Lucacela v. Reno

• Decision Date: 23 November 1998
• Docket Number: No. 98-3251,98-3251
• Citation: 161 F.3d 1055
• Parties: Ana LUCACELA, Petitioner, v. Janet RENO, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1055

161 F.3d 1055

Ana LUCACELA, Petitioner, v. Janet RENO, United States Attorney General, Respondent.

No. 98-3251.

United States Court of Appeals Seventh Circuit.

Submitted Oct. 29, 1998.

Decided Nov. 23, 1998. ^*

Raymond J. Sanders (submitted), Chicago, IL, for Petitioner.

Janet Reno, Office of the United States Attorney General (submitted), Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Kristal A. Marlow, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

This matter is presently before the court on the petitioner's Emergency Motion to Stay Deportation. On October 30, 1998, a temporary stay of deportation was granted pending resolution of this motion, and the INS was ordered to respond to the motion by November 9, 1998. The INS filed its response on November 6, 1998. For the reasons set forth in this opinion, we deny the motion for an emergency stay.

BACKGROUND

On October 29, 1998, Ms. Lucacela filed an emergency motion for a stay of deportation pending consideration of her petition for review of a Board of Immigration Appeals ("BIA") decision denying her motion to reconsider and reopen her application for asylum and withholding of deportation. Ms. Lucacela is a native and citizen of Romania who entered the United States in June of 1993. Deportation proceedings were initiated against Ms. Lucacela in July 1994. Consequently, Ms. Lucacela sought asylum and withholding of deportation on the basis that she is an anti-Communist Catholic of Croatian descent who feared persecution if she returned to Romania because of her opinions, her brothers' actions, and the fact that she had been absent from Romania for several years. After a hearing on October 11, 1995, an Immigration Judge ("IJ") found Ms. Lucacela deportable and denied her application for asylum and withholding of deportation.

Ms. Lucacela appealed the IJ's decision, but on May 27, 1997, the BIA upheld that determination. The BIA found that neither the questioning of Ms. Lucacela by Romanian authorities following her brothers' departure from the country nor the inability to express freely her opinions demonstrated past persecution. Additionally, the BIA found that Ms. Lucacela failed to establish a well-founded fear of future persecution. In light of her "vague assertions" of negative consequences she expected to experience if she returned to Romania, and her failure to produce any evidence regarding persecution suffered in post-Ceaucescu Romania, the BIA concluded that "although [Ms. Lucacela] may have a sincere mistrust of the Romanian government, her unsupported assertions are unpersuasive ... and insufficient to establish her status as a refugee." BIA Order of May 27, 1997, at 2. Moreover, the BIA noted that even if Ms. Lucacela had established past persecution, because "substantial changes have taken place [in Romania] since [Ms. Lucacela's] departure," namely the overthrow of the communist regime, a well-founded fear of future persecution would be rebuttable. Id. at 3. Consequently, the BIA dismissed Ms. Lucacela's appeal.

Ms. Lucacela did not file a petition for review from that order. Instead, Ms. Lucacela's previous counsel apparently attempted to file a motion to reopen the proceedings, which the BIA rejected for filing defects on August 20, 1997. Eventually, Ms. Lucacela obtained new counsel and filed another motion to reconsider and reopen before the BIA in May 1998, claiming that her prior attorney had failed to present all relevant facts to support her persecution claim. Furthermore, Ms. Lucacela alleged, she had never received a copy of the BIA's May 1997 decision. Thus, Ms. Lucacela, by her new counsel, sought to reopen the deportation proceedings one year after issuance of the BIA's final deportation order.

The BIA, however, denied Ms. Lucacela's motion as untimely. Because the BIA's previous order had been entered on May 27, 1997, and their records showed proper service of that order upon Ms. Lucacela's counsel, pursuant to 8 C.F.R. § 3.2(c)(2), the motion to reopen had to be filed within 90 days of the BIA's final decision, or September 30, 1996, whichever was later. Thus, Ms. Lucacela's motion was due by August 25, 1997. Because it was not filed until May 4, 1998, and none of the statutory exceptions applied, the BIA found the motion to reopen was filed out of time. Furthermore, even if the BIA construed the motion as a motion to reconsider, it would still be untimely, because 8 C.F.R. § 3.2(b)(2) requires that filing be made within 30 days of the BIA's final decision.

On September 8, 1998, Ms. Lucacela filed a timely Petition for Review of the BIA's August 6, 1998 decision with this court. Nevertheless, on October 19, 1998, the INS issued a letter ordering Ms. Lucacela to report for deportation on November 3, 1998. Consequently, on October 29, 1998, Ms. Lucacela, by her counsel, filed an emergency motion to stay deportation pending appeal. In that motion, Ms. Lucacela raises numerous constitutional grounds in support of granting a stay, but primarily contends that it would be a denial of her due process rights if she were deported before she had exhausted her remedy of appeal to this court. In addition, Ms. Lucacela asserts that she would suffer irreparable harm if deported because of the persecution she fears in Romania. Ms. Lucacela contends that the harm is so great and affects the public interest to such an extent that "every asylum applicant should be granted a stay of removal pending appeal." Motion at 5. Finally, Ms. Lucacela asserts that she has a substantial likelihood of prevailing on the merits of her appeal. However, she does not identify the relevant issues, or explain why she is likely to prevail.

Pursuant to this court's order of October 30, 1998, the INS filed a response in opposition to Ms. Lucacela's motion. First, the INS contends that asylum applicants do not have a constitutional right to judicial review of adverse decisions, or an automatic right to a stay of deportation. Furthermore, the INS asserts that Ms. Lucacela failed to make a showing of a likelihood of success on the merits in light of the jurisdictional time limits in 8 C.F.R. § 3.2. Additionally, the INS points to Congress' 1996 amendment to the immigration laws which expressly revokes the right to an automatic stay of deportation upon service of a petition for review, as well as its expressed policy of removing illegal aliens from the United States as soon as possible, as further evidence that there is no need to grant a stay.

ANALYSIS

A.

On September 30, 1996, Congress made sweeping changes to the Immigration and Nationality Act ("INA") by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, 110 Stat. 3009 (1996). Section 309(c)(1) of IIRIRA provides that these amendments to the judicial review process shall not apply to exclusion or deportation proceedings pending as of the title III-A effective date. Because deportation proceedings were initiated against Ms. Lucacela in 1994, prior to the enactment of IIRIRA, a reading of this section in isolation might lead to the conclusion that these amendments do not affect her case. However, § 309(c)(1) contains a caveat--"subject to the succeeding provisions of this subsection." Section 304(c)(4), then, explains that "[i]n the case described in paragraph (1) in which a final order of exclusion or deportation is entered more than 30 days after the date of the enactment of this Act, notwithstanding any provision of section 106 of the [INA] (as in effect as of the date of the enactment of this Act) to the contrary," certain transitional rules apply. Because the Board's final order of deportation was entered on August 6, 1998, more than 30 days after the enactment of IIRIRA, the transitional rules govern this court's review of Ms. Lucacela. ¹

Whether IIRIRA applies is significant in determining whether a stay of deportation pending review is automatic or discretionary. Prior to the enactment of IIRIRA (and thus at the time deportation proceedings were initiated against Ms. Lucacela), section 106(a)(3) of the INA provided for an automatic stay of deportation pending review of the petition unless the court otherwise directs. See 8 U.S.C. § 1105a(a)(3) (1994), repealed by IIRIRA. However, under the transitional rules, § 309(c)(4)(F) of IIRIRA now provides that "service of the petition for review shall not stay the deportation of an alien pending the court's decision on the petition, unless the court orders otherwise" (emphasis added). Thus, it appears that Ms. Lucacela is not entitled to an automatic stay of deportation, simply by virtue of filing a petition for review, but rather it is within the discretion of this court.

Notwithstanding the IIRIRA amendments, Ms. Lucacela argues that denying an automatic stay pending review to asylum applicants such as herself violates their...