FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAYED MOHAMAD ALALI-AMIN, 

Petitioner, No. 06-75411

v. Agency No. 

M A28 763 018 ICHAEL B. MUKASEY, ATTORNEY

GENERAL, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 15, 2008—San Francisco, California

Filed April 28, 2008

Before: William C. Canby, Jr., and Milan D. Smith, Jr.,

Circuit Judges, and Stephen G. Larson,* District Judge.

Opinion by Judge Larson

*The Honorable Stephen G. Larson, United States District Judge for the

Central District of California, sitting by designation. 

4593
COUNSEL

Homayun F. Zadeh, San Francisco, California, for the petitioner.

Anh-Thu P. Mai and Liza S. Murcia, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent. 

OPINION

LARSON, District Judge: 

Sayed Mohamad Alali-Amin, a native and citizen of Iran,

petitions for review of the Board of Immigration Appeals’

(“BIA”) decision dismissing his appeal from the immigration

judge’s (“IJ”) denial of his motion to reopen as untimely. For

the reason set forth below, we deny the petition.

The REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), confers jurisdiction upon this court to review constitutional claims and

questions of law related to an order of removal. 

Petitioner was admitted to the United States on August 14,

1983, on a six-month, non-immigrant visa. On December 6,

1983, his status was changed to student, and he was authorized to remain for the duration of that status. On September

9, 1988, petitioner filed an application for asylum, which was

denied on March 7, 1990, and petitioner was subjected to

deportation proceedings because he failed to comply with the

conditions of his status. On June 20, 1990, an Immigration

Judge (“IJ”) found petitioner deportable and issued a deportaALALI-AMIN v. MUKASEY 4595
tion order. Petitioner filed an appeal with the BIA, and the

parties thereafter filed a joint motion to reopen the deportation

proceeding. On April 3, 1991, the BIA granted that motion

and remanded the case to the IJ to allow petitioner to seek

asylum and withholding of deportation. 

On June 19, 1991, while his deportation proceeding was

pending, petitioner was convicted of two counts of vehicular

manslaughter while intoxicated (in violation of Cal. Penal

Code § 191.5) and one count of use of cocaine (in violation

of Cal. Health & Safety Code § 11550). He was sentenced to

ten years of imprisonment for the vehicular manslaughter

offense. 

On March 31, 1992, the IJ administratively closed the

deportation proceeding in light of petitioner’s incarceration.

On September 12, 1996, the former INS sought petitioner’s

deportation on the additional ground of his conviction. The IJ

found petitioner subject to deportation; petitioner renewed his

request for asylum and withholding of deportation, and further sought protection under the Convention Against Torture

(“CAT”). On January 31, 2000, the IJ denied the application

for asylum and withholding of deportation and ordered petitioner deported to Iran; however, the IJ also granted him protection under CAT and ordered deferral of his deportation

pursuant to 8 C.F.R. § 208.17 (duplicated at 8 C.F.R.

§ 1208.17).1

Approximately six years later, on December 15, 2005, petitioner filed his motion to reopen the removal proceeding.

Therein, petitioner sought an adjustment of his status to that

of lawful permanent resident by reason of his marriage to a

United States citizen. The IJ denied the motion to reopen as

1Deferral of a removal order under CAT is granted where the applicant

establishes that it is more likely than not that he would be tortured if

removed to his native country. 8 C.F.R. § 1208.17(a); Nuru v. Gonzales,

404 F.3d 1207, 1216 (9th Cir. 2005). 

4596 ALALI-AMIN v. MUKASEY
untimely, reasoning that the time limitations set forth in 8

C.F.R. § 1003.23(b)(1) applied to bar petitioner’s request for

relief, and that 8 C.F.R. § 1208.17(e), which might otherwise

authorize a motion to reopen by an alien, was inapplicable

because petitioner did not seek the only relief authorized

therein.2

Petitioner appealed the IJ’s decision, which was affirmed

on October 24, 2006, by the BIA. The BIA held that, pursuant

to 8 C.F.R. § 1003.39 (relating to the finality of decisions of

immigration judges), the January 31, 2000, decision of the IJ

became final upon the expiration of the ninety-day period in

which petitioner was entitled to appeal the decision. With the

present petition, petitioner seeks review of the October 24,

2006, decision by the BIA. 

A denial of a motion to reopen immigration proceedings is

generally reviewed for abuse of discretion; however, where,

as here, the issue presented is a “purely legal question,” a de

novo standard applies. Cano-Merida v. I.N.S., 311 F.3d 960,

964 (9th Cir. 2002). 

In 2000, petitioner was ordered to be deported, but his

removal was deferred pursuant to CAT. The regulations are

clear that motions to reopen removal orders must be filed no

later than ninety days after the date of entry of the removal

order. 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen must be

filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or

before September 30, 1996, whichever is later.”). Petitioner’s

motion to reopen was not filed until almost six years later, on

December 15, 2005. He nevertheless contends that his motion

is timely because his removal order was not a “final order.”

2This provision allows an alien to file “a written request” “at any time”

to seek the termination of his deferral, effectively allowing an alien to seek

his own deportation. 8 C.F.R. § 1208.17(e)(1). 

ALALI-AMIN v. MUKASEY 4597
[1] Petitioner’s argument is foreclosed by the statutory definition of an “order of deportation” and the accompanying provision regarding the finality of such an order. The January 31,

2000, order clearly falls within the statutory definition of an

“order of deportation”: 

(47)(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 delegated the responsibility for determining

whether an alien is deportable, concluding that the

alien is deportable or ordering deportation. 

8 U.S.C. § 1101(a)(47)(A). That petitioner’s deportation was

deferred under CAT does not alter this conclusion. To the

contrary, CAT deferrals may be granted only when an alien

“has been ordered removed.” 8 C.F.R. § 1208.17(a); see also

Molina-Camacho v. Ashcroft, 393 F.3d 937, 940 (9th Cir.

2004) (noting that 8 U.S.C. § 1101(a)(47)(A), which defines

“order of deportation,” now applies to orders of removal as

well), overruled on other grounds by Lolong v. Gonzales, 484

F.3d 1173, 1177-78 (9th Cir. 2007) (en banc). 

[2] “Orders of deportation,” in turn, become final when

they are affirmed by the BIA or, if they are not appealed, they

become final when the time to appeal them expires: 

(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)(B). Here, the IJ’s January 31, 2000,

decision was an “order of deportation,” but it was not

4598 ALALI-AMIN v. MUKASEY
appealed by petitioner; thus, the order became “final” upon

the expiration of the ninety-day time period in which petitioner had to seek review of the order, which was well before

the date petitioner filed his motion in 2005. 

[3] Thus, consistent with 8 U.S.C. § 1101(a)(47), the IJ correctly concluded that petitioner’s motion to reopen proceedings was subject to the time limitations set forth in 8 C.F.R.

§ 1003.23(b)(1). Applying those time limitations, the IJ correctly concluded that petitioner’s motion was untimely. The

Board correctly affirmed the IJ’s decision. 

PETITION FOR REVIEW DENIED.

ALALI-AMIN v. MUKASEY 4599