Summary
In Fayazi-Azad v. INS, 792 F.2d 873 (9th Cir. 1986), we decided the converse of Berroteran-Melendez, that when the alien moves to reopen " before seeking judicial review, the 'otherwise appealable final order becomes no longer appealable in this court until the motion is denied or the proceedings have been effectively terminated.'"
Summary of this case from Castillo-Villagra v. I.N.S.Opinion
No. 85-7246.
The panel finds this case appropriate for submission without oral argument pursuant to Fed.R. App.P. 34(a) and 9th Cir.R. 3(f).
Decided June 19, 1986.
Ahmad F. Fayazi-Azad, pro se.
Richard M. Evans, Morris H. Deutsch, Dept. of Justice, Washington, D.C., for respondent.
Petition to Review a Decision of the Immigration and Naturalization Service.
Before WALLACE, ALARCON, and WIGGINS, Circuit Judges.
ORDER
Fayazi-Azad's petition for review of the BIA's order denying his application for asylum and withholding of deportation, filed on May 2, 1985, is not a final order appealable in this court. On December 27, 1984, prior to filing his petition for review, Fayazi-Azad filed a motion to reopen his deportation proceedings. The BIA has not yet adjudicated Fayazi-Azad's motion to reopen. Where a petitioner elects to file a motion to reopen before seeking judicial review, the "otherwise appealable final order becomes no longer appealable in this court until the motion is denied or the proceedings have been effectively terminated." Hyun Joon Chung v. INS, 720 F.2d 1471, 1474 (9th Cir. 1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2659, 81 L.Ed.2d 366 (1984). Because the time for filing a petition for judicial review on the underlying order does not begin to run until the agency acts upon the motion to reopen, it is not necessary for a petitioner to file a protective appeal from the BIA's original decision in order to preserve the issues raised therein. Id.
The petition is DISMISSED.
In order to afford Fayazi-Azad the opportunity to seek a stay of deportation from the BIA pending resolution of his motion to reopen, we stay our mandate for 30 days. See Bu Roe v. INS, 771 F.2d 1328, 1335 (9th Cir. 1985).