Manuel Agusto Santamaria-ames, Petitioner, v. Immigration and Naturalization Service, Respondent, 106 F.3d 408 (9th Cir. 1996)

MEMORANDUM^** 

We review the Board of Immigration Appeal's ("BIA") denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 116 L. Ed. 2d 823 (1992). After a thorough examination of the record and consideration of the briefs, we hold the BIA did not abuse its discretion in denying Santamaria-Ames's motion to reopen. Further, because the BIA's denial of the motion was founded on legimate concerns, the BIA did not violate Santamaria-Ames's due process rights. See Sangabi v. INS, 763 F.2d 374, 375 (9th Cir. 1985); Sharma v. INS, 89 F.3d 545, 548 (9th Cir. 1996).

The INS stated in its brief to the BIA opposing Santamaria's Motion to Reopen that Santamaria can be naturalized under 8 U.S.C. § 1440 "even if he is the subject of an outstanding order of deportation." 8 U.S.C. § 1440(b) (1). In accordance with this representation, we hereby order the INS to stay the deportation of Santamaria pending resolution of Santamaria's section 1440 naturalization application on remand (No. 95-55805, D.C. No. A-14-644-932) and any subsequent appeal involving such naturalization application.

Accordingly, for the reasons set forth in the BIA's opinion, we affirm the judgment of the BIA.

AFFIRMED.