Zardui-Quintana v. Richard

• Decision Date: 02 August 1985
• Docket Number: 85-8361,Nos. 85-8299,ZARDUI-QUINTANA,s. 85-8299
• Citation: 768 F.2d 1213
• Parties: Dori, et al., Petitioners-Appellees, v. Louis M. RICHARD, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1213

768 F.2d 1213

Dori ZARDUI-QUINTANA, et al., Petitioners-Appellees, v. Louis M. RICHARD, et al., Respondents-Appellants.

Nos. 85-8299, 85-8361.

United States Court of Appeals,

Eleventh Circuit.

Aug. 2, 1985.

Nina R. Hickson, Asst. U.S. Atty., Atlanta, Ga., Lauri S. Filppu, Madelyn Johnson, Office of Immigration, Dept. of Justice, Washington, D.C., for respondents-appellants.

William C. Thompson, Jay I. Solomon, Atlanta, Ga., for petitioners-appellees.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and VANCE, Circuit Judges, and ATKINS ^*, District Judge.

TJOFLAT, Circuit Judge:

I.

Petitioners are forty-four Mariel Cubans who arrived in the United States illegally as part of the 1980 Freedom Flotilla from Cuba. Many had long records of serious criminal activity in their homeland; all subsequently committed serious crimes in the United States, including murder, rape, armed robbery, and narcotics offenses. ¹

The Immigration and Naturalization Service (INS), believing that the petitioners were not entitled to enter the United States, instituted exclusion hearings, pursuant to 8 U.S.C. Sec. 1226 (1982) and 8 C.F.R. Sec. 236 (1985). In each case, the immigration judge determined that the petitioners were excludable aliens and should be deported to Cuba. ² Some, but not all, of the forty-four petitioners, pursued appeals from this decision to the Board of Immigration Appeals (BIA). ³

Shortly thereafter, the United States and Cuba reached an accord whereby a portion of the Marielitos, including the petitioners, would be returned to Cuba in exchange for political prisoners in Cuban jails. The United States government notified the forty-four petitioners that their deportation was imminent. Petitioners, however, resisted deportation, contending that they would be mistreated in Cuba because of their participation in the Mariel Freedom Flotilla.

In an effort to prevent deportation, petitioners filed, pursuant to 8 C.F.R. Sec. 208.11 (1985), individual motions to reopen their exclusion proceedings, with either an immigration judge or the BIA, in which they argued that they were entitled to asylum in the United States or that they should have their deportation withheld. In addition, each petitioner requested the INS district director ⁴ for a stay of deportation pending the disposition of such motions to reopen their exclusion proceedings. The district director denied the motions; he concluded that the immigration judge or the BIA would deny petitioners' motions to reopen exclusion hearings on the grounds that each of the excludable aliens was ineligible for asylum or withholding of deportation because of his prior criminal conduct. See 8 U.S.C. Sec. 1253(h)(2)(B) (1982) and 8 C.F.R. Sec. 208.8(f)(iv) (1985). ⁵

Petitioners filed a joint habeas corpus petition in the United States District Court for the Northern District of Georgia claiming that the district director acted unlawfully in denying their motions for stays, ⁶ and requesting the court to enjoin the Government from deporting them. The district court granted injunctive relief in the form of a temporary restraining order, ⁷ because it found that the forty-four petitioners had shown a substantial likelihood of success on the merits of their claim that the district director abused his discretion in finding them ineligible for withholding of deportation under 8 U.S.C. Sec. 1253(h)(2)(B) or (C) (1982). ⁸ Specifically, the district court found it likely that the district director had abused his discretion by: (1) failing to make separate findings, pursuant to 8 U.S.C. Sec. 1253(h)(2)(B) (1982), that an alien had been convicted of a particularly serious crime in the United States and that he constituted a danger to the community; and (2) failing to make sufficient subsidiary findings of fact to support his legal conclusions that the aliens had either committed a particularly serious crime in the United States or had committed a serious non-political crime prior to entering the United States. The Government immediately appealed the district court's order enjoining petitioners' deportation, pursuant to 28 U.S.C. Sec. 1292(a)(1) (1982). Because we find that the district director lacked the authority to grant stays of deportation in this case, we decline to address either of these questions. ⁹

II.

A.

We note at the outset that a district court's grant of a preliminary injunction is reviewable only for abuse of discretion. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983). That discretion is guided by four prerequisites. The movant must show: (1) a substantial likelihood that he will ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest. Id. at 1519; West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 956 (11th Cir.1982); Southern Monorail Co. v. Robbins & Myers, Inc., 666 F.2d 185, 186 (11th Cir.1982). "The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant 'clearly carries the burden of persuasion' as to the four prerequisites." United States v. Jefferson County, 720 F.2d at 1519 (quoting Canal Authority v. Callaway, 489 F.2d 567, 573 (5th Cir.1974)). The lower court abused its discretion in granting a preliminary injunction in this case because petitioners failed to make the requisite showing that they were likely to succeed on the merits.

B.

An investigation of the statutory and regulatory framework of exclusion procedures shows that the powers of the district director to stay the deportation of excluded aliens is limited to special circumstances not present in this case. Further, the district director is entirely powerless to grant asylum or withhold deportation once exclusion proceedings have commenced. Petitioners, therefore, had no chance to prevail on the merits of their claim that the district director should have stayed their deportation, and thus the district court abused its discretion in granting a preliminary injunction.

We begin our discussion with an examination of the powers and duties of the district director ¹⁰ and the immigration judge in the context of exclusion proceedings. An alien arriving at a port of the United States may be examined by an immigration officer. 8 U.S.C. Sec. 1225(a) (1982); 8 C.F.R. Sec. 235.1 (1985). If the examining officer is unable to find that the alien is "clearly and beyond a doubt" entitled to enter into the United States, he must detain him for further inquiry before an immigration judge. ¹¹ Pursuant to 8 U.S.C. Sec. 1226(a) (1982) and 8 C.F.R. Sec. 236.2 (1985) the immigration judge conducts a formal hearing, including the presentation of evidence and testimony under oath. The immigration judge's decision as to exclusion is final, 8 C.F.R. Sec. 236.6 (1985), unless the alien or the district director appeals to the BIA. If the BIA finds the alien excludable, the alien's only avenue of review is before the appropriate district court. 8 U.S.C. Sec. 1105a(b) (1982). Once the determination to exclude an alien becomes final, the district director in charge of the alien must immediately deport him. 8 U.S.C. Sec. 1227(a) (1982); 8 C.F.R. Sec. 237 (1985). The district director may only exercise his discretion not to deport an excluded alien in two limited situations: (1) where he concludes that immediate deportation is not practicable or proper (for example, where transportation cannot be arranged), ¹² or (2) where the Attorney General determines that the alien's testimony on behalf of the United States is necessary for prosecution of violations of the law. 8 U.S.C. Sec. 1227(a), (d) (1982); 8 C.F.R. Sec. 237.1 (1985). ¹³

In the case before us, petitioners were determined to be excludable by a final administrative order. Thus, the power of the district director to grant a stay of deportation was limited to situations where deportation would be impractical or the Attorney General has indicated that the alien's testimony is needed in a criminal prosecution. Neither instance was involved in this case. Indeed, it was because Cuba had agreed to receive petitioners, and the United States had made arrangements to transport them to Cuba, that the petitioners moved to reopen their exclusion hearings. As such, the motions before the district director to stay the deportation were properly denied. ¹⁴ This is not to say that a stay can never be granted in the deportation of excluded aliens. The immigration judge and the BIA have the power to stay the deportation of an excluded alien upon a motion to reopen the exclusion proceeding. ¹⁵ Although the filing of such a motion does not automatically stay the execution of the outstanding exclusion order, the judge (or the BIA) having jurisdiction over the motion may, in his discretion, grant a stay of deportation. 8 C.F.R. Sec. 103.5 (1985). That no such stays were granted in this case underscores the belief of the immigration judge that the petitioners' requests for asylum and withholding of deportation were frivolous.

Further, in our view of the statutory and regulatory framework of exclusion proceedings and asylum or withholding of deportation requests, the district director was unable to grant any relief other than a stay of deportation for the limited purposes mentioned above. The Immigration and Nationality Act contains two provisions whereby aliens may resist deportation to countries where their life or freedom would be threatened because of their political opinion: 8 U.S.C. Sec. 1158 (1982), ¹⁶ providing that an alien subject to exclusion from the United States may apply for asylum, and 8 U.S.C. Sec. 1253(h) (1982), ¹⁷ preventing the deportation of an alien to a country if the Attorney...