Bothyo v. Moyer, 84-3131

• Decision Date: 09 September 1985
• Docket Number: No. 84-3131,84-3131
• Citation: 772 F.2d 353
• Parties: Warjina S. Sarkis BOTHYO, Plaintiff-Appellant, v. A.D. MOYER, District Director, Immigration and Naturalization Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 353

772 F.2d 353

Warjina S. Sarkis BOTHYO, Plaintiff-Appellant, v. A.D. MOYER, District Director, Immigration and Naturalization Service, Defendant-Appellee.

No. 84-3131.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1985.

Decided Sept. 9, 1985.

Mark Jacob Thomas, Chicago, Ill., for plaintiff-appellant.

Jack Penca, U.S. Atty. (Dan K. Webb, U.S. Atty.), Chicago, Ill., for defendant-appellee.

Before FLAUM and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.

FLAUM, Circuit Judge.

The issues presented in this case are (1) whether the defendant district director of the Immigration and Naturalization Service ("INS") abused his discretion by denying the plaintiff alien's request for a stay of deportation prior to decisions by the immigration judge and the Board of Immigration Appeals (the "Board") as to whether the plaintiff's deportation case should be reopened, and (2) whether the district court's dismissal of the plaintiff's habeas corpus petition prior to the plaintiff's appeal to the Board amounted to a denial of her due process rights. We affirm the district court's decision.

I.

On October 25, 1979, the plaintiff Warjina S. Sarkis Bothyo ("Bothyo"), an Iraqi citizen, entered the United States as a nonimmigrant visitor for pleasure with authorization to remain in the United States until November 15, 1979. Bothyo did not leave on November 15, but rather filed an application for political asylum with the Chicago district office of the INS, claiming that due to her religious beliefs, she would be persecuted if she returned to Iraq. The district director denied her request on January 23, 1984, and gave her until February 23, 1984, to depart voluntarily. Bothyo again failed to leave.

On March 16, 1984, Bothyo went to the INS office for an interview and requested that deportation proceedings be instituted against her. On August 16, 1984, Bothyo's deportation hearing was held. She admitted that she was deportable, and merely sought the right to depart voluntarily by November 16, 1984. Bothyo again failed to depart by the designated date. The INS then issued a warrant of deportation against her, which indicated that she was to report for deportation to Iraq on December 4, 1984. She went to the INS deportation office on December 4, and requested an extension of the date for her voluntary departure due to her marriage to a lawful permanent resident of the United States. On the same day, her attorney filed a petition for a writ of habeas corpus in the district court, an application for a stay of deportation with the INS, and a motion to reopen her deportation proceedings with the immigration judge in order to submit an application for asylum and withholding of deportation.

On December 5, 1984, the district director of the INS denied her application for a stay of deportation, and on December 12, the immigration judge denied her motion to reopen the deportation proceedings. On December 13, the district court granted the INS's request for dismissal of the habeas corpus petition. On December 18, Bothyo was taken into custody by the INS and filed her appeal to this court from the district court's dismissal of her habeas corpus petition. On that same day, the Board denied Bothyo's motion for an emergency stay of deportation. On December 19, Bothyo filed an appeal with the Board from the immigration judge's denial of her motion to reopen.

On appeal, Bothyo claims that the district director abused his discretion in denying her request for a stay of deportation prior to decisions by the immigration judge and the Board on her motion to reopen. Bothyo also claims that the district court's dismissal of her habeas corpus petition prior to her appeal to the Board amounted to a final order of deportation and denied her the right to due process of law.

II.

Section 106(a)(9) of the Immigration and Nationality Act provides that any alien held in custody pursuant to an order of deportation can obtain judicial review of such order by habeas corpus proceedings. 8 U.S.C.A. Sec. 1105a(a)(9) (1970 & West Supp.1985). The courts have thus held that a district court's habeas corpus jurisdiction extends to the review of an INS district director's denial of an alien's request for a stay of deportation. See, e.g., Kwok v. INS, 392 U.S. 206, 215-17, 88 S.Ct. 1970, 1975-76, 20 L.Ed.2d 1037 (1968); Carvajal-Munoz v. INS, 743 F.2d 562, 566 (7th Cir.1984); In the Matter of Odeh, 601 F.Supp. 25, 26-27 (N.D.Ill.1984); Bueno v. INS, 578 F.Supp. 22, 24 (N.D.Ill.1983). ¹ The standard applied by the courts, however, in reviewing a denial of a stay by an INS district director is extremely narrow--whether the district director's decision was an abuse of discretion. Kladis v. INS, 343 F.2d 513, 515 (7th Cir.1965); Bueno v. INS, 578 F.Supp. at 24. This circuit has held that an abuse of discretion may be found only if there is no evidence to support the decision or if the decision is based on an improper understanding of the law. Joseph v. Landon, 679 F.2d 113, 116 (7th Cir.1982) (citing Suh v. Rosenberg, 437 F.2d 1098, 1102 (9th Cir.1971)).

The first issue raised in the present case is whether the district court properly held that the INS district director did not abuse his discretion by denying Bothyo's request for a stay of deportation prior to decisions by the immigration judge and the Board on her motion to reopen the deportation proceedings. We hold that the district court properly concluded that the district director did not abuse his discretion in denying the stay.

The administrative regulation dealing with stays of deportation, 8 C.F.R. Sec. 243.4 (1985), provides that the district director, in his discretion, may grant a stay of deportation for such time and under such conditions as he may deem appropriate. See also Kladis v. INS, 343 F.2d at 515 (stays of deportation are matters of grace and not of right). The regulation further provides that the alien's filing of a request for a stay of deportation shall not relieve the alien from strictly complying with any outstanding notice to surrender for deportation. 8 C.F.R. Sec. 243.4. In addition, the administrative regulations dealing with the filing of motions to reopen either before an immigration judge, 8 C.F.R. Sec. 242.22, or before the Board, 8 C.F.R. Sec. 3.8(a), provide that the filing of such motions shall not serve to stay the execution of any decision already rendered in a case. These regulations state that the execution of a decision to deport an alien shall proceed unless the immigration judge or the Board specifically grants a stay of deportation pending determination of the motion to reopen. 8 C.F.R. Sec. 242.22; 8 C.F.R. Sec. 3.8(a).

These regulations make it clear that Bothyo's filing of a request for a stay of deportation did not relieve her from complying with the final order of deportation that was outstanding against her following the deportation proceeding that was conducted before an immigration judge on August 16, 1984. Furthermore, these regulations indicate that Bothyo's filing of the motions to reopen first to the immigration judge and then to the Board did not serve to stay the deportation order that had been entered against her in August 1984. Thus, the district director was free to consider her request for a stay and to deny this request even though Bothyo had a motion to reopen pending before the immigration judge and, following his denial, before the Board.

According to the regulations, the only way that execution of the outstanding deportation order against Bothyo could have been stayed prior to the immigration judge's or the Board's resolution of the motion to reopen and following the district director's denial of the stay on December 5, 1984, was if Bothyo had sought and had obtained such a stay of deportation from the immigration judge or the Board. In the present case, Bothyo did not seek such a stay from the immigration judge when she filed her motion to reopen, but rather only filed a motion for a stay with the district director. Upon the immigration judge's denial of her motion to reopen, she proceeded to file a motion to reopen with the Board and also sought a stay from the Board pending resolution of the motion to reopen. On December 18, 1984, the Board denied her motion to stay deportation even though it still had not ruled upon her motion to reopen. In view of the district director's and even the Board's denial of Bothyo's request for a stay of deportation pending resolution of her motion to reopen, Bothyo had no excuse for not complying with the outstanding deportation order previously issued against her.

Although we have concluded that an alien is not automatically entitled to a stay of deportation when the alien files a motion to reopen, ² we still must determine whether the district court was correct in finding that the district director's denial of Bothyo's request for a stay was not an abuse of discretion in...