Shahin Shirkhani, Petitioner, v. Immigration & Naturalization Service, Respondent, 956 F.2d 278 (10th Cir. 1992)

This matter comes before the court on Petitioner's Petition for Review and Motion for Stay of Deportation, as well as Respondent's Motion to Dismiss and Request for Expedited Consideration. Although Petitioner avers in his Petition for Review that he is seeking review of an order of the Board of Immigration Appeals dismissing his appeal, he admits in his Motion for Stay and brief in support, that he is seeking review of the Board's denial of his motion to stay pending consideration of his motion to reopen. Petitioner also admits that the Board has yet to rule on his motion to reopen, but argues that in denying his request for a stay, the Board effectively denied his motion to reopen.

Exclusive jurisdiction lies in this court over "petitions for review of final orders of deportation entered against aliens in the United States pursuant to administrative proceedings under ... 8 U.S.C. § 1252(b)." Salehi v. District Director, INS, 796 F.2d 1286, 1289 (10th Cir. 1986). This jurisdiction "extends to denials of motions to reopen deportation proceedings before the BIA and to determinations made incident to a motion to reopen." Id. at 1290. A denial of a stay pending consideration of a motion to reopen is not a "final order of deportation," however, see Gando-Coello v. INS, 857 F.2d 25, 26 (Fed. Cir. 1988), and cases cited therein, so absent a determination on the motion to reopen, we cannot review the denial of stay. See also Reid v. INS, 766 F.2d 113, 115-16 (3d Cir. 1985) (considering and rejecting argument that denial of stay is effective denial of motion to reopen).

Because the Petition for Review concerns only the Board's denial of stay and the Board has not yet ruled on the motion to reopen, we have no jurisdiction over the Petition and must dismiss the action. Accordingly, the Petition for Review is DISMISSED for lack of jurisdiction.