Kon v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAI KI KON, 
Petitioner, No. 03-71121
v.
 Agency No.
A71-651-400
ALBERTO GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 7, 2005—Pasadena, California
Filed March 18, 2005
Before: Warren J. Ferguson, John T. Noonan, and
Michael Daly Hawkins, Circuit Judges.
Per Curiam Opinion
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
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3362 KON v. GONZALES
COUNSEL
David Gardner (argued) and Louis A. Gordon (briefed), Law
Offices of David Gardner, Los Angeles, California, for the
petitioner-appellant.
KON v. GONZALES 3363
Paul Fiorino (argued) and Hillel R. Smith (briefed), Office of
Immigration Litigation, U.S. Department of Justice, Washing-
ton, D.C., for the respondent-appellee.
OPINION
PER CURIAM:
Kai Ki Kon (“Kon”), a native and citizen of Hong Kong,
petitions for review of the Board of Immigration Appeals’
(“BIA’s”) decision summarily affirming an immigration
judge’s denial of asylum and withholding of removal. As an
initial matter, we must decide whether Kon’s voluntary depar-
ture from the United States deprives this Court of jurisdiction.
We find that it does and, accordingly, dismiss Kon’s claims
for lack of jurisdiction.
[1] The Illegal Immigration Reform and Immigrant
Responsibility Act’s (“IIRIRA”) transitional rules apply in
cases where deportation or exclusion proceedings commenced
before April 1, 1997, and the final deportation or exclusion
order was issued after October 20, 1996. See Kalon v. INS,
133 F.3d 1147, 1150 (9th Cir. 1997). The Government issued
a charging document on January 23, 1997 alleging that Kon
was excludable from the United States, and the BIA issued its
final order on October 8, 1997. Thus, the IIRIRA’s transi-
tional rules apply here.
[2] The IIRIRA’s transitional rules incorporate 8 U.S.C.
§ 1105a(c), which provided in relevant part:
An order of deportation or of exclusion shall not be
reviewed by any court if the alien has not exhausted
the 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.
3364 KON v. GONZALES
8 U.S.C. § 1105a(c) (emphasis added).
[3] Because Kon voluntarily departed the United States to
Hong Kong after issuance of the exclusion order, we lack
jurisdiction to entertain his petition for review under the plain
reading of the statute. See Thorsteinsson v. INS, 724 F.2d
1365, 1367 (9th Cir. 1984) (interpreting the jurisdictional lim-
its of 8 U.S.C. § 1105a(c)); Hose v. INS, 180 F.3d 992, 996
(9th Cir. 1999) (noting that 8 U.S.C. § 1105a(c) strips our
jurisdiction over an alien’s petition for review once the alien
leaves the United States).
DISMISSED FOR LACK OF JURISDICTION.