Asai v. Castillo, s. 78-1781

• Decision Date: 16 November 1978
• Docket Number: 78-1843,Nos. 78-1781,s. 78-1781
• Citation: 193 U.S.App.D.C. 68,593 F.2d 1222
• Parties: Keiko ASAI et al., Appellants, v. Leonel J. CASTILLO, Commissioner, Immigration & Naturalization Service. Keiko ASAI et al., Petitioners, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1222

593 F.2d 1222

193 U.S.App.D.C. 68

Keiko ASAI et al., Appellants, v. Leonel J. CASTILLO, Commissioner, Immigration &

Naturalization Service.

Keiko ASAI et al., Petitioners, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

Nos. 78-1781, 78-1843.

United States Court of Appeals, District of Columbia Circuit.

Nov. 16, 1978.

On Motion for Costs and Attorney's Fees Feb. 13, 1979.

On Motions for Costs and Attorney's Fees

Lauren S. Kahn, Atty., Dept. of Justice, Washington, D.C., was on the motion of appellee in No. 78-1781 and respondent in No. 78-1843 to dismiss as to certain petitioners-appellants.

Also John E. Harris, Washington, D.C., Department of Justice, entered an appearance for appellee in No. 78-1781 and respondent in No. 78-1843.

David Carliner, Atty., Washington, D.C., was on the memorandum of appellants in No. 78-1781 and petitioners in No. 78-1843, regarding motion to dismiss as to certain petitioners-appellants.

Before BAZELON, Circuit Judge, FAHY, Senior Circuit Judge, and ROBB, Circuit Judge.

Opinion PER CURIAM.

PER CURIAM:

No. 78-1781 of the above two consolidated cases is an appeal from a judgment of the District Court denying appellants' petition for a writ of habeas corpus. Their petition was filed in the District Court subsequent to the decision of this court in Unification Church v. Attorney General of United States, 189 U.S.App.D.C. 92, 581 F.2d 870, Cert. denied, --- U.S. ----, 99 S.Ct. 102, 58 L.Ed.2d 122 (1978), which affirmed an order of the Attorney General requiring the deportation of appellants (petitioners therein). That order of deportation being still in effect, and no stay of deportation being in effect after 4 p. m. on September 20, 1978, appellee moved to dismiss as moot the appeal of certain appellants named in the motion who had been deported after expiration of the stay. Appellee had previously moved for costs and attorneys fees.

Appellee's motion to dismiss as to certain appellants is unopposed and is granted by this court. ¹ As to the other appellants, as to whom the appeal is not dismissed as moot, the judgment of the District Court denying the writ of habeas corpus is affirmed for the reasons set forth below regarding denial of the petition for review in No. 78-1843.

No. 78-1843 is a petition for review of an order of the Board of Immigration Appeals denying petitioners' motions to reopen their deportation proceedings to enable them to seek permission voluntarily to depart from the United States. Petitioners in this case were the appellants in No. 78-1781, and their petition for review was likewise filed after this court's decision in Unification Church, supra. The Attorney General opposes the petition on the merits and also moves for costs and attorneys fees.

The petition for review in No. 78-1843 raises the question whether the Board of Immigration Appeals abused its discretion in denying petitioners' motions to reopen the deportation proceedings. Having been well advised by the parties as to their respective positions with respect thereto, the court reaches the merits for decision and finds that the petition for review should be denied. ² Petitioners failed to avail themselves of several grants of permission voluntarily to depart; furthermore, they failed to file a petition for judicial review until after the expiration of those several periods of privilege. In this light and considering the whole history of the proceedings, the court concludes that the Board acted well within the sound discretion available to it in denying the motions which are the subject of this petition.

Other matters which we shall include in our order call for no discussion in this opinion.

It is so ordered.

Before BAZELON, Circuit Judge, FAHY, Senior Circuit Judge, and ROBB, Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge FAHY.

ON MOTIONS FOR COSTS AND ATTORNEY'S FEES

FAHY, Senior Circuit Judge:

These two cases, consolidated in this court, arose from attempts to obtain a grant of voluntary departure for aliens whose deportation was ordered by the United States and upheld by this court in Unification Church v. Attorney General, 189 U.S.App.D.C. 92, 581 F.2d 870 Cert. denied, --- U.S. ----, 99 S.Ct. 102, 58 L.Ed.2d 122 (1978). Thereafter, on November 16, 1978, this court (per curiam) also affirmed in No. 78-1781 the District Court's denial of appellants' petition for a writ of habeas corpus, and denied in No. 78-1843 their petition to review the order of the Board of Immigration Appeals (the Board) denying their motions to reopen the deportation proceedings.

The matters remaining for decision in the above cases, and now disposed of, are motions of the Government, filed in each case, for costs and attorney's fees to be assessed against appellants-petitioners (herein for brevity petitioners) or their counsel, under the authority vested in the court by Federal

Rules of Appellate Procedure 20 and 38 ¹ and 28 U.S.C. § 1927. ²

We affirmed the appeal in No. 78-1781 for the same reasons we denied the petition for review in No. 78-1843. We there held that the Board had not abused its discretion in denying petitioners' motion to reopen the deportation proceedings to enable them to seek permission voluntarily to depart from the United States. In so holding we relied in part upon the failure of petitioners to file a petition to review the Board's order of deportation until after the expiration of the period of privilege to depart voluntarily, granted by the Board. Appellee, in his Response to "Memorandum in...