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United States Court of Appeals,Ninth Circuit.


No. 97-70882.

Decided: June 07, 1999

Before:  PREGERSON, WIGGINS, and BRUNETTI, Circuit Judges. Rhoda Wilkinson Domingo, San Francisco, California, for petitioner. Donald Keener and Joseph F. Ciolino, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent.


Mohammed Riad Altawil (“Petitioner”) moves this court (1) to reconsider its order, filed December 12, 1997, striking the Petitioner's Supplemental Excerpt of Record (“Supplemental Excerpt”), or in the alternative (2) for Leave to Adduce Additional Evidence and to Remand to the Board of Immigration Appeals (the “Board”).

The Immigration and Naturalization Service (“Respondent”) has requested the court to consider Petitioner's motion to be a request, pursuant to Rule 16(b) of the Federal Rules of Appellate Procedure, to supply an omission from the record.   Respondent has stipulated to the addition of the transcript to the administrative record.   Respondent opposes the motion as to all other documents included in the Excerpt of Record.

In light of this stipulation, we deem Petitioner's motion to be a request to supply an omission from the record pursuant to Rule 16(b).   We hereby grant that request, solely as to the hearing transcript, and will consider the hearing transcript to be a supplemental record for purposes of the petition.

 Under 8 U.S.C. § 1105a(a)(4), the petition must “be determined solely upon the administrative record upon which the deportation order is based.” (emphasis added).   The documents contained in the Supplemental Excerpt were not part of the administrative record upon which Petitioner's deportation order was based.   We therefore deny his motion to reconsider the motion panel's order.

 Petitioner moves this court, alternatively, for leave to adduce additional evidence and requests a remand to the Board.   This request is premised upon out-of-circuit authority applying 28 U.S.C. § 2347(c).   Under Section 309(c)(4)(B) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, in the case of an alien in deportation proceedings in which a final order of deportation was entered on or after October 31, 1996, “a court may not order the taking of additional evidence under section 2347(c) of title 28, United States Code.” Pub.L. 104-208, Division C, Title III § 309(c)(4)(B), 110 Stat. 3009.   The final order of deportation in Petitioner's case was issued after October 31, 1996.   We therefore deny Petitioner's request for leave to adduce additional evidence and remand to the Board because we cannot order the taking of additional evidence by the Board under 28 U.S.C. 2347(c).

The motion is granted in part and denied in part.