139 F. 3d 903 - Asgari v. Immigration and Naturalization Service

ORDER*

Respondent's petition for rehearing is GRANTED. The memorandum disposition filed on December 14, 1995, is hereby WITHDRAWN.

At the time the Anti-Terrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214, became effective in April, 1996, this case was still pending in this court, due to the Respondent's timely petition for rehearing. The mandate has not issued, so the decision has not become final.

The outcome of this case is therefore controlled by Elramly v. INS, 116 F.3d 435, amended, slip op. 14523 (9th Cir. Dec. 15, 1997). At the time the AEDPA was passed, the Elramly case was pending on the Government's petition for writ of certiorari to the Supreme Court. The Court vacated our decision and remanded for reconsideration in light of the provisions of the AEDPA. We held that the case was not final since no final judgment had been entered. Therefore, the amendments to 8 U.S.C. § 1105(a)(10) deprived us of jurisdiction to hear Elramly's appeal. Id. at 436.

Asgari, like Elramly, has been convicted of a controlled substance violation and the AEDPA applies to his appeal, which was still pending in this court on the effective date of the AEDPA. Therefore, we lack jurisdiction over Asgari's petition for review of the BIA decision.

Petition for review DISMISSED for lack of jurisdiction.