* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 23 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHAHIN SHIRKHANI,

Petitioner, No. 98-9539

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent.

ORDER AND JUDGMENT *

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

During the pendency of an appeal of the Board of Im migration Appeals’ denial of Mr. Shirkhani’s motion to reopen deportat ion proceedings, Mr. Shirkhani left the United States. As a result, we lack jurisdiction to consider his petition for review. It is, therefore, dismissed.-2- I. BACKGROUND Mr. Shahin Shirkhani, a citizen of Iran, entered th e United States in 1983 pursuant to a non-immigrant fiancé visa. See Admin. Rec. at 213 (Oral Dec. of the Immigration J. dated June 29, 1987). After he remained in the United States longer than permitted, the Immigration and Naturali zation Service (INS) initiated deportation proceedings against Mr. Shirkhani in 1985. See id. at 386-88 (Order to Show Cause dated August 16, 1985). At the concl usion of the proceedings and administrative appeals, the Board of Immigration Ap peals (BIA) ordered Mr. Shirkhani deported to Iran. See id. at 139-45 (BIA Decision filed April 26, 1989). Mr. Shirkhani submitted three motions to reopen the deportation proceedings, the last of which was denied in 1998. See id. at 2-3 (BIA Decision filed Sept. 10, 1998). Mr. Shirkhani appealed thatdecision to this Court and was granted a stay of deportation proceedings, which wa s dissolved in February 1999 following a motion by the INS. See Shirkhani v. INS , No. 98-9539 (10th Cir. filed Feb. 22, 1999) (Order Dissolving Stay of Depo rtation Proceedings). Thereafter, the District Director of the INS grante d an administrative stay to allow Mr. Shirkhani the opportunity to seek perm anent residence in the Phillippines and pursue his application for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman , or Degrading Treatment-3-

or Punishment, June 26, 1987, S. Treaty Doc. No. 10 0-20 (1988), 1465 U.N.T.S. 85. See Pet.’s Mem. Br. Regarding Issue of Mootness at 2. While still protected by this administrative stay, Mr. Shirkhani departed from the United States to Canada on or about August 6, 1999. See id. Mr. Shirkhani’s counsel informed this Court of his departure at oral argument on Jan uary 19, 2000, and we ordered additional briefing on the issues of mootness and j urisdiction.

II. JURISDICTION AFTER DEPARTURE FROM THE UNITED STATES Mr. Shirkhani’s deportation proceedings commenced p rior to April 1, 1997, and his final order of deportation was issued afterOctober 30, 1996. Accordingly, as both parties have acknowledged, jur isdiction over this matter is governed by § 106 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1105a (1994) (repealed 1996), as amended by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Actof 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009. See Jurado-Gutierrez v. Greene , 190 F.3d 1135, 1143 (10th Cir. 1999). The transitional rules governing judicial review se t forth in IIRIRA § 309(c)(4) incorporate INA § 106(c), 8 U.S.C. §1105a(c). See Hose v. INS , 180 F.3d 992, 996 (9th Cir. 1999) (en banc); Sofinet v. INS , 188 F.3d 703, 708 (7th Cir. 1999). Section 106(c) states: “[a]n order of deportation . . . shall not be-4-

reviewed by any court if the alien . . . has depart ed from the United States after issuance of the order.” For purposes of § 106, the BIA’s order denying the motion to reopen is a final order of deportation. See Cheng Fan Kwok v. INS , 392 U.S. 206, 216 (1968). Thus, when Mr. Shirkhani departed from the United States, he divested this court of jurisdiction to r eview the order. Because we lack jurisdiction, we DISMISS Mr. Shirkhani’s petition for review. Entered for the Court,

Robert H. Henry Circuit Judge