Auob, Rakzan v. Gonzales, Alberto R. , 192 F. App'x 550 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 30, 2006
Decided August 30, 2006
Before
Hon. JOEL M. FLAUM, Chief Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 04-3341 & 05-2529
RAKZAN AUOB, et al., Petition for Review of Orders of the
Petitioners, Board of Immigration Appeals.
v.
Nos. A78-372-735, A78-372-736, A78-
ALBERTO R. GONZALES, 372-737, A78-372-738, A78-372-739,
Respondent. A78-372-740.
ORDER
Rakzan Auob, a native and citizen of Iraq, applied for asylum and other relief
in 2000. She listed her husband and four children as derivative beneficiaries. The first
hearing on the merits took place on December 5, 2002. The hearing was not completed
that day, and the immigration judge continued the matter until May 20, 2003. In the
interim, in March 2003, Saddam Hussein was removed from power in Iraq. On May
9, 2003, prior to the resumption of the hearing, the petitioners moved for a
continuance, asserting that Hussein’s removal had substantially changed the reasons
for their asylum claim. The immigration judge denied the motion for a continuance.
After the petitioners stated that they did not wish to go forward if their request for a
continuance was denied, the immigration judge deemed their requests for asylum,
Nos. 04-3341 & 05-2929 Page 2
withholding of removal, and relief under the Convention Against Torture abandoned.
The Board of Immigration Appeals affirmed the immigration judge’s decision.
Two months later, on October 10, 2004, Auob was baptized a Christian. On
November 8, 2004, the petitioners filed a motion to reopen with the Board based on
this new development. The Board denied the motion to reopen, and, on May 3, 2005,
it denied the petitioners’ subsequent motion to reconsider the denial of their motion to
reopen.
The petitioners then filed a petition for review with this court, contending: (1)
the immigration judge erred when it denied the petitioners’ motion for a continuance;
(2) the Board erred when it denied their motion to reopen; and (3) the Board erred
when it denied the petitioners’ motion for reconsideration. The government’s brief
urged us to deny the petition for review.
In addition to filing a petition for review with this court, the petitioners filed a
motion to reopen with the Board, alleging that country conditions in Iraq had changed
sufficiently to warrant a reopening of their case. On July 26, 2006, the Board granted
the petitioners’ motion to reopen. According to the Board’s opinion, the Department
of Homeland Security had opposed the motion to reopen, on the ground that the motion
exceeded the time and number restrictions for filing motions to reopen under 8 C.F.R.
§ 1003.2(c). The Board, however, found the petitioners had established that conditions
in Iraq had materially changed in a manner sufficient to support the reopening of their
proceedings. As a result, it granted the motion to reopen and remanded the matter to
the immigration judge for further proceedings consistent with the Board’s opinion and
the entry of a new decision.
Shortly thereafter, the government filed a motion to dismiss the instant petition
for review for lack of jurisdiction.* This court may only review final orders of removal.
See, e.g., 8 U.S.C. § 1252(a)(1); Hashish v. Gonzales, 442 F.3d 572, 574 (7th Cir. 2006).
Consequently, when the Board of Immigration Appeals reopens a matter, “the effect
is to render the decision nonreviewable.” Ren v. Gonzales, 440 F.3d 446, 449 (7th Cir.
2006); see also Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2006) (“We . . . hold that
the grant of a motion to reopen vacates the previous order of deportation or removal
and reinstates the previously terminated immigration proceedings.”); see also Lopez-
Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (dismissing petition for lack of
jurisdiction after Board of Immigration Appeals granted motion to reopen). Not only
is dismissal of the petition for review compelled by our precedent, but it is the sensible
result in this case. Conditions in Iraq have changed substantially since the petitioners
filed their initial request for relief, and they warrant a full exploration by an
immigration judge into whether the petitioners are entitled to relief.
*
We allowed the petitioners an opportunity to respond to the government’s
motion to dismiss, but the petitioners have not submitted a response.
Nos. 04-3341 & 05-2929 Page 3
The petition for review is DISMISSED for lack of jurisdiction.