Schieber v. Immigration and Naturalization Service

• Decision Date: 19 May 1975
• Docket Number: No. 74-1866,74-1866
• Citation: 520 F.2d 44,171 U.S.App.D.C. 312
• Parties: HAVIV SCHIEBER, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 44

520 F.2d 44

171 U.S.App.D.C. 312

HAVIV SCHIEBER, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 74-1866.

United States Court of Appeals, District of Columbia Circuit.

May 19, 1975.

On Respondent's Motion to Vacate Stay of Deportation.

Bruce J. Terris, Zona F. Hostetler and Nathalie V. Black, Washington, D.C., were on the pleadings for respondent.

John L. Murphy, Chief, Crim.Div., Dept. of Justice, and Richard I. Chaifetz, Atty., Dept. of Justice, were on the pleadings for respondent.

Before McGOWAN and ROBINSON, Circuit Judges.

PER CURIAM:

Haviv Schieber has filed a petition for review of an order of the Board of Immigration Appeals denying his motion to reopen proceedings seeking his deportation. By statute, the petition has the automatic effect of staying deportation, unless otherwise directed by the court, pending resolution of the case on the merits. ¹ The Immigration and Naturalization Service (INS) has moved for vacation of the statutory stay to enable Schieber's deportation forthwith. For the reasons hereinafter articulated, we grant the motion to vacate and, finding no nonfrivolous question presented for consideration of the merits, we dismiss the petition for review sua sponte.

I

Schieber was born in 1913 in Kormarno, Poland, now in the Soviet Union. He fled anti-semitism in 1932 and emigrated to Palestine, and during the Holocaust he risked life and limb to help other Jews escape the Nazis and resettle in Palestine. A builder by trade, Schieber increasingly involved himself in politics in the new state of Israel; a virulent anti-Communist and anti-Socialist, he sparred frequently with the ruling Mapai Party of David Ben-Gurion. Ultimately, he went to the final step of organizing the Democratic Party of Israel as an anti-Communist party which among other things advocated religious freedom and equal status in Israel for non-Jews. Schieber was arrested eighteen times during the years 1947-58, he says for political reasons. The most serious of his four convictions were two in 1954 for obtaining money under false pretenses.

In 1959, Schieber, a founder of the AntiCommunist League of Israel, went as the Israeli delegate to the International Conference of the AntiCommunist League, held that year in Guatemala. After the conference, on March 3, 1959, he entered the United States at Miami, and since he was a nonimmigrant visitor for pleasure, ² he was required to depart by February 1, 1960. He has remained in the United States by a combination of litigation in the courts and lobbying in Congress and through the press. The story must be recounted because it bears directly on the treatment this court should accord his current effort to avoid deportation.

After the expiration of his visa, Schieber settled in New York and worked as a construction foreman. The INS found him there and at a deportation hearing before a Special Inquiry Officer on March 15, 1961, he conceded deportability. ³ A final deportation order was entered and Schieber did not appeal. He did, however, petition the Special Inquiry Officer and the Northeast Regional Commissioner to reopen the deportation proceeding ⁴ to permit him to introduce evidence allegedly showing that if deported to Israel he would be subject to political persecution, and to argue that on that account the Attorney General should withhold deportation and grant him political asylum. ⁵ Hearings on the petition were held in April and August, 1961, culminating in a denial of relief. A petition for review was filed in the Second Circuit but was ultimately dismissed by mutual agreement when, Schieber having married an American citizen, the INS granted him a new hearing, this time on a petition for an adjustment of his status in light of his marriage. ⁶

Hearings on that petition took better than two years ⁷ and in the meantime Schieber's wife obtained a divorce. Since he was no longer the immediate relative of an American citizen, and thus automatically eligible for a visa regardless of the numerical limitations imposed, ⁸ the success of his application for adjustment of status turned on the availability of an immigrant visa. The Board denied the visa because the non-preference quota for Polish immigrants was oversubscribed. ⁹ Schieber, then a resident of Los Angeles, ¹⁰ petitioned the Ninth Circuit for review of the Board's denial and its refusal to reopen the political persecution issue. On June 14, 1965, the Ninth Circuit affirmed the Board on both counts. ¹¹

Following this setback, Schieber and a growing number of allies ¹² turned their attention to Congress. The next four years were consumed in an effort, in three successive Congresses, to secure enactment of a private bill foreclosing Schieber's deportation. Since, by administrative practice, a deportation order is stayed while private bills for relief of an alien are pending in Congress, the lobbying activity, while ultimately unsuccessful, did allow Schieber to remain in this country four more years. The defeat of his fourth private bill on October 27, 1969, however, signalled the end of the first congressional phase of his fight against deportation, ¹³ and ushered in a new found of agency and court litigation which has culminated in the petition for review sub judice.

Later in 1969, Schieber petitioned the Board to reopen his proceeding to permit him to apply to the Attorney General for a suspension of deportation. ¹⁴ The Board denied the petition ¹⁵ and also denied an amended petition which reasserted the political persecution grounds rejected by the Ninth Circuit; and on appeal, the Second affirmed. ¹⁶ Schieber then adopted a fresh approach: aided by his special skills in the construction trades, he applied for and received from the Secretary of Labor ¹⁷ a certificate by which he sought to transform himself from a nonpreference to a sixth preference alien--one more likely to receive an immigrant visa. ¹⁸ To this end, he petitioned the Board to reopen the deportation proceeding to enable him to apply in light of the certification for an adjustment of status. ¹⁹ On September 23, 1971, the motion to reopen was denied on the ground that Schieber was not eligible to receive an immigrant visa because he had previously been convicted of crimes of moral turpitude. ²⁰

Schieber then filed a motion to reconsider, seeking an opportunity to demonstrate that the offenses of which he had been convicted did not involve any element of moral turpitude. The Board denied the motion on October 12, 1971, and a petition for review was summarily dismissed by the Second Circuit--from the bench--as frivolous. ²¹ Still another motion to reopen the proceeding for an undertaking to show the absence of moral turpitude resulted in a quick administrative denial, and a terse but sharply worded affirmance by the Second Circuit which spelled the end of Schieber's welcome in that court. ²²

Thus rebuffed, Schieber again prevailed upon his congressional sponsors to reintroduce a private measure on his behalf, and at that time he beseeched the Board to reopen the deportation proceeding for reconsideration of his application for an adjustment of status, an avenue clearly unavailable to him. ²³ Pendency of the bill and resolution of the new application spanned eighteen months more. Finally, on October 4, 1973, Schieber was served with a notice to report for deportation on October 17, 1973.

At the eleventh hour, however, Schieber received a stay of deportation--until January 24, 1974--because of the instability generated by the Yom Kippur War. He used that opportunity to make tapes for Radio Cairo, to be broadcast to the war front, urging Israeli soldiers to lay down their arms and withdraw to Israel's pre-1967 borders. ²⁴ Thus having infuriated the Government and people of Israel, Schieber filed a new motion to reopen the deportation proceeding. He alleged that his anti-Israel activities guaranteed that he would be subject to persecution if deported since they are regarded as violations of Israel's Consorting With the Enemy Act and no better than treason. ²⁵ He also predicated the motion to reopen on the ground that the adverse Israeli reaction to these broadcasts generated guaranteed that deportation would create an unusual hardship for him. ²⁶ The motion to reopen was denied, as were petitions for review in the Second Circuit ²⁷ and for habeas corpus in the Southern District of New York. ²⁸ This litigation caused the postponement of deportation until May 1, 1974.

On April 23, 1974, Schieber filed still another petition to reopen, which precipitated the matter now before us. The Board, however denied a stay of deportation pending consideration of the petition. ²⁹ When, on May 1, 1974, INS for the first time attempted to physically deport Schieber, he slashed his wrists sufficiently to require hospitalization. On May 20, 1974, the Board took the action which became the subject of the instant petition for review. It rejected his eleventh motion to reopen the deportation proceeding but, sua sponte, granting him one last opportunity voluntarily to depart for any country that would admit him. ³⁰

Schieber then moved to Washington and began canvassing the embassies in search of a receptive county. ³¹ Meanwhile, INS held off deportation to give Schieber a reasonable time within which to find a haven. In August, the District Director gave Schieber one more (final) extension of time--until September 13, 1974, when the deportation order would be executed.

Quite predictably, Schieber then, on September 10, 1974, filed the petition for review by this court, and that, as we have said, had the effect of automatically staying deportation. ³² INS has moved to vacate the statutory stay and Schieber has opposed the motion. Additionally, Schieber has filed his brief on the merits together with a motion to hold the motion to vacate in abeyance pending review, and INS has presented its opposition to that motion.

II

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