Mejia-Ruiz v. I.N.S., MEJIA-RUI
| Decision Date | 04 April 1995 |
| Docket Number | MEJIA-RUI,D,P,No. 1250,1250 |
| Citation | 51 F.3d 358 |
| Parties | Roberto Andresetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 94-4163. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael P. DiRaimondo, New York City (Marialaina L. Masi, of counsel), for petitioner.
Diogenes P. Kekatos, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty. for S. Dist. of New York, James A. O'Brien III, Sp. Asst. U.S. Atty., Steven I. Froot, Asst. U.S. Atty., of counsel), for respondent.
Before: OAKES, KEARSE, and CABRANES, Circuit Judges.
Roberto Andres Mejia-Ruiz ("Mejia") petitions for review of an August 26, 1994, decision of the Board of Immigration Appeals ("BIA") treating a deportation order issued by an immigration judge as final because of Mejia's departure from the United States following the issuance of that order. The basic question presented is whether Sec. 3.4 of Title 8 of the Code of Federal Regulations is invalid because it was not promulgated with the "notice and comment" procedures required for certain rules by the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 553(b). The petitioner also raises questions about the propriety of the conduct of the Immigration and Naturalization Service ("INS") and its counsel, and the bearing of that conduct upon the legality of the INS's return of the petitioner to the Dominican Republic.
The facts and issues of the case, in brief, are as follows. An immigration judge issued a deportation order against Mejia on March 22, 1993, and the petitioner appealed the judge's decision to the BIA. During the pendency of the appeal Mejia voluntarily left the country. Under 8 C.F.R. Sec. 3.4 (1994), an alien's departure while an appeal to the BIA is pending constitutes a withdrawal of his appeal. The BIA decided that, pursuant to Sec. 3.4, the immigration judge's decision became final because of Mejia's departure. Before this court, the petitioner contends that Sec. 3.4 is invalid because the INS originally promulgated that provision in 1964 without the "notice and comment" procedures that In challenging his deportation, the petitioner also takes issue with INS actions that culminated in the agency's return of Mejia to the Dominican Republic on January 23, 1995. As described in further detail below, the INS in May 1994 initiated separate "exclusion proceedings" related to the deportation case now before us. 1 After a final adverse decision in the exclusion proceedings was issued on January 11, 1995, the petitioner sought a "stay of deportation" in this court. The stay was granted by a judge of this court, but the judge, unwittingly, did not sign the order until two hours after the INS had put the petitioner on a plane to the Dominican Republic. The petitioner contends that the INS arranged for his departure in contravention of law, and that his "illegal deportation" should not deprive this court of jurisdiction to review the BIA's August 1994 deportation decision.
the petitioner claims were required by the APA.
We agree with the petitioner that the conduct of the INS and its counsel in this case is disturbing. Because we find that Sec. 3.4 is valid, however, we conclude that we lack jurisdiction based on the petitioner's voluntary departure from this country in 1994 during the pendency of his BIA appeal, and we dismiss the petition on that basis.
Mejia is a citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident in 1971. On May 23, 1991, the INS initiated deportation proceedings against him, in which the agency charged that he was deportable because of a 1989 drug conviction. Mejia conceded that he was deportable, but he applied for a waiver pursuant to Sec. 212(c) of the Immigration and Nationality Act of 1952 (). That section makes an alien whose drug conviction renders him deportable eligible for discretionary relief from deportation. See Francis v. INS, 532 F.2d 268, 270-73 (2d Cir.1976). On March 22, 1993, an immigration judge declined to grant Sec. 212(c) relief and ordered Mejia deported to the Dominican Republic. On April 6, 1993, Mejia filed a timely appeal to the BIA.
About a year after filing his appeal, Mejia voluntarily left this country for the Dominican Republic on April 27, 1994. When he returned on May 24, 1994, he was stopped at the border and became subject to exclusion proceedings, 2 in part because he had left the country after the immigration judge's order had issued. The INS claimed, among other things, that Mejia withdrew his BIA appeal by departing the United States, that in so doing Mejia deported himself, and that because he was deported, he became excludable. Mejia was detained in an INS facility in New York.
Reviewing the March 22, 1993 decision of the immigration judge denying Mejia discretionary relief under Sec. 212(c) and ordering Mejia deported, the BIA held on August 26, 1994 that the decision had become final by virtue of Mejia's departure. That meant that the BIA would not review the immigration judge's decision; Mejia was considered to have executed the final order by leaving, and thereby to have deported himself. On September 16, 1994, Mejia filed in this court a petition for review of the BIA's decision in the deportation proceeding. 3
In the meantime, the exclusion proceedings continued. An immigration judge on August 18, 1994, found Mejia excludable. On Some of the facts from that point are in dispute. According to the version of events presented by Michael DiRaimondo, the petitioner's counsel, DiRaimondo received the BIA's January 11 decision on January 13, 1995, the Friday before the holiday weekend commemorating the birthday of Dr. Martin Luther King, Jr. DiRaimondo contacted James O'Brien, Special Assistant U.S. Attorney and a lawyer for the Government in this case, on the following Tuesday, January 17, 1995, and asked the Government to "maintain the status quo" pending oral argument in the deportation case, or at least until the court acted on a motion for an emergency stay. (Presumably "maintain[ing] the status quo" meant ensuring that Mejia would not be sent back to the Dominican Republic.) O'Brien supposedly refused to take steps to "maintain the status quo" but allegedly told DiRaimondo that it would be at least two-to-three weeks before the INS returned Mejia to the Dominican Republic because bureaucratic processing would take that long anyway. O'Brien did consent to an expedited appeal in the deportation proceeding, so that the case might be heard before the INS returned Mejia.
January 11, 1995, the BIA affirmed that decision.
On Thursday, January 19, 1995, DiRaimondo called the Administrative Attorney's office of this court and informed a staff lawyer that he intended to file that day an emergency motion for a stay of deportation. 4 The administrative attorney urged DiRaimondo to seek the Government's agreement to maintain the status quo. Although O'Brien again declined to agree, he did reassure DiRaimondo of the two-to-three-week wait, according to DiRaimondo.
DiRaimondo filed the motion that day, Thursday, January 19, 1995, and on Friday he pressed the staff attorney to have a judge address the motion immediately, as Mejia could have been sent from the United States at any time.
According to Mejia's counsel, at 3:00 a.m. on Monday, January 23, 1995, Mejia was awakened at his place of detention and told that he was being returned to the Dominican Republic; he was not permitted to call his wife until 6:30 a.m., and his plane left at 7:00 a.m. Mejia's counsel reports that his client had no clothes, belongings or money, and that he had no time to make arrangements for his arrival in the Dominican Republic. Two hours later, at 9:00 a.m., Mejia's motion for an emergency stay was granted, the signing judge then unaware that the INS had already sent Mejia from the country and that the motion was thereby possibly rendered moot. Later that morning, O'Brien told DiRaimondo that he had informed the INS that no stay was in effect and that the agency could return the petitioner to the Dominican Republic. Oral argument on the August 26, 1994, BIA decision in the deportation proceeding went forward on an expedited basis on February 9, 1995. In motion papers filed immediately before that hearing, the petitioner's counsel asked that this court order his client's return to the United States.
The Government, in declarations by O'Brien, offers a somewhat different explanation of events following the BIA's January 11, 1995 decision in the exclusion proceeding. O'Brien denies ever having provided any assurance of a two-to-three-week window before Mejia's return. O'Brien contends further O'Brien explains his failure to inform DiRaimondo of the departure date on grounds that the INS, for security reasons, maintains a policy of not disclosing the time of an alien's return to the alien's counsel. And he notes that DiRaimondo had already informed the court that return of Mejia was "imminent." While he acknowledges having known as early as Thursday, January 19, 1995 that the INS was then arranging for Mejia's return, O'Brien does not explain why the Government did not inform either the court or its staff attorneys--actively involved in the handling of a pending motion to prevent Mejia's forced return to the Dominican Republic--of the INS's intentions. Finally, O'Brien points out that the petitioner never exercised his statutory right to seek relief in a district court habeas corpus proceeding, pursuant to 8 U.S.C. Sec. 1105a(b).
that under 8 U.S.C. Sec. 1227(a)(1) the Government lacked the statutory authority to "maintain the status quo." 5 O'Brien acknowledges that he knew on Friday, January 20, of the INS's plans to return the petitioner on Monday morning. He informed the agency of the pending emergency motion and he told the INS he...To continue reading
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