United States Court of Appeals
AUG 10 2001
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
LAGRIMAS R. DE GUZMAN,
v. No. 00-9526
(No. A 26 607 207)
IMMIGRATION & NATURALIZATION (Petition for Review)
ORDER AND JUDGMENT(1)
Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
(1) This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Lagrimas R. De Guzman seeks review of a final deportation
order of the Board of Immigration Appeals (BIA). On appeal, she raises two
principal legal issues. First, she challenges the BIA's application of the "stop-
time rule" contained in section 309(c)(5) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA)(1) to her case. Second, she
contends that she is nonetheless eligible for suspension of deportation due to
seven years' continuous physical presence in the United States following the
order to show cause that triggered her deportation proceedings.
Respondent contends that the latter issue was not preserved for review
because petitioner did not raise the issue before the BIA. Petitioner contends that
she raised the issue in a motion to reconsider filed with the BIA on the same date
she filed her petition for review with this court. The BIA has since denied the
motion for reconsideration in an order dated December 8, 2000. We agree with
petitioner that she raised this issue before the agency in her motion to reconsider.
Nonetheless, we conclude that we lack jurisdiction to review the issue because
petitioner failed to file a petition for review from the BIA's disposition of that motion.
Timely filing of a petition for review is a mandatory prerequisite to
this court's exercise of jurisdiction. Haroutunian v. INS, 87 F.3d 374, 375
(9th Cir. 1996).
In Stone v. INS, 514 U.S. 386 (1995), the Supreme Court held that pending
motions for reconsideration do not toll the finality of a BIA deportation order. Id.
at 405. In so holding, it also stated that motions for reconsideration are separate,
final agency orders, and indicated that the proper procedure for appealing both
a deportation order and a subsequent denial of a motion for reconsideration is to
file two separate petitions for review which may be consolidated for review.
See id. at 395 ("Upon denial of reconsideration, the petitioner would file
a separate petition to review that second final order."). Because petitioner here
did not file a petition for review within the prescribed time(2) after the BIA's
disposition of her motion for reconsideration, we cannot review her arguments
on an issue raised before the agency for the first time in that motion.
Petitioner did file a timely petition for review from the BIA's deportation
order; therefore, we have jurisdiction to review the single remaining issue
pursuant to 8 U.S.C. . 1105a(a). See Lockett v. INS, 245 F.3d 1126, 1128
(1) The IIRIRA significantly limited judicial review of agency immigration
decisions. Because petitioner was issued a show cause order before April 1,
1997, and because the BIA's deportation order was entered more than thirty days
after September 30, 1996, the so-called "transitional rules" of the IIRIRA apply
topetitioner's case. See Rivera-Jimenez v. INS, 214 F.3d 1213, 1216 n.5
(2) The prescribed time is now thirty days under the transitional rules of the
IIRIRA. Cruz-Navarro v. INS, 232 F.3d 1024, 1026 n.2 (9th Cir. 2000).
(10th Cir. 2001).(3) Our review of petitioner's legal argument is de novo; however,
we "accord deference to the BIA's legal determinations unless they are clearly
contrary to the statute's language or to congressional intent." Id. (quotation
omitted). Petitioner argues that application of the stop-time rule to her case is
unconstitutional because it is impermissibly retroactive. We agree with
respondent that this argument is disposed of by Rivera-Jimenez v. INS, 214 F.3d
1213, 1217 (10th Cir. 2000), and reject it without further discussion.(4) The
petition for review is DENIED.
Entered for the Court
Stephanie K. Seymour
(3) Section 1105a was repealed by IIRIRA. However, the repeal is effective
only as to final orders filed on or after September 30, 1996.
(4) Respondent filed a motion for summary affirmance on this issue in light of
our decision in Rivera-Jimenez. However, our rules preclude such a motion and
therefore it is denied. See 10th Cir. R. 27.2 (A)(1). Petitioner, in response to this
motion, requests that we "have an en banc court reconsider" Rivera-Jimenez.
This statement does not comport with federal requirements for a request for
enbanc consideration, see Fed. R. App. P. 35(b). Further, we deny the request
for initial en banc consideration because petitioner's statement does not
demonstrate "an issue of exceptional public importance" or implicate "a panel
decision that conflicts with a decision of the United States Supreme Court or
ofthis court." 10th Cir. R. 35.1(A).
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