                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 23 2000
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 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 Immigration Appeals’

denial of Mr. Shirkhani’s motion to reopen deportation proceedings, Mr.

Shirkhani left the United States. As a result, we lack jurisdiction to consider his

petition for review. It is, therefore, dismissed.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                  I. BACKGROUND

         Mr. Shahin Shirkhani, a citizen of Iran, entered the 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 Naturalization 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 conclusion of the proceedings and

administrative appeals, the Board of Immigration Appeals (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 that decision to this Court and was

granted a stay of deportation proceedings, which was 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 Deportation Proceedings).

         Thereafter, the District Director of the INS granted an administrative stay

to allow Mr. Shirkhani the opportunity to seek permanent residence in the

Phillippines and pursue his application for relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment


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or Punishment, June 26, 1987, S. Treaty Doc. No. 100-20 (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 January 19, 2000, and we ordered

additional briefing on the issues of mootness and jurisdiction.



 II. JURISDICTION AFTER DEPARTURE FROM THE UNITED STATES

      Mr. Shirkhani’s deportation proceedings commenced prior to April 1, 1997,

and his final order of deportation was issued after October 30, 1996.

Accordingly, as both parties have acknowledged, jurisdiction 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 Act of 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 set 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


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reviewed by any court if the alien . . . has departed 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 review the order. Because we lack

jurisdiction, we DISMISS Mr. Shirkhani’s           petition for review.

                                                    Entered for the Court,



                                                    Robert H. Henry
                                                    Circuit Judge




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