Petition for Review of an Order of the Board of Immigration Appeals (File No. A34 320 468).
Gibbons, Higginbotham, and Becker, Circuit Judges.
Petitioner Ayrton O. Reid seeks review of a decision of the Board of Immigration Appeals ("BIA") denying his motion for a stay of deportation pending consideration of his motion to reopen deportation proceedings. The INS has moved to dismiss the petition for want of jurisdiction on the ground that a BIA decision denying a stay of deportation is not a "final order of deportation" reviewable in this court pursuant to section 106(a) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1105a(a). We agree with the INS that we lack jurisdiction over the petition for review.
On April 9, 1975, an Immigration Judge decided that Reid was deportable pursuant to 8 U.S.C. § 1251(a) (11). After reviewing this decision, the BIA entered a final deportation order on March 28, 1979. This court dismissed the petition for review of the BIA's order on December 3, 1979. Reid v. Immigration and Naturalization Service, 612 F.2d 574 (3d Cir. 1979) (judgment order). Reid's deportation was then delayed when he filed several applications for a stay and a motion to reopen the deportation proceedings.*fn1 The BIA denied Reid's motion to reopen, whereupon Reid petitioned this court for review, asserting that he was entitled to discretionary relief pursuant to 8 U.S.C. §§ 1182(c) & 1251(f). We denied the petition for review on February 28, 1985. Reid v. Immigration and Naturalization Service, 756 F.2d 7 (3d Cir. 1985).*fn2
While his petition for review was pending before this Court, Reid filed with the BIA on February 1, 1985, a motion to reopen and to stay deportation. Reid sought discretionary relief pursuant to 8 U.S.C. § 1254(a)(2).*fn3 On March 14, 1985, the BIA denied Reid's request for a stay.*fn4 Four days later, Reid filed a petition for review of the BIA's denial of a stay of deportation arguing that, because it would lead to his immediate departure from the country and the constructive withdrawal of his motion to reopen, see infra at 115, the BIA's action was "the 'functional equivalent' of a final denial of his motion to reopen . . ." Memorandum of Law in Opposition to Motion to Dismiss, at 1.
On May 9, 1985, less than two weeks after expedited argument was heard in this case, the BIA denied Reid's motion to reopen. We recognize that, because the BIA has rendered a decision on the merits, Reid's claim that the BIA gave inadequate consideration to his motion for a stay of deportation pending this decision is no longer live: Reid was not, in fact, deported during the pendency of his motion to reopen. Nevertheless, we conclude that the BIA's decision on the merits does not render this case moot because the question raised by the stay is one that is "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911). In a case involving a single plaintiff, rather than a class action, "the capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality." City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 1669, 75 L. Ed. 2d 675 (1983). Because Reid may seek discretionary relief from the BIA in the future, there is a reasonable chance that the claim for relief he asserts in this petition will, if left unresolved, be before this court again; it is, therefore, capable of repetition under the Lyons test.
Based on our experience in considering Reid's two petitions for review of BIA denials of motions for a stay of deportation, we also believe that the claim will continue to evade our review if it is not resolved in this proceeding. At the time we decided Reid, 756 F.2d 7, we thought that any new petition for review of a stay would not evade review if we expedited its disposition. See id. at 8 n.2; Motion to Dismiss Petition for Review, at 6 (discussing Court's suggestion that any new petition for review be scheduled on an expedited basis). We now recognize, given our experience in the pending matter, that the important jurisdictional question before us will continue to evade our review if it is not decided at this time. We therefore hold that the issue raised by Reid's petition is not moot.*fn5 Accordingly, we will consider whether we have jurisdiction under § 1105a(a) to consider the merits of the petition.
The INS has moved to dismiss Reid's petition for review asserting that this court has no jurisdiction because a BIA decision denying a stay is not a "final order of deportation" reviewable in this court pursuant to section 106(a) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1105a(a). The INS stresses that, because an order of deportation is automatically stayed when a petition for review is pending in a court of appeals, see 8 U.S.C. § 1105a(a) (3), acceptance of Reid's position would permit deportable aliens to file successive petitions for review of BIA decisions to deny requests for stays of deportation interposed solely for the purpose of obtaining the benefit of the automatic stay, thereby indefinitely delaying implementation of valid deportation orders. Reid rejoins that an order denying a stay under these circumstances is the functional equivalent of a final denial of his motion to reopen because, in its wake, he must leave the country and because his petition is then deemed withdrawn. See 8 U.S.C. § 1105a(c); 8 C.F.R. § 3.2 (1985); see also Newton v. Immigration and Naturalization Service, 622 F.2d 1193, 1195 (3d Cir. 1980) (dismissing petition for review of an alien who voluntarily departed the United States before the petition was filed and whose deportation had not resulted from a denial of due process).
Whether or not Reid's argument has force, see infra at 116 n.9, for the reasons that follow the conclusion is ineluctable that the BIA's denial of a motion for a stay is not a final order and that we therefore lack jurisdiction under § 1105a(a) to consider Reid's petition.
First, this conclusion is supported by the Supreme Court's dictum in Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 216, 20 L. Ed. 2d 1037, 88 S. Ct. 1970 (1968). In Cheng Fan Kwok, the Court specifically held that courts of appeals have no jurisdiction to review a district director's denial of a stay of deportation because jurisdiction under § 1105a(a) "embrace[s] only those determinations made during a proceeding conducted under § 242(b) [of the Act], including those determinations made incident to a motion to reopen such proceedings." Id.*fn6 Given this holding, the Court did not need to resolve whether the denial of a motion for a stay by a district director is a "final order" and therefore within the jurisdictional grant of § 1105a(a). Nevertheless, the Court suggested in a footnote that the denial of a stay of deportation is not a final order. See id. at 212 n. 11 ("it must be reiterated that [§ 1105a(a)] does ...