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Demirchyan v. Holder, 06-73326 (2011)

Court: Court of Appeals for the Ninth Circuit Number: 06-73326 Visitors: 18
Filed: Apr. 19, 2011
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ARUTYUN DEMIRCHYAN, No. 06-73326 Petitioner, Agency No. v. A028-234-622 ERIC H. HOLDER JR. Attorney D.C. No. General, 2:08-cv-03452 Respondent. SVW-MAN ORDER Filed April 19, 2011 Before: John T. Noonan, William A. Fletcher, and Ronald M. Gould, Circuit Judges. ORDER The government moves to dismiss Arutyun Demirchyan’s case for lack of jurisdiction based on his failure to file a notice of appeal from an order entered by th
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                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ARUTYUN DEMIRCHYAN,                           No. 06-73326
                           Petitioner,          Agency No.
                  v.                           A028-234-622
ERIC H. HOLDER    JR. Attorney                   D.C. No.
General,                                       2:08-cv-03452
                         Respondent.            SVW-MAN

                                                  ORDER

                      Filed April 19, 2011

      Before: John T. Noonan, William A. Fletcher, and
              Ronald M. Gould, Circuit Judges.


                            ORDER

  The government moves to dismiss Arutyun Demirchyan’s
case for lack of jurisdiction based on his failure to file a notice
of appeal from an order entered by the district court. The
motion is denied.

   On May 15, 2008, we issued an order transferring Demir-
chyan’s case to the district court “for a de novo review of
Demirchyan’s citizenship claim” pursuant to 8 U.S.C.
§ 1252(b)(5)(B), which provides that:

    If the petitioner claims to be a national of the United
    States and the court of appeals finds that a genuine
    issue of material fact about the petitioner’s national-
    ity is presented, the court shall transfer the proceed-
    ing to the district court of the United States for the

                               6083
6084                DEMIRCHYAN v. HOLDER
    judicial district in which the petitioner resides for a
    new hearing on the nationality claim and a decision
    on that claim as if an action had been brought under
    section 2201 of title 28.

Our order directed that Demirchyan’s petition for review be
held in abeyance pending the district court’s citizenship deter-
mination.

   On September 15, 2010, the district court entered judgment
concluding that Demirchyan “is not a U.S. citizen pursuant to
8 U.S.C. § 1432(a)” and returning the case “to the Ninth Cir-
cuit for further proceedings.” See Demirchyan v. Gonzales,
No. 08-3452, 
2010 WL 3521784
, *18-19 (C.D. Cal. Sept. 8,
2010). On December 21, 2010, we issued an order granting
the government’s motion to lift the order holding Demirch-
yan’s case in abeyance.

   The government argues that because a notice of appeal is
required for this court to review a judgment in a 28 U.S.C.
§ 2201 action brought in the district court, a notice of appeal
is required for the court to review a judgment entered pursu-
ant to a transfer under 8 U.S.C. § 1252(b)(5)(B). The govern-
ment’s argument mistakenly assumes that in transferring
Demirchyan’s citizenship claim to the district court, the court
of appeals relinquished jurisdiction. In Campbell v. Blodgett,
998 F.2d 763
(9th Cir. 1993) (en banc), we held that findings
of fact and conclusions of law entered by the district court
pursuant to a limited remand are not separately appealable. 
Id. at 763.
For the present purpose, we see no meaningful distinc-
tion between transfer under 8 U.S.C. § 1252(b)(5)(B) and lim-
ited remand. Demirchyan was not required to file a notice of
appeal to obtain review of the district court’s citizenship
determination.

  No later than 40 days after the date of this order, Demir-
chyan shall move for voluntary dismissal or show cause why
we should not adopt the district court’s findings and conclu-
                   DEMIRCHYAN v. HOLDER                 6085
sions and deny the petition for review. If Demirchyan elects
to show cause, a response may be filed within 10 days after
service of Demirchyan’s memorandum. Any motions to sup-
plement the record shall be filed no later than 20 days after
the date of this order.

Source:  CourtListener

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