Demirchyan v. Holder ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARUTYUN DEMIRCHYAN,  No. 06-73326
Petitioner, Agency No.
v. A028-234-622
ERIC H. HOLDER JR. Attorney  D.C. No.
General, 2:08-cv-03452
Respondent. SVW-MAN
 ORDER
Filed April 19, 2011
Before: John T. Noonan, William A. Fletcher, and
Ronald M. Gould, Circuit Judges.
ORDER
The government moves to dismiss Arutyun Demirchyan’s
case for lack of jurisdiction based on his failure to file a notice
of appeal from an order entered by the district court. The
motion is denied.
On May 15, 2008, we issued an order transferring Demir-
chyan’s case to the district court “for a de novo review of
Demirchyan’s citizenship claim” pursuant to 8 U.S.C.
§ 1252(b)(5)(B), which provides that:
If the petitioner claims to be a national of the United
States and the court of appeals finds that a genuine
issue of material fact about the petitioner’s national-
ity is presented, the court shall transfer the proceed-
ing to the district court of the United States for the
6083
6084 DEMIRCHYAN v. HOLDER
judicial district in which the petitioner resides for a
new hearing on the nationality claim and a decision
on that claim as if an action had been brought under
section 2201 of title 28.
Our order directed that Demirchyan’s petition for review be
held in abeyance pending the district court’s citizenship deter-
mination.
On September 15, 2010, the district court entered judgment
concluding that Demirchyan “is not a U.S. citizen pursuant to
8 U.S.C. § 1432(a)” and returning the case “to the Ninth Cir-
cuit for further proceedings.” See Demirchyan v. Gonzales,
No. 08-3452, 2010 WL 3521784, *18-19 (C.D. Cal. Sept. 8,
2010). On December 21, 2010, we issued an order granting
the government’s motion to lift the order holding Demirch-
yan’s case in abeyance.
The government argues that because a notice of appeal is
required for this court to review a judgment in a 28 U.S.C.
§ 2201 action brought in the district court, a notice of appeal
is required for the court to review a judgment entered pursu-
ant to a transfer under 8 U.S.C. § 1252(b)(5)(B). The govern-
ment’s argument mistakenly assumes that in transferring
Demirchyan’s citizenship claim to the district court, the court
of appeals relinquished jurisdiction. In Campbell v. Blodgett,
998 F.2d 763 (9th Cir. 1993) (en banc), we held that findings
of fact and conclusions of law entered by the district court
pursuant to a limited remand are not separately appealable. Id.
at 763. For the present purpose, we see no meaningful distinc-
tion between transfer under 8 U.S.C. § 1252(b)(5)(B) and lim-
ited remand. Demirchyan was not required to file a notice of
appeal to obtain review of the district court’s citizenship
determination.
No later than 40 days after the date of this order, Demir-
chyan shall move for voluntary dismissal or show cause why
we should not adopt the district court’s findings and conclu-
DEMIRCHYAN v. HOLDER 6085
sions and deny the petition for review. If Demirchyan elects
to show cause, a response may be filed within 10 days after
service of Demirchyan’s memorandum. Any motions to sup-
plement the record shall be filed no later than 20 days after
the date of this order.