FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAYED MOHAMAD ALALI-AMIN,
Petitioner, No. 06-75411
v.
Agency No.
A28 763 018
MICHAEL B. MUKASEY, ATTORNEY
GENERAL, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 15, 2008—San Francisco, California
Filed April 28, 2008
Before: William C. Canby, Jr., and Milan D. Smith, Jr.,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge Larson
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
4593
ALALI-AMIN v. MUKASEY 4595
COUNSEL
Homayun F. Zadeh, San Francisco, California, for the peti-
tioner.
Anh-Thu P. Mai and Liza S. Murcia, United States Depart-
ment of Justice, Civil Division, Office of Immigration Litiga-
tion, Washington, D.C., for the respondent.
OPINION
LARSON, District Judge:
Sayed Mohamad Alali-Amin, a native and citizen of Iran,
petitions for review of the Board of Immigration Appeals’
(“BIA”) decision dismissing his appeal from the immigration
judge’s (“IJ”) denial of his motion to reopen as untimely. For
the reason set forth below, we deny the petition.
The REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), confers juris-
diction upon this court to review constitutional claims and
questions of law related to an order of removal.
Petitioner was admitted to the United States on August 14,
1983, on a six-month, non-immigrant visa. On December 6,
1983, his status was changed to student, and he was autho-
rized to remain for the duration of that status. On September
9, 1988, petitioner filed an application for asylum, which was
denied on March 7, 1990, and petitioner was subjected to
deportation proceedings because he failed to comply with the
conditions of his status. On June 20, 1990, an Immigration
Judge (“IJ”) found petitioner deportable and issued a deporta-
4596 ALALI-AMIN v. MUKASEY
tion order. Petitioner filed an appeal with the BIA, and the
parties thereafter filed a joint motion to reopen the deportation
proceeding. On April 3, 1991, the BIA granted that motion
and remanded the case to the IJ to allow petitioner to seek
asylum and withholding of deportation.
On June 19, 1991, while his deportation proceeding was
pending, petitioner was convicted of two counts of vehicular
manslaughter while intoxicated (in violation of Cal. Penal
Code § 191.5) and one count of use of cocaine (in violation
of Cal. Health & Safety Code § 11550). He was sentenced to
ten years of imprisonment for the vehicular manslaughter
offense.
On March 31, 1992, the IJ administratively closed the
deportation proceeding in light of petitioner’s incarceration.
On September 12, 1996, the former INS sought petitioner’s
deportation on the additional ground of his conviction. The IJ
found petitioner subject to deportation; petitioner renewed his
request for asylum and withholding of deportation, and fur-
ther sought protection under the Convention Against Torture
(“CAT”). On January 31, 2000, the IJ denied the application
for asylum and withholding of deportation and ordered peti-
tioner deported to Iran; however, the IJ also granted him pro-
tection under CAT and ordered deferral of his deportation
pursuant to 8 C.F.R. § 208.17 (duplicated at 8 C.F.R.
§ 1208.17).1
Approximately six years later, on December 15, 2005, peti-
tioner filed his motion to reopen the removal proceeding.
Therein, petitioner sought an adjustment of his status to that
of lawful permanent resident by reason of his marriage to a
United States citizen. The IJ denied the motion to reopen as
1
Deferral of a removal order under CAT is granted where the applicant
establishes that it is more likely than not that he would be tortured if
removed to his native country. 8 C.F.R. § 1208.17(a); Nuru v. Gonzales,
404 F.3d 1207, 1216 (9th Cir. 2005).
ALALI-AMIN v. MUKASEY 4597
untimely, reasoning that the time limitations set forth in 8
C.F.R. § 1003.23(b)(1) applied to bar petitioner’s request for
relief, and that 8 C.F.R. § 1208.17(e), which might otherwise
authorize a motion to reopen by an alien, was inapplicable
because petitioner did not seek the only relief authorized
therein.2
Petitioner appealed the IJ’s decision, which was affirmed
on October 24, 2006, by the BIA. The BIA held that, pursuant
to 8 C.F.R. § 1003.39 (relating to the finality of decisions of
immigration judges), the January 31, 2000, decision of the IJ
became final upon the expiration of the ninety-day period in
which petitioner was entitled to appeal the decision. With the
present petition, petitioner seeks review of the October 24,
2006, decision by the BIA.
A denial of a motion to reopen immigration proceedings is
generally reviewed for abuse of discretion; however, where,
as here, the issue presented is a “purely legal question,” a de
novo standard applies. Cano-Merida v. I.N.S., 311 F.3d 960,
964 (9th Cir. 2002).
In 2000, petitioner was ordered to be deported, but his
removal was deferred pursuant to CAT. The regulations are
clear that motions to reopen removal orders must be filed no
later than ninety days after the date of entry of the removal
order. 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen must be
filed within 90 days of the date of entry of a final administra-
tive order of removal, deportation, or exclusion, or on or
before September 30, 1996, whichever is later.”). Petitioner’s
motion to reopen was not filed until almost six years later, on
December 15, 2005. He nevertheless contends that his motion
is timely because his removal order was not a “final order.”
2
This provision allows an alien to file “a written request” “at any time”
to seek the termination of his deferral, effectively allowing an alien to seek
his own deportation. 8 C.F.R. § 1208.17(e)(1).
4598 ALALI-AMIN v. MUKASEY
[1] Petitioner’s argument is foreclosed by the statutory defi-
nition of an “order of deportation” and the accompanying pro-
vision regarding the finality of such an order. The January 31,
2000, order clearly falls within the statutory definition of an
“order of deportation”:
(47)(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.
8 U.S.C. § 1101(a)(47)(A). That petitioner’s deportation was
deferred under CAT does not alter this conclusion. To the
contrary, CAT deferrals may be granted only when an alien
“has been ordered removed.” 8 C.F.R. § 1208.17(a); see also
Molina-Camacho v. Ashcroft, 393 F.3d 937, 940 (9th Cir.
2004) (noting that 8 U.S.C. § 1101(a)(47)(A), which defines
“order of deportation,” now applies to orders of removal as
well), overruled on other grounds by Lolong v. Gonzales, 484
F.3d 1173, 1177-78 (9th Cir. 2007) (en banc).
[2] “Orders of deportation,” in turn, become final when
they are affirmed by the BIA or, if they are not appealed, they
become final when the time to appeal them expires:
(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)(B). Here, the IJ’s January 31, 2000,
decision was an “order of deportation,” but it was not
ALALI-AMIN v. MUKASEY 4599
appealed by petitioner; thus, the order became “final” upon
the expiration of the ninety-day time period in which peti-
tioner had to seek review of the order, which was well before
the date petitioner filed his motion in 2005.
[3] Thus, consistent with 8 U.S.C. § 1101(a)(47), the IJ cor-
rectly concluded that petitioner’s motion to reopen proceed-
ings was subject to the time limitations set forth in 8 C.F.R.
§ 1003.23(b)(1). Applying those time limitations, the IJ cor-
rectly concluded that petitioner’s motion was untimely. The
Board correctly affirmed the IJ’s decision.
PETITION FOR REVIEW DENIED.