Natasha Belishta Franc Belishta Desara Belishta v. John Ashcroft, Attorney General

ORDER

This is an unusual case. For the following reasons, we deny in part and dismiss in part the petition for review. However, in order to allow the Board of Immigration Appeals (“BIA”) an opportunity to address an unresolved issue of first impression in this circuit, we stay our mandate for 120 days.

I

Natasha Belishta seeks asylum under a relatively new immigration regulation, 8 C.F.R. § 1208.13 (b)(l)(iii)(B), which provides an opportunity for asylum to certain victims of past persecution who face “serious harm” upon removal, even after conditions in the petitioner’s country of origin have improved. This discretionary regulation became effective on January 5, 2001, after the immigration judge (“IJ”) denied Belishta’s original application for asylum and withholding of removal, and after Bel-ishta appealed her case to the BIA. 8 C.F.R. § 1208.13 (b)(1)(iii)(B) was in effect when the BIA summarily affirmed the IJ’s decision.

Because Belishta did not seek relief under the new regulation before the BIA (because it was not in existence when she filed her appeal), we lack jurisdiction to consider the merits of this claim. See Ortiz v. INS, 179 F.3d 1148, 1152 (9th Cir.1999)…