Akrap v. I.N.S., 91-2825

• Citation: 966 F.2d 267
• Decision Date: 26 June 1992
• Docket Number: No. 91-2825,91-2825
• Parties: Nikola AKRAP, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 267

966 F.2d 267

Nikola AKRAP, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-2825.

United States Court of Appeals,

Seventh Circuit.

Argued April 7, 1992.

Decided June 26, 1992.

Mary L. Sfasciotti, argued, Chicago, Ill., for Nikola Akrap.

Fred Foreman, U.S. Atty., Criminal Div., Chicago, Ill., Lori L. Scialabba, Kristen A. Giuffreda, argued, Dept. of Justice, Office of Immigration Litigation, Washington, D.C., A.D. Moyer, Michael L. Harper, Samuel Der-Yeghiayan, I.N.S., Chicago, Ill., for I.N.S.

Before FLAUM and MANION, Circuit Judges, and SHADUR, District Judge. ^*

SHADUR, District Judge.

Nikola Akrap ("Akrap") petitions this Court for review of a final decision of the Board of Immigration Appeals ("BIA") that denied him relief under Immigration and Nationality Act ("Act") § 212(c), 8 U.S.C. § 1182(c), ¹ and ordered him deported. Akrap also asks that we review BIA's denials of (1) his later request for a stay of deportation and (2) his motion to reopen the deportation proceedings. We lack jurisdiction to review the latter two decisions, and we affirm BIA's first decision.

Factual and Procedural Background

Yugoslavian citizen Akrap was born in Zagreb, Croatia in 1959 and has been a lawful permanent resident of the United States since 1973. Akrap is married to United States citizen Ranka Baltic Akrap ("Ranka"), and together they have three United-States-born sons who were respectively eight, six and one years of age in August 1991. Akrap is the only son of Luca and Marko Akrap ("Luca" and "Marko"), and the two families have shared the occupancy of a two-flat Chicago building owned by the parents (R. 15).

Luca suffers from a number of physical problems--hypertension, hypothyroidism, hypercholesterolemia and severe osteoarthritis--and she has recently undergone surgery for a herniated disc (R. 257, 490). Marko developed non-Hodgkin's lymphoma during the summer of 1990 (R. 107-49). Akrap's counsel informs us that Marko died in September 1991 after having experienced a relapse in July of that year (P.Br. 2, R. 66).

On October 15, 1985 Akrap was convicted in the Circuit Court of Cook County on five counts of delivery of cocaine, after pleading guilty to those charges (R. 481-87, 495-515). Akrap was paroled on July 29, 1988 (R. 489) after serving two years and nine months of his six-year sentence (R. 292, 500, 515). Since his release Akrap has been employed as an automobile mechanic, and together with Ranka he has invested in a livery business and two Chicago condominiums (R. 3-4, 61, 491).

On February 6, 1986 the Immigration and Naturalization Service ("INS") issued an "Order To Show Cause and Notice of Hearing," charging that Akrap was deportable under Section 241(a)(11) ² because of his drug-related convictions (R. 456). At the ensuing deportation hearing Akrap admitted that he was deportable under Section 241(a)(11) (R. 232) but sought a waiver of deportability under Section 212(c). ³ In his March 7, 1989 decision Immigration Judge Thomas Pullen found that Akrap was statutorily eligible for Section 212(c) relief, but he denied Akrap's request as a matter of discretion and ordered him deported to Yugoslavia (R. 232-40).

Akrap appealed the Immigration Judge's decision, but on July 2, 1991 BIA affirmed the decision and dismissed Akrap's appeal (R. 177-81). On August 2 Akrap filed a motion to reopen his deportation proceedings for the consideration of new evidence as to his father's health and as to political unrest in Yugoslavia and Croatia. Akrap simultaneously requested a stay of his deportation pending consideration of that motion (R. 1-9). On August 5 BIA denied his request for a stay of deportation, observing that "there is little likelihood that the motion [to reopen] will be granted" (R. 175).

On August 6 Akrap filed a petition for review in this Court, stating:

The above-named Petitioner, pursuant to 8 U.S.C. Section 1105a, Public Law 87-301, seeks review of a final order of the Board of Immigration Appeals dated August 5, 1991, denying Petitioner's Motions to Reopen Deportation Proceedings and for a review of the Board's order of deportation dated July 2, 1991, ordering his deportation to Yugoslavia.

Of course the August 5 order had not at all denied (or actually ruled in any way on) Akrap's motion to reopen--it merely commented on its probable merits in the course of denying his motion for a stay of deportation. Ultimately BIA did deny Akrap's motion to reopen, but that did not take place until September 10 (R. 172-73). And Akrap did not then file a petition here for review of the September 10 order within 90 days of its issuance, as expressly required by Section 106(a)(1), 8 U.S.C. § 1105a(a)(1).

Instead, more than 60 days after that 90-day period had passed--on February 11, 1992--Akrap filed in this Court a "Motion to Consolidate for Judicial Review of the Orders of the Board of Immigration Appeals Dated July 2, 1991 and September 10, 1991 or in the Alternative for Leave to File Amended Petition for Review." Just under two weeks later (on February 24) we denied Akrap's motion to amend the petition for review and deferred ruling on the "motion to consolidate" pending the argument on the merits.

In light of the tortuous path marked out by Akrap and his counsel, our first task must be to determine just which issues we currently have jurisdiction to review. Only then will we be in a position to turn to the substantive merits of the case.

Jurisdiction

Akrap's inaccurate and premature August 6 reference to BIA's having denied his motion to reopen obviously cannot serve as a petition for review of BIA's eventual September 10 denial of that motion. ⁴ Yet Akrap tries to bootstrap himself into that posture at page 1 of his Reply Brief:

[On August 3, 1991] Petitioner had filed a motion to reopen with the Board alleging entitlement to asylum and reconsideration of his denied § 212(c) application as a result of new, emergent and unforeseen facts and circumstances. At the same time, Petitioner requested the Board to stay the deportation order, scheduled to take effect on August 6, 1991, pending his motion to reopen. The Board, on August 5, 1991 denied the stay because "there is little likelihood that the motion will be granted". (R. 175). The petition for review requested review of both the order of July 2, 1991, and the order of August 5, 1991, specifically as it pertained to the ruling on the motion to reopen. By September 10, 1991, the Board issued its formal ruling on the motion to reopen, which occurred before the 90 day statutory period for seeking review of the original deportation order had expired.

As we have already said, the August 5 order was not a decision on Akrap's motion to reopen. It was potentially reviewable (if at all) only for what it was: the denial of Akrap's motion for a stay of deportation pending the not-yet-acted-upon motion to reopen.

But no such potential exists before this Court. Because the "denial of a stay is not a 'final order of deportation' under 8 U.S.C. § 1105a(a) [Section 106(a) ]" (Bothyo v. INS, 783 F.2d 74, 75 (7th Cir.1986); Diaz-Salazar v. INS, 700 F.2d 1156, 1159 (7th Cir.1983); Cheng Fan Kwok v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 1974, 20 L.Ed.2d 1037 (1968)), there is no jurisdiction in a Court of Appeals to review such a denial. Any review of decisions regarding stays of deportation falls instead within the district courts' habeas corpus jurisdiction as now established in Section 106(a)(10), 8 U.S.C. § 1105a(a)(10) (Bal v. Moyer, 883 F.2d 45, 46-47 (7th Cir.1989) (per curiam); Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir.1985)). ⁵

Because Akrap never filed a petition for review of BIA's September 10 decision denying his motion to reopen, that decision is not before us. Hence we lack jurisdiction to review it. Akrap tries to escape that consequence by arguing that Section 106(a)(6) somehow authorizes us to "consolidate" a review of BIA's September 10 order with our review of the underlying July 2 final order of deportation, even though he has not filed a petition for review of the later September 10 order. To that end his "motion to consolidate" review of the two orders posits that a separate petition for review was not necessary because "review of the [September 10] order was automatically consolidated with review of the final order of deportation dated July 2, 1991, under Section 106(a)(6)."

That proposition is belied by the statutory language itself. Section 106(a), 8 U.S.C. § 1105a(a), provides as to consolidations:

The procedure prescribed by, and all the provisions of chapter 158 of Title 28 shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title [Section 242(b) ] or comparable provisions of any prior Act, except that--

* * * * * *

(6) whenever a petitioner seeks review of an order under this section, any review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order.

* * * * * *

That reference to "any review sought with respect to a motion to reopen ... such an order" plainly contemplates that review of the order disposing of the motion must be "sought" as a precondition to any consolidation. And the earlier text of Section 106(a) makes it equally clear that such review must be sought in accordance with the procedure outlined in Chapter 158 of Title 28. In that respect 28 U.S.C. § 2344 provides:

Any party aggrieved by [a final order reviewable under this chapter] may within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. ⁶

It is really tautological to hold that a party, in order to seek review of any final order, must file a petition for review of that order. Absent such a...