Jermanine Salmon v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: June 18, 2012
• Docket: 11-3796
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 11-3796 ___________

JERMAINE RONNIE SALMON, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent

____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A058-462-933) Immigration Judge: Honorable Margaret R. Reichenberg ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) June 15, 2012

Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges

(Opinion filed: June 18, 2012) ___________

OPINION ___________

PER CURIAM

Salmon petitions for review of the Board of Immigration Appeals’ (“BIA”)

August 11, 2011 order upholding the decision of the Immigration Judge denying

Salmon’s request for a continuance of his removal proceedings while he pursued post- conviction relief and ordering Salmon removed to Jamaica. The Government filed a

motion to dismiss, arguing that the petition for review was not timely filed. On March

30, 2012, the BIA sua sponte reopened Salmon’s appeal pursuant to 8 C.F.R. § 1003.2(a).

The Government now seeks leave to withdraw its original motion to dismiss, but moves

for dismissal on the ground that there is no longer a final order of removal over which

this Court has jurisdiction. We will grant the motion to dismiss for lack of a final order,

as well as the motion to withdraw the first motion to dismiss.

This Court’s jurisdiction is limited to final orders of removal. See 8 U.S.C.

§ 1252(a)(1); Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). While an agency order

may satisfy the finality requirement at the time the petition for review is filed, subsequent

administrative proceedings can affect finality, thereby eliminating a Court of Appeals’

jurisdiction. In particular, “the grant[ing] of a motion to reopen vacates the previous

order of deportation or removal and reinstates the previously terminated immigration

proceedings.” Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004). Because the BIA

has reopened Salmon’s immigration proceedings, there is no longer a final order of

removal, and we therefore lack jurisdiction to entertain his petition for review.

Accordingly, we will grant the Government’s April 19, 2012 motion to dismiss for

lack of jurisdiction, as well as the Government’s motion to withdraw its first motion to

dismiss. Salmon’s “Motion to Request this Court to Entertain Petitioner’s Supplemental

Brief,” filed on January 23, 2012, is denied as unnecessary.