Gordon v. I.N.S.
| Decision Date | 20 September 1994 |
| Citation | 36 F.3d 249 |
| Parties | Daniel Anthony GORDON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Docket 94-4079. |
| Court | U.S. Court of Appeals — Second Circuit |
Enrique Pena-Perez, New York City, for petitioner.
Diogenes P. Kekatos, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., New York City, on the brief), for respondent.
Before: NEWMAN, Chief Judge, KEARSE and CARDAMONE, Circuit Judges.
The pending motion for a stay of deportation prompts this brief opinion to alert the Immigration and Naturalization Service ("INS") and the United States Attorney's Office for the Southern District of New York of the need to avoid a repetition of the circumstances that give rise to this motion.
David Anthony Gordon moves for a stay of deportation. He is a native of Jamaica, admitted as a lawful permanent resident in 1983. Following his state court convictions for criminal possession of a weapon in the third degree, in violation of N.Y. Penal Law Sec. 265.02 (McKinney 1989), and criminal possession of a controlled substance in the fifth degree, in violation of N.Y. Penal Law Sec. 220.06 (McKinney 1989), he was found to be deportable and ineligible for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(c) (1988). Upon rejection of his administrative appeal by the Board of Immigration Appeals ("BIA"), he filed a petition for review in this Court and moved for a stay. On the representation of Assistant United States Attorney Diogenes P. Kekatos by letter dated May 25, 1994, that INS "will proceed on the assumption that the conviction is not an aggravated felony and that Gordon has an automatic stay of deportation," this Court denied the stay on May 31, 1994. Thereafter, on June 28 counsel for Gordon and Assistant United States Attorney Diogenes P. Kekatos filed with this Court a stipulation providing that the petition for review shall be held in abeyance until the Court has received and considered the decision on remand in Esposito v. INS, 987 F.2d 108 (2d Cir.1993), and that the automatic stay of deportation, 8 U.S.C. Sec. 1105a(a)(3), shall remain in effect until 30 days after respondent notifies the petitioner of the decision on remand in Esposito.
Notwithstanding this stipulation, on July 7 the INS sent Gordon a notice directing him to report to the INS on August 4, 1994, "ready for deportation." The notice stated that "it is now incumbent upon this Service to enforce your departure from the United States." On August 3 counsel for Gordon filed a motion in this Court to stay deportation. Judge McLaughlin entered a temporary stay until consideration of the motion by the panel sitting on August 30, 1994.
On August 23, Assistant United States Attorney Kekatos wrote this Court a letter brief in opposition to the motion for a stay. That letter acknowledged the June 28 stipulation providing for a stay of deportation and characterized the INS directive of July 7 as a notice "to surrender." The letter stated that Kekatos had informed Gordon's counsel that Gordon was protected from deportation under the terms of the stipulation, and asserted that Gordon was nonetheless obligated to surrender so that the INS could take him into its custody. The letter further asserted that this Court should deny the stay application on the ground that Gordon...
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