Chin Kak Joo v. Immigration and Naturalization Service

813 F.2d 211

Chin Kak JOO, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-7256.

United States Court of Appeals,
Ninth Circuit.

Submitted Jan. 16, 1987.
Decided Jan. 30, 1987.
Designated for Publication March 25, 1987.

William F. Thompson, III, Honolulu, Hawaii, for petitioner.

Michael C. Johnson, Washington, D.C., for respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before HUG and ALARCON, Circuit Judges, and STEPHENS, Jr.,* Senior District Judge.

PER CURIAM:

1

In May of 1983, the INS issued an Order To Show Cause to C.K. Joo alleging that he had been employed in an unpermitted job and was therefore subject to deportation. Before his deportation hearing on September 15, 1983, Joo departed the United States. The immigration judge conducted the hearing in his absence and issued an order of deportation and a denial of voluntary departure. Joo filed a timely appeal to the BIA, and the BIA decided that it had no jurisdiction over the appeal because of his departure from the country prior to his appeal. Joo now petitions this court for review of the immigration judge's action and the BIA's decision. This court lacks jurisdiction to review Joo's case because of his failure to exhaust his administrative remedies.

2

The applicable portion of 8 C.F.R. sec. 3.3(a) (1986) states: "Departure from the United States of a person under deportation proceedings prior to the taking of an appeal from a decision in his case shall constitute a waiver of his right to appeal." A waiver of the right to appeal is a failure to exhaust administrative remedies. Hernandez-Almanza v. INS, 547 F.2d 100, 103 (9th Cir.1976); see also Kladis v. INS, 343 F.2d 513, 515 (7th Cir.1965). The failure to exhaust administrative remedies deprives this court of jurisdiction to review the order of deportation. 8 U.S.C. sec. 1105a(c).

3

In summary, the BIA correctly decided that it lacked jurisdiction over the appeal, and this court also lacks jurisdiction to review Joo's case. The petition for review is DENIED.

*

Honorable Albert Lee Stephens, Jr., Senior United States District Judge, Central District of California, sitting by designation