Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1987)
Annotate this CaseOm PRAKASH, Petitioner,v.U.S. DEPARTMENT OF IMMIGRATION AND NATURALIZATION, Respondent.
No. 87-7255.
United States Court of Appeals, Ninth Circuit.
Submitted July 11, 1988.Decided Aug. 30, 1988.
Before CHOY, TANG and O'SCANNLAIN, Circuit Judges.
MEMORANDUM*
Om Prakash (Prakash) petitions this court to review the order of the Board of Immigration Appeals (BIA) denying his application for termination of deportation proceedings. He also petitions for review of the BIA's orders denying his motion to reopen and his motion for a stay of deportation pending the BIA's ruling on his motion to reopen. We dismiss for lack of jurisdiction.1
An immigration judge (IJ) had found Prakash deportable and permitted him to depart voluntarily. Prakash timely appealed the IJ's finding of deportability to the BIA. The BIA dismissed the appeal and granted Prakash thirty days to depart voluntarily.
On June 17, 1987, Prakash filed a motion to reopen the deportation proceedings with the BIA and, in conjunction, a motion for a stay of deportation pending the BIA's ruling on the motion to reopen. On June 19, 1987, Prakash petitioned this court for review of the BIA's dismissal of his appeal. The BIA denied the motion for a stay by order filed June 22, 1987, and denied the motion to reopen by order filed August 26, 1987. Prakash filed no appeal from these latter two orders.
This court only has jurisdiction to review final orders of deportation. 8 U.S.C. § 1105a; See Dhangu v. INS, 812 F.2d 455, 459 (9th Cir. 1987). Where a petitioner files a motion to reopen before seeking judicial review of a final order of deportation, the otherwise appealable final order of deportation is no longer appealable until the motion is denied. Fayazi-Azad v. INS, 792 F.2d 873, 874 (9th Cir. 1986); Chung v. INS, 720 F.2d 1471, 1474 (9th Cir. 1983), cert. denied, 467 U.S. 1216 (1984). Both the denial of the motion to reopen and the original order of deportation are reviewable by this court if a petitioner files a petition for review within six months of the denial of the motion to reopen. Chung, 720 F.2d at 1474.
Here, prior to filing his petition for review with this court, Prakash filed a motion to reopen his deportation proceedings. Therefore, the BIA's final order denying his application for termination of deportation proceedings was not appealable until the BIA denied Prakash's motion to reopen on August 26, 1987.2 See Fayazi-Azad, 792 F.2d at 874; Chung, 720 F.2d at 1474. Because Prakash failed to file a petition for review with this court within six months of the denial of his motion to reopen, we lack jurisdiction to review the BIA's decision. See Chung, 720 F.2d at 1474.
The petition for review is DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Prakash requests oral argument. This case is suitable for submission without oral argument, however, because the legal standard is established and the result is clear. Fed. R. App. P. 34(a); 9th Cir.R 34-4
In his reply brief, Prakash contends the BIA telephonically denied his motion for a stay of deportation on June 18, 1987, one day before he petitioned this court for review of the BIA's decision. There is no indication in the record, however, that the BIA telephonically denied the motion. Even assuming Prakash's contention is true, this court lacks jurisdiction to review the BIA's denial of his motion because the BIA's denial of a motion for a stay of deportation pending a ruling on a motion to reopen is not a final order of deportation reviewable by this court. See 8 U.S.C. § 1105a; Dhangu, 812 F.2d at 459
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