FILED
FOR PUBLICATION JUN 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KNARIK VARUZHANI SHABOYAN, No. 11-71574
a/k/a Knarik Varuzhani Petrosyan,
Agency No. A075-306-631
Petitioner,
v. ORDER
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
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
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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” 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)).
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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 “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
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from the United States” into a single 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.
All pending motions are denied as moot. The temporary stay of removal
will terminate upon issuance of the mandate.
DISMISSED.
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Counsel Listing
Peter Singh, Peter Singh & Associates, P.C., Fresno, California, for the petitioner.
Mona Maria Yousif, Trial Attorney, U.S. Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C., for the respondent.
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