Moreno-Aguilar v. Immigration & Naturalization Services

51 F. App'x 733

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2002
• Docket: No. 01-71660; INS. No. A14-657-249
• Status: Published

Opinion

MEMORANDUM

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Petitioner Robert Moreno-Aguilar (Moreno) appeals the Board of Immigration Appeals’ (BIA) September 20, 2001 order denying his motion to reopen deportation proceedings. In that order, the BIA held that because Moreno had voluntarily departed the United States while his appeal was pending, thus withdrawing his appeal, the BIA lacked jurisdiction to reopen the case. We affirm the BIA’s order denying Moreno’s motion to reopen.

When Moreno departed the United States, he effected an automatic withdrawal of his appeal pending before the BIA:

Departure from the United States of a person who is the subject of a deportation proceeding subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.

8 C.F.R. § 3.4. As the BIA indicated, an alien whose appeal has been thus withdrawn is not permitted to move the BIA to reopen the case: “A motion to reopen ... shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.” 8 C.F.R. § 3.2(d). Based on the foregoing regulatory directives, we cannot conclude that the BIA erred in denying Moreno’s motion to reopen.

PETITION DENIED

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.