Dor v. District Director, I.N.S.
| Decision Date | 08 December 1989 |
| Docket Number | D,No. 937,937 |
| Citation | 891 F.2d 997 |
| Parties | Lyonel DOR, Petitioner-Appellant, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. ocket 88-6270. |
| Court | U.S. Court of Appeals — Second Circuit |
Mark Eli Nerenberg (Galef & Jacobs, New York City), for petitioner-appellant.
Noel Anne Ferris, Sp. Asst. U.S. Atty., New York City (Benito Romano, U.S. Atty., S.D.N.Y., Harriet L. Goldberg, Asst. U.S. Atty., of counsel), for respondent-appellee.
Before FEINBERG, PIERCE, and BROWN, * Circuit Judges.
Lyonel Dor appeals a district court decision denying his application for a preliminary injunction and dismissing his petition for a writ of habeas corpus. Dor, a Haitian, was ordered deported in 1985 after serving a prison sentence for manslaughter. A final order of deportation was stayed by this Court in 1987, however, so that the Immigration and Naturalization Service (INS) could determine whether Dor was entitled to relief under a recently passed immigration law. We reject Dor's arguments that his continued detention (i) is without rational basis, (ii) extends beyond an INS six-month detention limitation, and (iii) violates due process. Furthermore, we find that the terms of our stay have been satisfied, i.e., that Dor's application for adjustment of status under the new immigration law has been sufficiently adjudicated by the INS. Accordingly, we affirm the district court's ruling and we vacate our earlier stay.
Dor, a citizen of Haiti, entered the United States at the age of 12 without valid entry documents in 1972. 1 Six years later he was convicted of first degree manslaughter for participating in the murder of his aunt. Dor served 6 1/2 years in prison and then was released into the custody of the INS on June 20, 1984. He remains in INS custody today, more than 5 years after completing his sentence.
On December 8, 1982 the INS instituted deportation proceedings against Dor on the ground that he had entered the United States without valid entry documents. Having conceded that he indeed illegally entered the United States, Dor applied for asylum and a withholding of deportation. An Immigration Judge on April 30, 1985 denied his request for asylum and a withholding of deportation on the grounds that Dor is "a danger to the community of the United States" given the role he played in the slaying of his aunt, and ordered his deportation (event 3). See Immigration and Nationality Act (INA), § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B) (1952); 8 C.F.R. § 208.8(f) (1988). Dor unsuccessfully appealed that decision to the Board of Immigration Appeals (BIA) (event 4). In its dismissal order, the BIA determined that Dor was eligible for neither a withholding of deportation nor asylum due to his conviction for first degree manslaughter. Subsequently the BIA also denied Dor's motion to reconsider and to reopen the deportation hearing (event 7; 7/3/86). Dor became subject to a final order of deportation on December 31, 1985.
Having exhausted his administrative remedies, Dor sought judicial review of the deportation order resulting in a stay of the order. 8 U.S.C. § 1105a(a)(3). In December 1986 this Court affirmed the order of deportation, (event 8; 12/24/86) but then stayed the issuance of its mandate in response to the suggestion that under the then-recently promulgated Immigration Reform and Control Act of 1986 (IRCA), Pub.L. 99-603, Dor as a Haitian might qualify for an adjustment of status and thus avoid deportation by attaining the status of lawfully admitted permanent resident (event 15; 1/20/87). 2 On January 20, 1987 the stay of mandate was modified by extending it from 21 days to "until such time as the Immigration and Naturalization Service adjudicates the applications for relief from deportation by adjustment of status to lawful permanent resident status under [IRCA § 202]." (event 15)
Nearly three years have elapsed since this Court stayed Dor's deportation. 3 On January 15, 1987 Dor filed his application for adjustment of status with the District Director of INS (event 14). The District Director rejected Dor's application for adjustment on the grounds that he was statutorily ineligible (event 17; 1/29/87). The Administrative Appeals Unit (AAU) then advised that Dor "may be eligible to file an application before the District Director (event 19; 10/16/87)." Thereupon, on December 7, 1987, the District Director denied the application without a hearing (event 20). The District Director concluded that Dor was not eligible for adjustment under IRCA § 202(a)(3) because his manslaughter conviction made him an alien who had "been convicted by a final judgment of a particularly serious crime," under § 243(h)(2)(B) of the INA. Dor filed a notice of appeal to the AAU (event 21; 12/28/87), and requested the District Director for a hearing. Before the AAU granted an appeal, the District Director granted Dor a hearing, but again ruled against Dor's application (event 22; 1/23/89).
Dor has gone back and forth between the District Director and the AAU in his quest for adjustment. Throughout these legal maneuvers, this Court's stay of mandate alone has kept Dor from being deported. In August 1988 Dor filed a petition in the district court for habeas corpus and mandatory and injunctive relief pursuant to 8 U.S.C. § 1329 (event 31). Specifically Dor seeks release from INS custody while his quest for adjustment proceeds at a snail's pace. At the time the district court denied Dor's application for a preliminary injunction and dismissed the petition for a writ of habeas corpus, 697 F.Supp. 694 (S.D.N.Y.1988) (event 32; 9/29/88), the January, 1989 decision of the District Director had not issued.
Today as we review the district court's denial of habeas corpus relief, the AAU has affirmed (event 24; 6/12/89) the latest decision of the District Director (event 22; 1/23/89), finding once again that Dor does not have grounds for attaining readjustment under IRCA. 4 On August 4, 1989 Dor filed a motion pursuant to 8 C.F.R. § 103.5(a) (1989) seeking AAU reconsideration of that AAU decision (event 25). The AAU denied this motion for reconsideration on September 18, 1989 (event 26), holding that it's previous decision (event 24) thoroughly reviewed the issues and arguments presented in the appeal and reiterated on motion. Meanwhile, on October 11, 1989, the BIA heard oral argument on Dor's motion to reopen his deportation proceedings (event 10). 5 This most recent motion to reopen the deportation proceedings has also been denied (event 11; 11/2/89).
We are presented initially with the question of whether the district court erred in dismissing Dor's petition for a writ for habeas corpus and request for injunctive relief. We wholeheartedly embrace the district court's conclusions that Dor's continued detention by the INS is legal. We reject Dor's arguments that (i) the detention without bond was without rational basis; (ii) the INS' failure to deport him within six months of the entry of the final deportation order precludes his further detention; and (iii) his extended detention violates due process.
The Haitian-Cuban Adjustment provision of IRCA, § 202(a), excludes from its coverage those aliens described in the earlier immigration statute, INA § 243(h), 8 U.S.C. § 1253(h). 6 For our purposes, the pertinent subsection of § 243(h) is 243(h)(2)(B), which states that a withholding of deportation shall not be granted when "the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." INA § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B). As the district court pointed out, the Immigration Judge has already made an unambiguous finding in the deportation proceedings (event 3; 4/30/85), and this has been confirmed by the BIA (event 4; 8/20/85), that appellant Dor is within those class of persons defined by § 243(h)(2)(B) of the Act, 8 U.S.C. § 1253(h)(2)(B). 7
Dor makes several arguments to challenge the effect of this characterization by the immigration authorities. None of these arguments are persuasive. First, Dor claims that this Court has already determined that his homicide conviction is insufficient to show that he is "dangerous" under INA 243(h)(2), 8 U.S.C. § 1253(h)(2). Dor bases this claim solely on our earlier rejection (event 18; 2/9/87) of the Government's motion to vacate the stay of the mandate (event 16; 1/28/87). But in rejecting the Government's motion to vacate the stay, we neither intended nor intimated a particular substantive ruling, explicit or implied, regarding the merits of either party's claim. Our stay of the mandate was designed simply to allow Dor the ability to maintain administrative review in the INS in light of the passage of IRCA. Since Dor is a Haitian, and IRCA contains a special provision for Haitians, (the Cuban-Haitian Adjustment provision, § 202), we merely considered the obvious possibility that Dor's alien status might be adjusted pursuant to that Act. However, well-established doctrine prevented our judicial interference in administrative decision-making at that incomplete stage of the process. 8
Second, Dor contends that the Immigration Judge and the BIA have no jurisdiction to determine his eligibility under IRCA because the act requires the Attorney General to make the status eligibility determination. 9 We agree. The proper authority to decide Dor's adjustment application is the Attorney General, and he has delegated that authority, by regulation, to the District Director. 8 C.F.R. § 245.6 (1989). And as we observed, supra, Dor has been pursuing adjustment of status before the District Director and, on appeal, before the AAU. However, merely because the District Director and the AAU have exclusive jurisdiction over...
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