It's very common for an immigrant seeking asylum in Immigration Court to also apply for withholding of removal and protection under the Convention Against Torture (all three forms of relief are contained in one application).  Sometimes, an individual who isn't eligible for asylum (i.e. someone who filed for this relief more than one year after their last entry into the United States and cannot convince a judge that they meet one of the exceptions to the filing deadline) will be granted withholding of removal.  The individual, however, may not agree with the Immigration Judge's decision that he did not timely-file his asylum application or demonstrate an exception to the filing deadline.  An appeal to the Board of Immigration Appeals on this could follow.  During the pendency of the appeal, the immigrant's background checks (completed prior to the grant of withholding of removal) may expire.  If the Board of Immigration Appeals affirms the denial of asylum, but remands the case for further background checks, is the removal order final?  Is it now time to appeal to the appropriate circuit court of appeals?

The Ninth Circuit, recognizing that its prior case law was contradictory regarding this point, revisited the issue in Abdisalan v. Holder, earlier this week.  They answered the above-posed question in the negative, stating that "[w]hen the BIA remands to the IJ for any reason, no final
order of removal exists until all administrative proceedings have concluded."  

Abdisalan, like my hypothetical immigrant above, was denied asylum based on a failure to demonstrate that she had filed her asylum application within one year of her last entry.  With regard to this issue, the Ninth Circuit stated that it was remanding her case to address the open question of whether "a pre–REAL ID Act asylum applicant’s credible and uncontradicted testimony regarding her date of entry meets the statutory 'clear and convincing evidence' standard."  It will be interesting to see if Abdisalan's case climbs the appellate ladder again while this issue is litigated.  

The full text of Abdisalan v. Holder can be found here: