Knarik Shaboyan v. Eric Holder, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KNARIK VARUZHANI SHABOYAN, 
a/k/a Knarik Varuzhani Petrosyan, No. 11-71574
Petitioner,
v.  Agency No.
A075-306-631
ERIC H. HOLDER JR., Attorney
General, ORDER
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted to Motions Panel June 28, 2011
Filed June 29, 2011
Before: William C. Canby, Jr., Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
COUNSEL
Peter Singh, Peter Singh & Associates, P.C., Fresno, Califor-
nia, for the petitioner.
Mona Maria Yousif, Trial Attorney, U.S. Department of Jus-
tice, Civil Division, Office of Immigration Litigation, Wash-
ington, D.C., for the respondent.
9101
9102 SHABOYAN v. HOLDER
ORDER
Petitioner Knarik Varuzhani Shaboyan, a native and citizen
of Armenia, petitions for review of an interim order of the
Board of Immigration Appeals (BIA) denying her motion for
a stay of removal pending consideration by the BIA of her
motion to reopen. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We have jurisdiction to determine whether jurisdic-
tion exists. Flores-Miramontes v. INS, 212 F.3d 1133, 1135
(9th Cir. 2000). We dismiss the petition for lack of jurisdic-
tion.
We may review only final orders of removal. Alcala v.
Holder, 563 F.3d 1009, 1015 (9th Cir. 2009); Lopez-Ruiz v.
Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002); see also 8 U.S.C.
§ 1252(a)(1) (referring to “[j]udicial review of a final order of
removal”); § 1252(b)(9) (referring to “judicial review of a
final order under this section”). The controlling question,
then, is whether the BIA order challenged here, an interim
order denying a stay of removal pending the BIA’s disposi-
tion of Shaboyan’s motion to reopen, is a “final order of
removal” that may, without more, give rise to a petition for
review. We conclude that it may not, but that it, like other
interim BIA orders, may be reviewed only as part of a petition
to review a “final order of removal” such as the denial of a
motion to reopen.
The Immigration and Nationality Act (INA), which was
amended in 1996 by the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208,
110 Stat. 3009 (Sept. 30, 1996), does not explicitly define the
term “final order of removal.” However, INA § 101(a)(47)
does define the term “order of deportation” and establishes
when such an order becomes final:
(A) The term “order of deportation” means the order
of the special inquiry officer, or other such adminis-
trative officer to whom the Attorney General has del-
SHABOYAN v. HOLDER 9103
egated the responsibility for determining whether an
alien is deportable, concluding that the alien is
deportable or ordering deportation.
(B) The order described under subparagraph (A)
shall become final upon the earlier of—
(i) a determination by the Board of Immi-
gration Appeals affirming such order; or
(ii) the expiration of the period in which the
alien is permitted to seek review of such
order by the Board of Immigration Appeals.
8 U.S.C. § 1101(a)(47) (emphasis added). Because IIRIRA
eliminated the distinction between “exclusion” and “deporta-
tion” proceedings and replaced both with a single “removal”
proceeding, see, e.g., 8 U.S.C. §§ 1229-1229c, this provision
also functionally defines a “final order of removal.” Lolong v.
Gonzales, 484 F.3d 1173, 1177 n.2 (9th Cir. 2007) (en banc)
(holding that in the context of INA § 101(a)(47), “the terms
‘deportable’ and ‘deportation’ can be used interchangeably
with the terms ‘removable’ and ‘removal,’ respectively”);
Singh v. Gonzales, 499 F.3d 969, 979 (9th Cir. 2007) (apply-
ing INA § 101(a)(47)(A) to define “order of removal”). The
“special inquiry officer” referenced by this provision is an
immigration judge presiding over removal proceedings.
Noriega-Lopez v. Ashcroft, 335 F.3d 874, 883 & n.7 (9th Cir.
2003) (citing 8 C.F.R. § 1.1(l)).
Under this definition, the BIA’s interim order denying a
stay of removal pending resolution of Shaboyan’s motion to
reopen cannot qualify as a “final order of removal.” The order
does not “conclud[e] that the alien is deportable,” nor does it
“order[ ] deportation.” 8 U.S.C. § 1101(a)(47)(A). Moreover,
the final order of removal in this case has already issued. The
BIA’s subsequent interim order denying a stay of removal
would be considered a “final order of removal” only if it is so
9104 SHABOYAN v. HOLDER
“inextricably linked” to the previous removal order that a
grant of relief would render the original order invalid. See
Morales-Izquierdo v. DHS, 600 F.3d 1076, 1082-83 (9th Cir.
2010). But that is not the case. Even if Shaboyan were granted
the stay of removal, the order granting that stay would not
attack the validity of the underlying removal order. Dhangu
v. INS, 812 F.2d 455, 459 (9th Cir. 1987) (“The granting of
a stay pending the BIA’s consideration of the motion to
reopen did not attack the deportation order itself, nor was it
a determination on which the final order of deportation was
contingent.” (internal citation & quotations omitted)).
This is not to say that the BIA’s order denying a stay of
removal can never be reviewed by a court of appeals. The
INA does not absolutely preclude review of such orders, it
simply consolidates “[j]udicial review of all questions of law
and fact . . . arising from any action taken or proceeding
brought to remove an alien from the United States” into a sin-
gle petition for review of a final order of removal. 8 U.S.C.
§ 1252(b)(9); see also Singh, 499 F.3d at 977-78 & n.11;
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.
471, 485 (1999) (holding that to the extent discretionary
determinations like refusal to grant a stay are “reviewable at
all, they at least will not be made the bases for separate
rounds of judicial intervention outside the streamlined process
that Congress has designed” (internal citations & quotations
omitted)). Thus, the BIA’s order denying Shaboyan’s request
for a stay would still be reviewable as part of a petition for
review stemming from a final order of removal. See Lopez-
Ruiz, 298 F.3d at 887 (observing that a petition for review of
a final order of removal may seek review of “any ground
which [the petitioner] has raised before the BIA before the
final order of removal”). In the present case, however, the
petitioner does not seek review of the BIA’s denial of a stay
as part of the review of a final order of removal; she seeks
review of the denial of a stay as an independent matter. For
such review we lack jurisdiction.
SHABOYAN v. HOLDER 9105
All pending motions are denied as moot. The temporary
stay of removal will terminate upon issuance of the mandate.
DISMISSED.