                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 10 2001
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    LAGRIMAS R. DE GUZMAN,

                Petitioner,

    v.                                                   No. 00-9526
                                                      (No. A 26 607 207)
    IMMIGRATION &                                    (Petition for Review)
    NATURALIZATION SERVICE,

                Respondent.


                              ORDER AND JUDGMENT          *




Before SEYMOUR and McKAY , Circuit Judges, and           BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Petitioner Lagrimas R. De Guzman seeks review of a final deportation

order of the Board of Immigration Appeals (BIA). On appeal, she raises two

principal legal issues. First, she challenges the BIA’s application of the “stop-

time rule” contained in section 309(c)(5) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA)    1
                                                     to her case. Second, she

contends that she is nonetheless eligible for suspension of deportation due to

seven years’ continuous physical presence in the United States following the

order to show cause that triggered her deportation proceedings.

      Respondent contends that the latter issue was not preserved for review

because petitioner did not raise the issue before the BIA. Petitioner contends that

she raised the issue in a motion to reconsider filed with the BIA on the same date

she filed her petition for review with this court. The BIA has since denied the

motion for reconsideration in an order dated December 8, 2000. We agree with

petitioner that she raised this issue before the agency in her motion to reconsider.

Nonetheless, we conclude that we lack jurisdiction to review the issue because

petitioner failed to file a petition for review from the BIA’s disposition of that



1
        The IIRIRA significantly limited judicial review of agency immigration
decisions. Because petitioner was issued a show cause order before April 1,
1997, and because the BIA’s deportation order was entered more than thirty days
after September 30, 1996, the so-called “transitional rules” of the IIRIRA apply
to petitioner’s case. See Rivera-Jimenez v. INS , 214 F.3d 1213, 1216 n.5
(10th Cir. 2000).

                                         -2-
motion. Timely filing of a petition for review is a mandatory prerequisite to

this court’s exercise of jurisdiction.     Haroutunian v. INS , 87 F.3d 374, 375

(9th Cir. 1996).

       In Stone v. INS , 514 U.S. 386 (1995), the Supreme Court held that pending

motions for reconsideration do not toll the finality of a BIA deportation order.       Id.

at 405. In so holding, it also stated that motions for reconsideration are separate,

final agency orders, and indicated that the proper procedure for appealing both

a deportation order and a subsequent denial of a motion for reconsideration is to

file two separate petitions for review which may be consolidated for review.

See id. at 395 (“Upon denial of reconsideration, the petitioner would file

a separate petition to review that second final order.”). Because petitioner here

did not file a petition for review within the prescribed time    2
                                                                     after the BIA’s

disposition of her motion for reconsideration, we cannot review her arguments

on an issue raised before the agency for the first time in that motion.

       Petitioner did file a timely petition for review from the BIA’s deportation

order; therefore, we have jurisdiction to review the single remaining issue

pursuant to 8 U.S.C. § 1105a(a).         See Lockett v. INS , 245 F.3d 1126, 1128




2
      The prescribed time is now thirty days under the transitional rules of the
IIRIRA. Cruz-Navarro v. INS , 232 F.3d 1024, 1026 n.2 (9th Cir. 2000).

                                               -3-
(10th Cir. 2001).   3
                        Our review of petitioner’s legal argument is     de novo ; however,

we “accord deference to the BIA’s legal determinations unless they are clearly

contrary to the statute’s language or to congressional intent.”        Id. (quotation

omitted). Petitioner argues that application of the stop-time rule to her case is

unconstitutional because it is impermissibly retroactive. We agree with

respondent that this argument is disposed of by         Rivera-Jimenez v. INS , 214 F.3d

1213, 1217 (10th Cir. 2000), and reject it without further discussion.        4
                                                                                  The

petition for review is DENIED.


                                                           Entered for the Court



                                                           Stephanie K. Seymour
                                                           Circuit Judge




3
      Section 1105a was repealed by IIRIRA. However, the repeal is effective
only as to final orders filed on or after September 30, 1996.
4
       Respondent filed a motion for summary affirmance on this issue in light of
our decision in Rivera-Jimenez . However, our rules preclude such a motion and
therefore it is denied. See 10th Cir. R. 27.2 (A)(1). Petitioner, in response to this
motion, requests that we “have an en banc court reconsider”   Rivera-Jimenez .
This statement does not comport with federal requirements for a request for
en banc consideration, see Fed. R. App. P. 35(b). Further, we deny the request
for initial en banc consideration because petitioner’s statement does not
demonstrate “an issue of exceptional public importance” or implicate “a panel
decision that conflicts with a decision of the United States Supreme Court or
of this court.” 10th Cir. R. 35.1(A).

                                               -4-
