Lopez-Ruiz v. Ashcroft, 01-70285.
| Decision Date | 02 August 2002 |
| Docket Number | No. 01-70285.,01-70285. |
| Citation | 298 F.3d 886 |
| Parties | Ignacio LOPEZ-RUIZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Wolfgang Gehart, Vellanoweth & Gehart, LLP, Los Angeles, CA, for the petitioner.
Norah Ascoli Schwarz, Senior Litigation Counsel, Office of Immigration Litigation, Washington, DC, Linda S. Wendtland, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals, INS No. A19-137-423.
Before NOONAN, WARDLAW and BERZON, Circuit Judges.
Ignacio Lopez-Ruiz timely appealed to this court the BIA's decision to affirm an order for his removal. Lopez-Ruiz' substantive argument is that his drug-related criminal conviction in 1998 was not for an aggravated felony. The 1998 California conviction, which formed the only basis for Lopez-Ruiz' removal, has since been vacated. On April 29, 2002, the BIA granted a motion to reopen and remanded to the Immigration Judge (IJ) so that the IJ could consider the pertinence, if any, to his immigration case of the vacating of Lopez-Ruiz' sentence.
Lopez-Ruiz asks us to hold his appeal in abeyance pending a new administrative decision by the BIA. The government asks us to dismiss for lack of jurisdiction.
The BIA's granting of the motion to reopen means there is no longer a final decision to review. This court only reviews final orders of removal. See, e.g., 8 U.S.C. §§ 1252(a)(1), 1252(b)(1). In Escobar Ruiz v. INS, 838 F.2d 1020, 1022 (9th Cir.1988), overruled on other grounds by Ardestani v. INS, 502 U.S. 129, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991), for example, we dismissed a petition for review as moot where the BIA ordered deportation proceedings reopened following oral argument on the petition for review.
Lopez-Ruiz nonetheless asks us to hold this appeal in abeyance, presumably to retain his authority to raise the issues involved in his current appeal if the BIA rules against him once again. The BIA granted the motion to reopen only for consideration of the fact that Lopez-Ruiz' conviction has been vacated. Lopez-Ruiz' current appeal is on different grounds, that the offense for which he was convicted was not an aggravated felony. See 8 U.S.C. § 1101(a)(43); 8 U.S.C. § 1227(a)(2)(A)(iii).
Even if there were authority, there would be no need to hold the current appeal in abeyance in order to protect petitioner's rights. If the BIA...
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