Nyenye v. INS

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 3, 1999
• Docket: 99-9515
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 3 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

MOJU NYENYE,

Petitioner,

v. No. 99-9515 (BIA No. A-74-641-753) IMMIGRATION & (Petition for Review) NATURALIZATION SERVICE,

Respondent.

ORDER AND JUDGMENT *

Before TACHA, KELLY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this petition for review. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. This case is before the court on petition of Moju Nyenye for review of the

final order of the Board of Immigration Appeals (BIA), dismissing his appeal of

the immigration judge’s denial of his applications for asylum and withholding of

deportation under 8 U.S.C. §§ 1158(a) and 1253(h). Mr. Nyenye also seeks a stay

of deportation pending decision on his petition for review.

In their response to Mr. Nyenye’s motion for stay of deportation,

respondents Janet Reno and the Immigration and Naturalization Service (INS)

allege that the petition for review is untimely and accordingly, the petition should

be dismissed for lack of jurisdiction. Therefore, before considering Mr. Nyenye’s

motion for stay, we must determine whether we have jurisdiction over the

underlying action. See Desktop Direct, Inc. v. Digital Equip. Corp. , 993 F.2d

755, 756-57, 760 (10th Cir. 1993) (holding that a prerequisite for appellate

consideration of a motion for stay is appellate jurisdiction over the underlying

appeal).

Section 1105a of the Immigration and Naturalization Act was repealed by

§ 306(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, which alters the availability,

scope, and nature of judicial review in INS cases. Because Mr. Nyenye’s

deportation proceedings commenced before April 1, 1997, IIRIRA’s permanent

“new rules” do not apply to this case. See id. § 309(a), (c)(1). However,

-2- 2 IIRIRA’s “transitional rules” do apply, because in this case the agency’s final

order was filed more than thirty days after IIRIRA’s September 30, 1996 date of

enactment. See id. § 309(c)(4). The repeal of § 1105a is not effective in cases

such as this one where the transitional rules are in effect. See id. § 309(c). None

of the transitional rules bar petitioner from seeking judicial review of the INS’s

final order in this case.

Prior to IIRIRA’s enactment, with certain exceptions, a petitioner would

receive an automatic stay of deportation pending appellate consideration of

a petition for review. Under the new law, including the transitional rules,

a petition for review of a final order of exclusion or deportation must be filed

with the court of appeals not later than thirty days after issuance of the final

order. See id. § 309(c)(4)(A)-(D). Moreover, a petitioner must move for a stay or

risk deportation while the petition for review is pending. See id. § 309(c)(4)(F).

Here, the BIA issued its final order dismissing Mr. Nyenye’s appeal on

March 25, 1998. See 8 C.F.R. § 243.1 (order of deportation “become[s] final

upon dismissal of an appeal by the [BIA]”). Mr. Nyenye filed his petition for

review with this court on May 3, 1999, over one year later. Mr. Nyenye claims

that he did not receive notice of the BIA’s final order until April 27, 1999, when

the INS arrested him. The record, however, contains a copy of a letter from the

BIA transmitting a copy of the final order to Mr. Nyenye’s counsel on March 25,

-3- 3 1998. See Karimian-Kaklaki v. INS , 997 F.2d 108, 110 (5th Cir. 1993) (holding

that BIA transmittal letter to counsel satisfies federal notice regulations). In his

motion for stay, Mr. Nyenye alleges that the order was sent to the wrong address

for his attorney. Belying Mr. Nyenye’s contention, his former counsel asserts in

his affidavit that, although he did not receive the order, the transmittal letter was

sent to the correct address. In addition, Mr. Nyenye contends that the order was

sent to the wrong address for the INS. Although if true, this may affect the

actions of the INS, Mr. Nyenye does not explain how this would affect his filing

of a timely petition for review.

It is axiomatic that the lack of a timely petition for review is jurisdictional

and deprives this court of the authority to review final orders of deportation.

See Saadi v. INS , 912 F.2d 428, 428 (10th Cir. 1990) (holding that requirements

of 8 U.S.C. § 1105a are mandatory and jurisdictional). The order to be reviewed

in this case was dated March 25, 1998. The thirty-day period for review began

running on that date. Mr. Nyenye’s petition was not filed until May 3, 1999, over

thirteen months later. Thus the petition for review is DISMISSED as untimely.

Mr. Nyenye’s motion for stay is DENIED as moot.

ENTERED FOR THE COURT PER CURIAM

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