                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                     UNITED STATES COURT OF APPEALS June 3, 2009
                                                              Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT               Clerk of Court



    ABDELFATAH AIT AMMI, a/k/a
    Abdelfa Aitammi,

                Petitioner,
                                                         No. 09-9524
    v.                                               (Petition for Review)

    ERIC H. HOLDER, JR., United States
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before TACHA, EBEL, and MURPHY, Circuit Judges.



         Abdelfatah Ait Ammi, a citizen of Morocco, has filed a petition for review

and a motion to stay his removal from the United States. An Immigration Judge

(IJ) entered an order of removal and ordered his detention in the custody of the

Department of Homeland Security. The Board of Immigration Appeals (BIA)



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
denied his appeal of the IJ’s custody decision on April 14, 2009. His appeal of

the removal order remains pending before the BIA.

      This court’s jurisdiction is “grounded in statute.” Bender v. Clark,

744 F.2d 1424, 1426 (10th Cir. 1984). Jurisdiction to review removal

proceedings arises under a specific statutory grant in the Immigration and

Nationality Act, 8 U.S.C. § 1252(a)(1). See Hamilton v. Gonzales, 485 F.3d 564,

565 (10th Cir. 2007). Section 1252(a)(1) “establishes judicial review of a final

order of removal.” Id. (alteration and quotation omitted). “We construe

§ 1252(a)(1) narrowly and have consistently found we lack jurisdiction to review

immigration decisions that fall short of a final removal order.” Id. at 566.

      “An order of removal becomes final when the BIA either (1) affirms an

immigration judge’s removal decision, or (2) when the time for appealing that

decision has expired.” Id. at 565-66. Mr. Ammi’s case satisfies neither of these

requirements. As a consequence, we have no jurisdiction to review the removal

order entered by the IJ.

      We also lack jurisdiction to review the agency’s decision to detain

Mr. Ammi without bond. Under some circumstances, an alien may challenge his

detention in district court in a 28 U.S.C. § 2241 habeas action. Ochieng v.

Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008). But “[t]his court is not the

appropriate forum to raise such a challenge in the first instance.” Id.




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      The petition for review is DISMISSED for lack of jurisdiction. “We

express no opinion on the merits of any § 2241 petition [Mr. Ammi] may file.”

Id. Further, a prerequisite for consideration of a motion for stay pending appeal

is appellate jurisdiction over the underlying appeal. See Desktop Direct, Inc. v.

Digital Equip. Corp., 993 F.2d 755, 756-57 (10th Cir. 1993). Mr. Ammi’s motion

for a stay is DENIED and his motion for leave to proceed in forma pauperis is

GRANTED.

                                               Entered for the Court

                                               Per Curiam




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