Manuel Agusto Santamaria-Ames v. Immigration and Naturalization Service , 106 F.3d 408 ( 1996 )

106 F.3d 408

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Manuel Agusto SANTAMARIA-AMES, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-70365.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1996.*
Decided Dec. 27, 1996.

Before: BROWNING, THOMPSON and THOMAS, Circuit Judges.

1

MEMORANDUM**

2

We review the Board of Immigration Appeal's ("BIA") denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). After a thorough examination of the record and consideration of the briefs, we hold the BIA did not abuse its discretion in denying Santamaria-Ames's motion to reopen. Further, because the BIA's denial of the motion was founded on legimate concerns, the BIA did not violate Santamaria-Ames's due process rights. See Sangabi v. INS, 763 F.2d 374, 375 (9th Cir.1985); Sharma v. INS, 89 F.3d 545, 548 (9th Cir.1996).

3

The INS stated in its brief to the BIA opposing Santamaria's Motion to Reopen that Santamaria can be naturalized under 8 U.S.C. § 1440 "even if he is the subject of an outstanding order of deportation." 8 U.S.C. § 1440(b)(1). In accordance with this representation, we hereby order the INS to stay the deportation of Santamaria pending resolution of Santamaria's section 1440 naturalization application on remand (No. 95-55805, D.C. No. Agv-qws-clr) and any subsequent appeal involving such naturalization application.

4

Accordingly, for the reasons set forth in the BIA's opinion, we affirm the judgment of the BIA.

5

AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3