Alali-Amin v. Mukasey

• Citation: 523 F.3d 1039
• Decision Date: 28 April 2008
• Docket Number: No. 06-75411.,06-75411.
• Parties: Sayed Mohamad ALALI-AMIN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

523 F.3d 1039

Sayed Mohamad ALALI-AMIN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-75411.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2008.

Filed April 28, 2008.

Homayun F. Zadeh, San Francisco, CA, for the petitioner.

Anh-Thu P. Mai and Liza S. Murcia, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A28 763 018.

Before: WILLIAM C. CANBY, JR., and MILAN D. SMITH, JR., Circuit Judges, and STEPHEN G. LARSON,^* District Judge.

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 jurisdiction 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 authorized 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 deportation 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 further 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 petitioner deported to Iran; however, the IJ also granted him protection 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, petitioner 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 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 administrative 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." Petitioner's argument is foreclosed by the statutory definition of an "order of deportation" and the accompanying provision 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...