Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1987)

No. 87-7213.

United States Court of Appeals, Ninth Circuit.

Before CANBY and NORRIS, Circuit Judges, and STEPHEN V. WILSON^** , District Judge:

MEMORANDUM^*** 

Byung In Lee filed a petition for review of the March 24, 1987 order of the Board of Immigration Appeals (BIA) affirming the Immigration Judge's order of deportation and discretionary denial of Lee's voluntary departure. We do not, however, reach the merits of Lee's petition because the BIA's order is not, in this case, an appealable final order.

After receipt of the BIA's March 24th order, on May 5, 1987, Lee filed a timely motion to reopen the deportation proceedings with a simultaneous request for a stay of deportation. The request for a stay was denied on May 18, 1987. Two days later, Lee filed the petition for review at issue in this appeal. It was not until two months later that the motion to reopen the deportation proceedings was denied by the BIA.

Where a petitioner elects to file a motion to reopen before seeking judicial review, the "otherwise appealable final order becomes no longer appealable in this court until the motion is denied or the proceedings have been effectively terminated."

Fayazi-Azad v. INS, 792 F.2d 873, 874 (9th Cir. 1986) (emphasis in original) (quoting Hyun Joon Chung v. INS, 720 F.2d 1471, 1474 (9th Cir. 1983), cert. denied, 467 U.S. 1216 (1984)). This jurisdictional rule applies " [e]ven though the INS may have completed action on the motion to [reopen] prior to oral argument in this court, [as] we lacked jurisdiction when the petition was filed because there was no final deportation order to review." Chu v. INS, 875 F.2d 777, 781 (9th Cir. 1989).

Lee contends that the BIA telephoned his counsel on May 18, 1987 to advise counsel that the request for a stay was denied "because the Motion to Re-open would be denied." There is no support for this contention in the record. The BIA did not state that the motion to reopen was or would be denied prior to Lee's filing of the petition for review; rather, in its order denying Lee's request for a stay the BIA simply concluded that " [a]fter consideration of all information, ... there is little likelihood that the motion [to reopen] will be granted." (emphasis added.) The motion to reopen was not actually denied until entry of the separate order dated July 30, 1987.

Because there was a motion to reopen pending before the BIA at the time Lee filed his petition for review, Lee's petition for review is DISMISSED for lack of jurisdiction.