Anthony Ogio v. Immigration & Naturalization Service

Ogio seeks review of a decision of the Board of Immigration Appeals (“BIA”). Because we lack jurisdiction, we dismiss Ogio’s petition for review.

I

The BIA affirmed the immigration judge’s order of deportation on January 13, 1992. On March 17, 1992, Ogio filed a motion for reconsideration of this decision before the BIA. Subsequently, on April 9, 1992, Ogio filed this petition for review.

It is clearly established in this circuit that, if a petition for review is not already pending, the filing of a motion to reopen or to reconsider before the BIA renders the BIA’s prior decision nonfinal for purposes of review in this court. Thus, when a petition for review is filed after a motion to reopen or to reconsider has been made, there is no final deportation order for us to review, and we accordingly lack jurisdiction to hear the merits of the petitioner’s case. Chu v. INS, 875 F.2d 777, 779-80 (9th Cir.1989); Fayazi-Azad v. INS, 792 F.2d 873, 874 (9th Cir.1986); 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). This precisely describes the situation in this ease, and our circuit law therefore mandates…