Kai Ki Kon v. Alberto Gonzales, Attorney General

Kai Ki Kon (“Kon”), a native and citizen of Hong Kong, petitions for review of the Board of Immigration Appeals’ (“BIA’s”) decision summarily affirming an immigration judge’s denial of asylum and withholding of removal. As an initial matter, we must decide whether Kon’s voluntary departure from the United States deprives this Court of jurisdiction. We find that it does and, accordingly, dismiss Kon’s claims for lack of jurisdiction.

The Illegal Immigration Reform and Immigrant Responsibility Act’s (“IIRI-RA”) transitional rules apply in cases where deportation or exclusion proceedings commenced before April 1, 1997, and the final deportation or exclusion order was issued after October 20, 1996. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). The Government issued a charging document on January 23, 1997 alleging that Kon was excludable from the United States, and the BIA issued its final order on October 8, 1997. Thus, the IIRI-RA’s transitional rules apply here.

The IIRIRA’s transitional rules incorporate 8 U.S.C. § 1105a(e), which provided in relevant part:

8 U.S.C. § 1105a(c) (emphasis added).

Because Kon voluntarily departed the United States to Hong Kong after…