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GOPINATH SWAMYNATHAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., ATTORNEY
GENERAL,
Respondent.
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PETITION FOR REVIEW OF THE
DECISION OF THE BOARD OF
IMMIGRATION APPEALS
O P I N I O N
BEFORE: WHITE and STRANCH, Circuit Judges; and COHN, District Judge.*
PER CURIAM. This is an immigration case. Petitioner Gopinath Swamynathan
(“Petitioner”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”) which
affirmed the denial of his application for relief from removal but remanded his case to the
immigration judge (“IJ”) solely to reconsider the denial of his application for voluntary departure.
Attorney General Eric H. Holder, Jr. (“Respondent”) moved to dismiss the petition for lack of
jurisdiction, arguing that the BIA’s order was not final due to the remand. A panel of this court
denied Respondent’s motion, and directed the parties to address the issue of jurisdiction in their
briefs.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, *
sitting by designation.

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No. 09-4030
Swamynathan v. Holder
During the pendency of this appeal, another panel of this court issued a published decision
deciding the same jurisdictional issue presented in this appeal. In Giraldo v. Holder, 654 F.3d 609
(6th Cir. 2011), the panel, while concluding that it had jurisdiction to review the BIA’s order,
declined to exercise jurisdiction for prudential reasons. In light of Giraldo, the petition for review
of the BIA’s order denying withholding of removal is DISMISSED WITHOUT PREJUDICE. As
explained in Giraldo, if Petitioner is granted voluntary departure, he may then decide whether to
comply with the relevant departure provisions under 8 U.S.C. § 1229c(b), or file another petition for
judicial review of his application for withholding of removal.
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