Muhammad Younus, Petitioner, v. Immigration & Naturalization Service, Respondent, 968 F.2d 22 (10th Cir. 1992)

This matter is before the court on (1) Respondent's Motion to Dismiss Petition for Review and (2) Petitioner's Motion to Stay Action on Petition for Review pending resolution of a motion to reopen the administrative proceedings, evidently submitted to the Bureau of Immigration Appeals (BIA) on May 6, 1992. Concluding that we lack jurisdiction under 8 U.S.C. § 1105a(a) (1), we dismiss the petition and deny the stay as moot.

The Immigration Judge (IJ) issued an order of deportation in this case on June 5, 1991.¹  Thereafter, Petitioner sought an administrative appeal and, on October 23, 1991, the BIA mailed Petitioner's attorney a copy of its decision of the same date dismissing his appeal as untimely.²  Petitioner did not file the instant petition until March 16, 1992.

Due to a recent amendment of § 1105a(a) (1), the amount of time provided for filing a petition for review depends on when the final order of deportation issued. The statute allots six months for final orders entered prior to January 1, 1991, but only ninety days for orders entered thereafter. See § 545(g) (4) of Pub. L. No. 101-649, 104 Stat. 5048, 5067 (1990). Respondent contends that Petitioner's order of deportation did not become final until the BIA dismissed his appeal and, therefore, the instant petition, filed more than ninety days after October 21, 1991, is untimely. We agree. The applicable regulations and case law support Respondent's position. See 8 C.F.R. § 243.1 (order of deportation "become [s] final upon dismissal of an appeal by the [BIA]"); see, e.g., Garcia v. INS, 690 F.2d 349, 350 (3d Cir. 1982); Luna-Benalcazar v. INS, 414 F.2d 254, 256 (6th Cir. 1969). Moreover, even if we were to accept Petitioner's contention that his ineffective administrative appeal should be disregarded under § 1105a(a) (1) and the IJ's decision considered the "final order of deportation" for which review is sought, we would again agree with Respondent that, under these suppositions, the instant petition is still untimely (by some fifteen months) and, in any event, is barred for failure to exhaust administrative remedies as required by § 1105a(c), see Romero-Carmona v. INS, 725 F.2d 104, 105 (10th Cir. 1984).

The requirements of § 1105a are mandatory and jurisdictional. Lee, 685 F.2d at 343; see Saadi v. INS, 912 F.2d 428, 428 (10th Cir. 1990); Romero-Carmona, 725 F.2d at 105-06. Because we lack jurisdiction, we dismiss the petition and deny Petitioner's pending Motion to Stay as moot. See, e.g., Waggoner v. Waggoner, 938 F.2d 1120, 1123 (10th Cir. 1991).