Elsie Marie Mayard v. INS

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-2469
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Elsie Marie Mayard, *
*
Petitioner, *
*
Petition for Review of an
v. * Order
of the Immigration
* and
Naturalization Service.
Immigration and Naturalization Service, *
*
[UNPUBLISHED]
Respondent. *
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Submitted: July 21, 1997
Filed: August 6,
1997
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Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
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PER CURIAM.
On March 6, 1997, the Board of Immigration Appeals
(BIA) denied Elsie Mayard&s motion to reopen deportation
proceedings for consideration of an application for
suspension of deportation. Mayard appealed that decision
to this court on May 29, 1997. We dismissed Mayard&s
appeal for lack of jurisdiction, and we now deny Mayard&s
motion for reconsideration of that decision.
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
§ 306, 110 Stat. 3009, [1666] (1996), repealed section
106 of the Immigration and Nationality Act (INA) and
replaced it with another judicial review provision. See
IIRIRA § 306. IIRIRA was enacted on September 30, 1996,
and most of its provisions did not take effect until
April 1, 1997. See IIRIRA § 309(a). However, IIRIRA
provided for certain transitional standards to be used
during the period between the date of enactment and the
effective date. Specifically, IIRIRA provides that
aliens who are subject to “a final order of exclusion or
deportation . . . entered more than 30 days after the
date of the enactment of this Act” must file their
petition for judicial review “not later than 30 days
after the date of the final order of exclusion or
deportation.” IIRIRA § 309(c)(4)(C). This provision
applies where the deportation proceedings were commenced
before IIRIRA&s effective date and concluded after October
30, 1996. IIRIRA § 309(c)(1), (4); Nguyen v. INS, No.
97-60396, 1997 WL 365031, *1 (5th Cir. July 2, 1997). As
the BIA order here was entered in March 1997, Mayard&s
appeal--filed more than 30 days from that date--was
properly dismissed as untimely. See Ibrik v. INS, 108
F.3d 596, 597 (5th Cir. 1997) (per curiam); Narayan v.
INS, 105 F.3d 1335, 1335 (9th Cir. 1997) (per curiam
order).
Mayard argues that section 309 is inapplicable,
because she was not appealing from a final order of
deportation but rather from a denial of a motion to
reopen deportation proceedings. We find this argument is
without merit, because the phrase “order of exclusion or
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deportation” has traditionally been interpreted to
include orders denying motions to reopen. See Chow v.
INS, 113 F.3d 659, 664 (7th Cir. 1997); Choeum v. INS,
Nos. 96-1446, 97-1552, 1997 WL 356365, *12 (1st Cir. July
2, 1997).
Accordingly, Mayard&s motion for reconsideration is
denied.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
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