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Knarik Varuzhani Shaboyan, A/K/A Knarik Varuzhani Petrosyan v. Eric H. Holder

June 29, 2011

KNARIK VARUZHANI SHABOYAN, A/K/A KNARIK VARUZHANI PETROSYAN, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A075-306-631

FOR PUBLICATION

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ORDER

Submitted to Motions Panel June 28, 2011

Before: CANBY, GOULD, and TALLMAN, Circuit Judges.

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 jurisdiction exists. Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir. 2000). We dismiss the petition for lack of jurisdiction.

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 disposition 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 administrative officer to whom the Attorney General has delegated 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 Immigration 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 "deportation" 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) (applying INA § 101(a)(47)(A) to define "order of removal"). The "special inquiry officer" ...


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