UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OSCAR FEDERICO INFANZON,

Petitioner-Appellant,

v.

MICHAEL COMFORT, Acting District Director, Immigration and Naturalization Service, Denver District, Executive Office for Immigration Review,

Respondent-Appellee.

No. 04-1395

(District of Colorado)

(D.C. No. 03-M-102)

ORDER AND JUDGMENT*

Before BRISCOE, LUCERO and MURPHY, Circuit Judges.

After examining the briefs and the appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, the case is ordered submitted without oral argument.

Appellant, Oscar Infanzon filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Colorado. In the application, Infanzon asked the district court to stay his removal to Peru until he could pursue a motion to reopen his removal proceedings with the Board of Immigration Appeals ("BIA"). The district court granted Infanzon the relief he sought. Infanzon filed his Motion to Reopen with the BIA on January 24, 2003 and the BIA denied the motion on May 29, 2003. Infanzon filed a petition for review in this court together with a motion seeking a stay of removal while his petition was pending. We denied the motion seeking a stay of removal on October 29, 2003.1

On September 21, 2004, the district court vacated its stay of removal and dismissed Infanzon's § 2241 petition on the ground that this court had exclusive jurisdiction. Infanzon filed this appeal. Because we agree with the district court that it lacked jurisdiction to grant or deny Infanzon a stay of removal while his

petition for review was pending in this court, we affirm the district court's order dismissing Infanzon's § 2241 petition.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge