FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KNARIK VARUZHANI SHABOYAN, 

a/k/a Knarik Varuzhani Petrosyan, No. 11-71574 Petitioner,

Agency No.

v.  A075-306-631

ERIC H. HOLDER JR., Attorney ORDER General,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted to Motions Panel June 28, 2011

Filed June 29, 2011

Before: William C. Canby, Jr., Ronald M. Gould, and

Richard C. Tallman, Circuit Judges.

COUNSEL

Peter Singh, Peter Singh & Associates, P.C., Fresno, California, for the petitioner.

Mona Maria Yousif, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

9101
ORDER

Petitioner Knarik Varuzhani Shaboyan, a native and citizen

of Armenia, petitions for review of an interim order of the

Board of Immigration Appeals (BIA) denying her motion for

a stay of removal pending consideration by the BIA of her

motion to reopen. Our jurisdiction is governed by 8 U.S.C.

§ 1252. We have jurisdiction to determine whether jurisdiction exists. Flores-Miramontes v. INS, 212 F.3d 1133, 1135

(9th Cir. 2000). We dismiss the petition for lack of jurisdiction.

We may review only final orders of removal. Alcala v.

Holder, 563 F.3d 1009, 1015 (9th Cir. 2009); Lopez-Ruiz v.

Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002); see also 8 U.S.C.

§ 1252(a)(1) (referring to “[j]udicial review of a final order of

removal”); § 1252(b)(9) (referring to “judicial review of a

final order under this section”). The controlling question,

then, is whether the BIA order challenged here, an interim

order denying a stay of removal pending the BIA’s disposition of Shaboyan’s motion to reopen, is a “final order of

removal” that may, without more, give rise to a petition for

review. We conclude that it may not, but that it, like other

interim BIA orders, may be reviewed only as part of a petition

to review a “final order of removal” such as the denial of a

motion to reopen.

The Immigration and Nationality Act (INA), which was

amended in 1996 by the Illegal Immigration Reform and

Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208,

110 Stat. 3009 (Sept. 30, 1996), does not explicitly define the

term “final order of removal.” However, INA § 101(a)(47)

does define the term “order of deportation” and establishes

when such an order becomes final:

(A) The term “order of deportation” means the order

of the special inquiry officer, or other such administrative officer to whom the Attorney General has del9102 SHABOYAN v. HOLDER
egated the responsibility for determining whether an

alien is deportable, concluding that the alien is

deportable or ordering deportation.

(B) The order described under subparagraph (A)

shall become final upon the earlier of—

(i) a determination by the Board of Immigration Appeals affirming such order; or

(ii) the expiration of the period in which the

alien is permitted to seek review of such

order by the Board of Immigration Appeals.

8 U.S.C. § 1101(a)(47) (emphasis added). Because IIRIRA

eliminated the distinction between “exclusion” and “deportation” proceedings and replaced both with a single “removal”

proceeding, see, e.g., 8 U.S.C. §§ 1229-1229c, this provision

also functionally defines a “final order of removal.” Lolong v.

Gonzales, 484 F.3d 1173, 1177 n.2 (9th Cir. 2007) (en banc)

(holding that in the context of INA § 101(a)(47), “the terms

‘deportable’ and ‘deportation’ can be used interchangeably

with the terms ‘removable’ and ‘removal,’ respectively”);

Singh v. Gonzales, 499 F.3d 969, 979 (9th Cir. 2007) (applying INA § 101(a)(47)(A) to define “order of removal”). The

“special inquiry officer” referenced by this provision is an

immigration judge presiding over removal proceedings.

Noriega-Lopez v. Ashcroft, 335 F.3d 874, 883 & n.7 (9th Cir.

2003) (citing 8 C.F.R. § 1.1(l)). 

Under this definition, the BIA’s interim order denying a

stay of removal pending resolution of Shaboyan’s motion to

reopen cannot qualify as a “final order of removal.” The order

does not “conclud[e] that the alien is deportable,” nor does it

“order[ ] deportation.” 8 U.S.C. § 1101(a)(47)(A). Moreover,

the final order of removal in this case has already issued. The

BIA’s subsequent interim order denying a stay of removal

would be considered a “final order of removal” only if it is so

SHABOYAN v. HOLDER 9103
“inextricably linked” to the previous removal order that a

grant of relief would render the original order invalid. See

Morales-Izquierdo v. DHS, 600 F.3d 1076, 1082-83 (9th Cir.

2010). But that is not the case. Even if Shaboyan were granted

the stay of removal, the order granting that stay would not

attack the validity of the underlying removal order. Dhangu

v. INS, 812 F.2d 455, 459 (9th Cir. 1987) (“The granting of

a stay pending the BIA’s consideration of the motion to

reopen did not attack the deportation order itself, nor was it

a determination on which the final order of deportation was

contingent.” (internal citation & quotations omitted)).

This is not to say that the BIA’s order denying a stay of

removal can never be reviewed by a court of appeals. The

INA does not absolutely preclude review of such orders, it

simply consolidates “[j]udicial review of all questions of law

and fact . . . arising from any action taken or proceeding

brought to remove an alien from the United States” into a single petition for review of a final order of removal. 8 U.S.C.

§ 1252(b)(9); see also Singh, 499 F.3d at 977-78 & n.11;

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.

471, 485 (1999) (holding that to the extent discretionary

determinations like refusal to grant a stay are “reviewable at

all, they at least will not be made the bases for separate

rounds of judicial intervention outside the streamlined process

that Congress has designed” (internal citations & quotations

omitted)). Thus, the BIA’s order denying Shaboyan’s request

for a stay would still be reviewable as part of a petition for

review stemming from a final order of removal. See LopezRuiz, 298 F.3d at 887 (observing that a petition for review of

a final order of removal may seek review of “any ground

which [the petitioner] has raised before the BIA before the

final order of removal”). In the present case, however, the

petitioner does not seek review of the BIA’s denial of a stay

as part of the review of a final order of removal; she seeks

review of the denial of a stay as an independent matter. For

such review we lack jurisdiction. 

9104 SHABOYAN v. HOLDER
All pending motions are denied as moot. The temporary

stay of removal will terminate upon issuance of the mandate.

DISMISSED.

SHABOYAN v. HOLDER 9105