Crespo-Gomez v. Richard, CRESPO-GOME
| Decision Date | 21 January 1986 |
| Docket Number | No. 85-8295,P,CRESPO-GOME,85-8295 |
| Parties | Eduardoetitioner-Appellee, v. Louis M. RICHARD, et al., Respondent-Appellant. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Sharon Douglas Stokes, Nina R. Hickson, Asst. U.S. Attys., Atlanta, Ga., for respondent-appellant.
William C. Thompson, Jay Solomon, Atlanta, Ga., for amicus.
Appeals from the United States District Court for the Northern District of Georgia.
Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.
The government asks us to reverse the order of the district court granting a preliminary injunction against deporting the appellee, and the court's subsequent order refusing to dissolve that injunction. Crespo-Gomez, the petitioner-appellee, arrived in the United States in May 1980 as part of the Freedom Flotilla from Cuba and was eventually paroled into this country pursuant to 8 U.S.C. Sec. 1182(d)(5)(A). On May 5, 1983, appellee was convicted in California of two counts of possession of cocaine for sale; he was sentenced to one year in prison and four years probation. Thereafter, the immigration parole was revoked, and following an exclusion hearing pursuant to 8 U.S.C. Sec. 1226, and 8 C.F.R. Sec. 236 (1985), the immigration judge found the appellee to be an excludable alien.
The appellee sought a reopening of his exclusion hearing, arguing that he was entitled to asylum under 8 U.S.C. Sec. 1253(h). 1 He also sought a stay of deportation from the Immigration and Naturalization Service (INS) district director. The district director denied the stay request, concluding that the petitioner's motion to reopen the exclusion hearing would be denied because of his prior criminal conduct. An immigration judge denied the petition to reopen for the same reason, and the Board of Immigration Appeals affirmed.
The appellee filed a habeas corpus petition in the district court challenging the district director's denial of a stay, and the district court issued a preliminary injunction preventing deportation of the appellee. See 8 U.S.C. Sec. 1105a(b). The district director had found that the alien would be ineligible for asylum under section 1253(h) because he had been convicted of a particularly serious crime. 8 U.S.C. Sec. 1253(h)(2)(B). The district court, however, concluded that 8 U.S.C. Sec. 1253(h)(2)(B) requires two findings: that the petitioner has been convicted of a particularly serious crime and that he constitutes a danger to society. The district court also found that the statute requires articulation of reasons beyond the mere citation of a conviction. Accordingly, the court concluded that there was a reasonable possibility that the district director had abused his discretion and that the appellee would prevail on the merits.
The government then filed a motion to dissolve the preliminary injunction based on the decision of the Board of Immigration Appeals. The district court held that the Board of Immigration Appeals abused its discretion in finding that the appellee constitutes a danger to society within the meaning of 8 U.S.C. Sec. 1253(h)(2)(B). The district court noted that the Board made no findings beyond pointing to the conviction, and that there was evidence in the record that the appellee was not a danger to society. The district court concluded that more factual findings were required before the appellee could be deported, and therefore refused to dissolve the stay.
The district court's issuance of the preliminary injunction on the ground that the district director abused his discretion was improper: the district director does not have authority to grant the stay relief requested by the petitioner. Zardui-Quintana v. Richard, 768 F.2d 1213 (11th Cir.1985) (). Here, however, in its decision refusing to dissolve the preliminary injunction, the district court adopted a new ground for injunctive relief, concluding that the Board of Immigration Appeals abused its discretion in finding the appellee ineligible for asylum. The decision of the Board of Immigration Appeals is part of the record, and we conclude that the Board was within its discretion in finding the petitioner ineligible for asylum.
Judicial review of denials of discretionary relief incident to deportation proceedings, including denials of motions to reopen, is limited to determining whether there has been an exercise of administrative discretion, and whether the manner of exercise has been arbitrary or capricious. Garcia-Mir v. Smith, 766 F.2d 1478, 1491 (11th Cir.1985).
The district court's ruling that the Board did not make sufficient findings is based in part on an incorrect interpretation of the statute. The district court noted evidence in the record of the alien's youthfulness and family support which indicated he was not a "danger to the community," and ruled that the board needed to make further findings to support its conclusion that the alien was dangerous. The ruling is based on the district court's mistaken view that 8 U.S.C. Sec. 1253(h)(2)(B) requires two separate findings: first that the alien committed a particularly serious crime, and second that the alien constitutes a danger. The statute, however, does not connect its two clauses with a conjunction; rather the statute sets forth a cause and effect relationship: the fact that the alien has committed a particularly serious crime makes the alien dangerous within the meaning of the statute. Zardui-Quintana, 768 F.2d 1213, 1222 (11th Cir.1985) (Vance, J., concurring in result). Accordingly, the only finding required by section 1253(h)(2)(B) is that the alien has been convicted of a "particularly serious crime."
In our view the Board was not required to set forth detailed subsidiary findings of fact to support its legal conclusion. See Zardui-Quintana, 768 F.2d at 1223 (Vance, J., concurring in result); see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 409-17, 91 S.Ct. 814, 820-24, 28 L.Ed.2d 136 (1971) (). Nothing in the statutes or regulations requires detailed...
To continue reading
Request your trial
-
Kofa v. U.S. I.N.S.
...v. Rivkind, 845 F.2d 271, 275 (11th Cir.1988); Ramirez-Ramos v. INS, 814 F.2d 1394, 1396-97 (9th Cir.1987); Crespo-Gomez v. Richard, 780 F.2d 932, 934-35 (11th Cir.1986) (per curiam); Zardui-Quintana v. Richard, 768 F.2d 1213, 1221-22 (11th Cir.1985) (Vance, J., concurring); see also Feroz ......
-
In re Q-T-M-T-
...Martins v. INS, 972 F.2d 657, 660-62 (5th Cir. 1992); Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987); Crespo-Gomez v. Richard, 780 F.2d 932, 934-35 (11th Cir. 1986). In the case before us, however, we must ascertain whether the amendments to section 243(h), brought about by secti......
-
Alaka v. Attorney General of U.S.
...v. I.N.S., 335 F.3d 858, 861 n. 2 (9th Cir.2003); Al-Salehi v. I.N.S., 47 F.3d 390, 396 (10th Cir.1995); Crespo-Gomez v. Richard, 780 F.2d 932, 934 (11th Cir.1986). Because we conclude that Alaka was not convicted of a "particularly serious crime," we do not consider the BIA's conclusion th......
-
Mosquera-Perez v. I.N.S.
...see also Martins v. INS, 972 F.2d 657, 660-61 (5th Cir.1992); Arauz v. Rivkind, 845 F.2d 271, 275 (11th Cir.1988); Crespo-Gomez v. Richard, 780 F.2d 932, 934 (11th Cir.1986). Moreover, Mosquera's contextual argument is counterbalanced by the presence of 8 U.S.C. Sec. 1226(e)(2)-(3), governi......