Nyenye v. INS ( 1999 )

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This order and judgment is not binding precedent, except under the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Section 1105a of the Immigration and Naturalization Act was repealed by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,
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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,
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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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