* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________

No. 99-60118

Summary Calendar

_________________

JOSE PAEZ-KELLY; JUAN ANTONIO PAEZ-KELLY,

Petitioners,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA Nos. A29-493-610; A29-493-609

March 6, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Paez-Kelly and Juan Antonio Paez-Kelly (the “Paezes”) have filed a petition for review

of a Bureau of Immigration (BIA) order of exclusion. The Immigration and Naturalization Service

(INS) has moved to dismiss the case for lack of jurisdiction. For the reasons set forth below, we

grant the government’s motion and dismiss the Paezes’ petition for lack of jurisdiction.

The Paezes are citizens of Panama. On February 11, 1993, an Immigration Judge (“IJ”)

granted their request for political asylum in the United States. The INS appealed the IJ’s decision

to the BIA, and on November 30, 1998, the BIA issued a final order of exclusion which reversed the

IJ’s decision. The Paezes filed this petition for review of the BIA order on February 24, 1999, just

shy of ninety days after the BIA rendered its decision. 

On appeal, the INS argues that the Paezes’ petition for review should be dismissed as
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untimely because it was filed more than thirty days after the final BIA order. The Paezes’ contend

that their petition wastimely. The timeliness of the Paezes’ petition depends upon whether this case

is governed bythe IllegalImmigrationReformand Immigrant ResponsibilityAct of 1996 (“IIRIRA”),

the pre-IIRIRA rules, or the “transitional rules” which the IIRIRA makes applicable to certain cases

that were pending before its enactment date but decided afterwards. See Lerma de Garcia v. INS,

141 F.3d 215, 216 (5th Cir. 1998).

IIRIRA changed the period in which a petitioner could seek judicial review of a final order

of deportation from ninety daysto thirty days. Compare 8 U.S.C. § 1252(b)(1) (deadline forseeking

judicial review 30 days from final order of deportation) with 8 U.S.C. § 1105(a)(1) (repealed 1996)

(deadline for seeking judicial review was 90 days from final BIA order). Under § 309(c)(1) of

IIRIRA, the new IIRIRA provisions do not apply to aliens who were “in exclusion or deportation

proceedings” as of April 1, 1997. IIRIRA § 309(c)(4), however, provides that certain specificallyenumerated transitional rules are applicable to pending cases when the case (1) was in proceedings

prior to April 1, 1997, but (2) the final order of exclusion or deportation was entered more than 30

days after the September 30, 1996 enactment of IIRIRA. Among the amendments applicable to such

pending casesis § 309(c)(4)(C), which requiresthat “the petition for judicialreview must be filed not

later than thirty days after the date of the final order of exclusion or deportation.” IIRIRA §

309(c)(4)(C).

This case appears to fall squarely within § 309(c)(4). It is uncontested that the case was

pending prior to April 1, 1997; the BIA’s final order issued on November 30, 1998, more than thirty

days after the enactment date. Accordingly, under the explicit language of § 309(c)(4), the thirty-day

deadline for filing a petition for review, required by § 309(c)(4)(C), applies to this case. See

Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (5th Cir. 1999); Lerma de Garcia v. INS, 141 F.3d

215, 216 (5th Cir. 1998) (stating that IIRIRA’s provisional standards apply to deportees “whose

deportation proceedings commence before IIRIRA’s general effective date of April 1, 1997, and

conclude more than thirty days after its passage on September 30, 1996”).
 

1 Even if we were to find that under Ibrik, the transitionalrules apply only to cases that became

final during a narrow window of time which concluded on April 1, 1997, Ibrik does not provide that

after the close of this “window,” cases should be governed by the pre-IIRIRA rules. The Paezes fail

to cite any case supporting such a proposition. If anything, Ibrik implies that when the transitional

rules were no longer applicable, the new IIRIRA rules would take effect. As noted above, the

Paezes’ petition would be untimely under the thirty-day filing deadline set forth in the permanent

IIRIRA rules.

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Relying upon language in Ibrik v. INS, 108 F.3d 596, 597 (5th Cir. 1997), the Paezes reason

that a case that was proceeding before IIRIRA’s effective date but which had a final order issued after

April 1, 1997 is not governed by § 309(c)(4) but rather by § 309(c)(1), which requires that preIIRIRA law be applied. This contention is unpersuasive. In Ibrik, we determined that the

transitionalrules applied to a case in which the BIA’sfinalorder issued in November 1996. See Ibrik,

108 F.3d at 596-97. In doing so, we stated that § 309(c)(4)(C) “creates an exception to section

309(c)(1) for appealsfromfinalorders of exclusion or deportation entered betweenOctober 31, 1996

and April 1, 1997.” However, in Ibrik, we were not faced with—and therefore did not consider—the

question of which rules apply to an alien whose final order was issued after April 1, 1997. The

Paezes incorrectly extract such a broad principle from that case. Rather, the clear language of §

309(c)(1) and our later cases hold that the transitionalrules do in fact govern cases in which the final

BIA decision was issued after April 1, 1997, as long as the case was pending on that date. See, e.g.,

Requena-Rodriguez, 190 F.3d at 302-03 (finding that a case that commenced prior to enactment of

IIRIRA but inwhich final judgment was entered in August 1997 “fellsquarely” within the transitional

rules).1

Accordingly, we find that IIRIRA’stransitionalrules, including the thirty-day period in which

to file a petition for judicial review under § 309(c)(4)(C), apply to this case. Consequently, the

Paezes’ petition for review, filed more than eighty days after the BIA rendered its final order, is

untimely. A timely petition for review is a jurisdictional requirement, and the lack thereof deprives

this court of jurisdiction to review the decision of the BIA. See Karimian-Kaklaki v. INS, 997 F.2d

108, 111 (5th Cir. 1993).

For the reasons set forth above, the government’s motion to dismiss is GRANTED, and the
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petition is DISMISSED for lack of jurisdiction.