CHIN KAK JOO, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
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This court lacks jurisdiction to review the deportation order because the petitioner failed to exhaust administrative remedies by departing the United States before his appeal.
Petitioner was issued an Order To Show Cause for unpermitted employment and was subject to deportation. Before his hearing, he departed the U.S., and …
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PER CURIAM:
In May of 1983, the INS issued an Order To Show Cause to C.K. Joo alleging that he had been employed in an unpermitted job and was therefore subject to deportation. Before his deportation hearing on September 15, 1983, Joo departed the United States. The immigration judge conducted the hearing in his absence and issued an order of deportation and a denial of voluntary departure. Joo filed a timely appeal to the BIA, and the BIA decided that it had no jurisdiction over the appeal because of his departure from the country prior to his appeal. Joo now petitions this court for review of the immigration judge’s action and the BIA’s decision. This court lacks jurisdiction to review Joo’s case because of his failure to exhaust his administrative remedies.
The applicable portion of 8 C.F.R. sec. 3.3(a) (1986) states: “Departure from the United States of a person under deportation proceedings prior to the taking of an appeal from a decision in his case shall constitute a waiver of his right to appeal.” A waiver of the right to appeal is a failure to exhaust administrative remedies. Hernandez-Almanza v. INS, 547 F. 2d 100, 103 (9th Cir.1976); see also Kladis v. INS, 343 F. 2d 513, 515 (7th Cir.1965). The failure to exhaust administrative remedies deprives this court of jurisdiction to review the order of deportation. 8 U.S.C. sec. 1105a(c).
In summary, the BIA correctly decided that it lacked jurisdiction over the appeal, and this court also lacks jurisdiction to review Joo’s case. The petition for review is DENIED.
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Cited By
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Molaire v. Smith, 743 F. Supp. 839 (S.D. Fla. 1990)…administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. This statutory exhaustion requirement is jurisdictional. Joo v. INS, 813 F.2d 211 (9th Cir.1987) (“The failure to exhaust administrative remedies deprives this court of jurisdiction to review the order of deportation.”); Garcia-Mir v. Smith, 766 F.2d 1478, 1489 (11th Cir.1985), cert. denied sub nom., Marquez-Medina v. Me…
Authorities Cited
- Panagiotis Kladis v. Immigr. & Naturalization Serv., 343 F.2d 513 (7th Cir. 1965)
- Hernandez-Almanza v. United States Dep't of Just., 547 F.2d 100 (9th Cir. 1976)