Michael v. I.N.S.

• Decision Date: 16 February 1995
• Docket Number: Docket No. 94-6240
• Citation: 48 F.3d 657
• Parties: Marcus Andre MICHAEL, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 657

48 F.3d 657

Marcus Andre MICHAEL, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

Docket No. 94-6240.

United States Court of Appeals, Second Circuit.

Submitted Nov. 22, 1994.

Decided Feb. 16, 1995.

Marcus A. Michael, pro se.

James A. O'Brien, III, Sp. Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., for the S.D.N.Y., Steven M. Haber, Asst. U.S. Atty., on the brief), for appellee.

Before JACOBS, CALABRESI, and PARKER, Circuit Judges.

CALABRESI, Circuit Judge:

Petitioner, Marcus Andre Michael ("Michael"), appeals pro se from an order of the United States District Court for the Southern District of New York (Koeltl, J.) transferring his petition for a writ of habeas corpus (by which he sought to stay his imminent deportation) to the United States District Court for the Western District of Louisiana. 870 F.Supp. 44. Michael also requests that this Court grant a stay of deportation. We dismiss Michael's appeal insofar as it relates to his petition for habeas relief for lack of appellate jurisdiction. We, however, grant his application for a stay pending the Board of Immigration Appeals' ("BIA's") review of the Immigration Judge's ("IJ's") denial of Michael's motion to reopen his deportation proceedings. Should the BIA affirm the IJ's refusal to reopen the deportation proceedings, our stay will remain in effect in order to permit Michael to seek review in this Court of the BIA's decision.

BACKGROUND

Michael is a native and citizen of Guyana. He was admitted to the United States as a lawful permanent resident on August 2, 1985. When the Immigration and Naturalization Service ("INS") first took Michael into custody in connection with the current deportation proceedings in June 1994, he resided in Brooklyn, New York.

On February 23, 1994, Michael pleaded guilty before the Supreme Court of the State of New York, Kings County, to criminal possession of a weapon in the third degree. See N.Y.Penal Law Sec. 265.02. After sentencing, Michael was jailed for 90 days in the Correctional Institution for Men in East Elmhurst, New York. Upon Michael's release from state prison in May 1994, the INS ordered him to show cause why he should not be deported, charging that he was deportable pursuant to section 241(a)(2)(C) of the Immigration and Nationality Act of 1952, as amended, which provides:

Any alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) is deportable.

8 U.S.C. Sec. 1251(a)(2)(C).

In June 1994, the INS ordered Michael to report for detention at the Federal Detention Center in Oakdale, Louisiana. On June 13, 1994, he was released from INS custody upon posting a $10,000 bond and he returned home to Brooklyn. On July 7, 1994, Michael's New York attorney sent to the IJ in Oakdale, by express mail, a motion for a change of venue, together with supporting papers raising Michael's eligibility for a waiver of deportation pursuant to section 212(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(c) (1994). For some unexplained reason, the IJ did not receive these materials until July 13, 1994--one day after Michael did not appeal the deportation order to the BIA because his motion raising the request for section 212(c) relief was not part of the administrative record upon which that order was based. Instead, Michael, through counsel, filed a motion with the IJ to reopen the deportation proceedings so that he might apply for a section 212(c) waiver of deportation. Michael also requested a stay of deportation and a change of venue to New York City. ¹ He argued that a case pending before the BIA, Matter of Esposito (see Esposito v. INS, 987 F.2d 108 (2d Cir.1993)), would establish his eligibility for section 212(c) relief from deportation.

he issued Michael's order of deportation. The record reflects, however, that on July 12, 1994--the same day that the IJ ordered Michael deported--Michael's attorney spoke with the IJ, notified him that the July 7th motion papers were in transit, and requested that he either briefly postpone his decision or that he consider an oral motion for a change of venue. The IJ denied both requests.

On August 19, 1994, the IJ denied the motions to reopen, to stay the deportation, and for a change of venue. On August 23, 1994, the INS District Director issued Michael a notice to surrender for deportation in Oakdale, Louisiana on September 26, 1994. The following day, August 24, 1994, Michael appealed the IJ's August 19th decision to the BIA and, pending his administrative appeal, requested a stay of deportation from both the INS District Director and the BIA. On August 30, 1994, the INS acknowledged receipt of Michael's application for a stay, and informed him that it would take between 30 and 180 days to process his request. Under the circumstances, Michael might well have been deported before the INS passed upon his application for a stay.

On September 12, 1994, Michael, acting pro se, ² filed the current petition for habeas corpus relief in the United States District Court for the Southern District of New York, seeking to enjoin the INS from deporting him prior to the resolution of his administrative appeal. Michael claimed that the district court should stay his deportation because his underlying request for section 212(c) relief raised a non-frivolous constitutional issue that had not yet been decided by the Second Circuit, see Esposito v. INS, 987 F.2d 108, 111-12 (2d Cir.1993) (per curiam) (remanding to the BIA for initial consideration whether, in light of equal protection concerns, aliens with firearms convictions are eligible for section 212(c) relief), and because the IJ had abused his discretion in denying Michael's motion to reopen his administrative proceedings and in denying his request for a stay. Concluding that he did not have jurisdiction to entertain Michael's habeas petition, on September 19, 1994, Judge Koeltl transferred these proceedings pursuant to 28 U.S.C. Sec. 1406(a) to the United States District Court for the Western District of Louisiana. Two days later, Michael filed a notice of appeal in the Southern District of New York and a pro se application for a stay of deportation in this Court.

On September 22, 1994, Judge Miner of this Court granted a temporary stay of deportation in order to permit the United States Attorney for the Western District of Louisiana to show cause why a stay should not be granted by that court pending Michael's administrative appeal. That same day, Judge Trimble of the Western District of Louisiana denied Michael's petition for habeas relief. On September 23, 1994, Judge Miner vacated his stay and declined to grant another one until a three-judge panel of this Court addressed Michael's appeal. On October 5, 1994, the INS District Director denied Michael's pro se appeal from the district court's transfer order and his application for a stay of deportation were submitted for decision to this panel on November 22, 1994. On November 30, 1994, a panel majority, Judge Jacobs dissenting, entered an order granting Michael a temporary stay of deportation and inviting the INS to submit briefs addressing

Michael's administrative stay application, as did the BIA on November 7, 1994.

why a stay of deportation should not issue, and specifically addressing the authority of this Court under the All Writs Act, 28 U.S.C. Sec. 1651, to issue such a stay to protect this Court's jurisdiction to hear any subsequent appeal that the petitioner-appellant might take from an adverse ruling of the BIA. ³

DISCUSSION

A. Michael's Appeal from the District Court's Transfer Order

Having considered the tortured and tortuous history of this case, we conclude that Judge Koeltl's decision to transfer Michael's petition to the Western District of Louisiana, a court that admittedly had jurisdiction over his petition, is an interlocutory order that is unappealable absent the necessary district court certification. Cf. Chapple v. Levinsky, 961 F.2d 372, 374 (2d Cir.1992) (per curiam) (section 1404(a) transfer is an interlocutory order that requires district court certification under 28 U.S.C. Sec. 1292(b) for immediate appellate review); Kotlicky v. United States Fidelity & Guaranty Co., 817 F.2d 6, 7 n. 1 (2d Cir.1987). Because Judge Koeltl did not stay the execution of his transfer order and certify the question of whether the transfer of Michael's habeas petition to the Western District of Louisiana was appropriate, we dismiss Michael's appeal from that order for want of appellate jurisdiction.

B. Michael's Application for a Stay of Deportation

Michael's request for a stay of deportation, however, is another matter. His application raises the question of whether, in extraordinary cases, the All Writs Act provides a federal court of appeals with an independent statutory basis to stay a deportation order. We hold that it does.

1. Jurisdiction

The Immigration Act goes far to insure that aliens may obtain judicial review of final deportation orders. The statute provides that an alien may obtain such review in the court of appeals for the judicial circuit in which the administrative proceedings occurred or the judicial circuit of the alien's residence. See 8 U.S.C. Sec. 1105a(a)(2). Furthermore, this jurisdiction is both direct and exclusive in the court of appeals. See Garay v. Slattery, 23 F.3d 744, 745 (2d Cir.1994).

Upon the timely filing of an alien's petition to review a final deportation order, and absent an aggravated felony conviction, an alien's deportation is automatically stayed pending review of that petition by the court of appeals. See 8 U.S.C. Sec. 1105a(a)(3). In the event that an alien has been convicted of an aggravated felony, he or she may...