Ammi v. Holder, Jr.

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 3, 2009
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
ABDELFATAH AIT AMMI, a/k/a
Abdelfa Aitammi,
Petitioner,
No. 09-9524
v. (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before TACHA, EBEL, and MURPHY, Circuit Judges.
Abdelfatah Ait Ammi, a citizen of Morocco, has filed a petition for review
and a motion to stay his removal from the United States. An Immigration Judge
(IJ) entered an order of removal and ordered his detention in the custody of the
Department of Homeland Security. The Board of Immigration Appeals (BIA)
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
denied his appeal of the IJ’s custody decision on April 14, 2009. His appeal of
the removal order remains pending before the BIA.
This court’s jurisdiction is “grounded in statute.” Bender v. Clark,
744 F.2d 1424, 1426 (10th Cir. 1984). Jurisdiction to review removal
proceedings arises under a specific statutory grant in the Immigration and
Nationality Act, 8 U.S.C. § 1252(a)(1). See Hamilton v. Gonzales, 485 F.3d 564,
565 (10th Cir. 2007). Section 1252(a)(1) “establishes judicial review of a final
order of removal.” Id. (alteration and quotation omitted). “We construe
§ 1252(a)(1) narrowly and have consistently found we lack jurisdiction to review
immigration decisions that fall short of a final removal order.” Id. at 566.
“An order of removal becomes final when the BIA either (1) affirms an
immigration judge’s removal decision, or (2) when the time for appealing that
decision has expired.” Id. at 565-66. Mr. Ammi’s case satisfies neither of these
requirements. As a consequence, we have no jurisdiction to review the removal
order entered by the IJ.
We also lack jurisdiction to review the agency’s decision to detain
Mr. Ammi without bond. Under some circumstances, an alien may challenge his
detention in district court in a 28 U.S.C. § 2241 habeas action. Ochieng v.
Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008). But “[t]his court is not the
appropriate forum to raise such a challenge in the first instance.” Id.-2-
The petition for review is DISMISSED for lack of jurisdiction. “We
express no opinion on the merits of any § 2241 petition [Mr. Ammi] may file.”
Id. Further, a prerequisite for consideration of a motion for stay pending appeal
is appellate jurisdiction over the underlying appeal. See Desktop Direct, Inc. v.
Digital Equip. Corp., 993 F.2d 755, 756-57 (10th Cir. 1993). Mr. Ammi’s motion
for a stay is DENIED and his motion for leave to proceed in forma pauperis is
GRANTED.
Entered for the Court
Per Curiam
-3-