The opinion of the court was delivered by: POLLAK
The procedural background for the current habeas corpus petition is that Mr. Castro was the subject of deportation proceedings initiated by the Immigration and Naturalization Service based on charges that, in May of 1991, Mr. Castro, an immigrant from Ecuador and a citizen of that country, was convicted in the Court of Common Pleas of Philadelphia County of the offense of possession with intent to deliver a Schedule II controlled substance in violation of the relevant Pennsylvania statute.
In a proceeding before an Immigration Judge, Mr. Castro was determined to be deportable on the basis of the uncontested allegation of Mr. Castro's criminal conviction. Further, the Immigration Judge denied Mr. Castro's application for discretionary waiver of deportation pursuant to Section 212(c) of the Immigration and Naturalization Act.
Mr. Castro was not represented by counsel during the proceedings before the Immigration Judge; the Immigration Judge advised Mr. Castro of his entitlement to counsel and continued the proceedings once to give Mr. Castro an opportunity to retain counsel. A further request for continuance with a view to trying to obtain funds with which to retain counsel was denied, and the proceedings before the Immigration Judge went forward with Mr. Castro representing himself.
The decision of the Immigration Judge was appealed to the Board of Immigration Appeals and, on February 24, 1995, the Board of Immigration Appeals issued a per curiam order. That order notes that Mr. Castro was appearing pro se. The order of the Board of Immigration Appeals is as follows:
The appeal filed by the respondent is dismissed. We have reviewed the record of proceedings, the immigration judge's decision, and the respondent's contentions on appeal. The respondent in this case filed a perfunctory appeal that does not address the principal basis of the immigration judge's analysis. We concur in the immigration judge's ultimate conclusion taking into consideration the respondent's employment history and minimal character references. The record contains no significant evidence of property ownership or community service. The appeal does not address in any meaningful fashion the issue regarding the respondent's virtual complete refusal to acknowledge any responsibility or culpability for his previous convictions. Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988); Matter of Edwards, Interim Decision 3134 (BIA 1990).
As we find that the immigration judge adequately and correctly addressed the issues raised on appeal, his comprehensive and well-reasoned decision is affirmed based upon and for the reasons set forth in that decision.
Shortly after the decision of the Board of Immigration Appeals, Mr. Castro -- now represented by retained counsel -- filed with the Court of Appeals for the Third Circuit a petition for review of the decision of the Board of Immigration Appeals. The petitioner also filed with the Court of Appeals a motion for a stay of deportation pending consideration by the Court of Appeals of the petition for review. The Court of Appeals denied the motion for stay of deportation.
The petitioner -- through counsel -- then petitioned the District Director of the Immigration and Naturalization Service for a stay of deportation. That petition (on a form I-246, annexed to which was a supplement to the motion to stay of three pages and an affidavit also of three pages, sixteen paragraphs, to be precise) of Mr. Castro alleged as the reasons for requesting stay of deportation -- I am referring here to Paragraph 7 of Form I-246:
Counsel is filing a Motion to Reopen alleging the ineffective assistance of counsel in that an attorney the respondent hired for an appeal to the BIA failed to file a brief on appeal. Also, the immigration judge failed to inform the respondent of his right to have live witnesses in support of his 212(c) application. Respondent is a 27 year lawful permanent resident of the United States, married to a USC, living with two USC minor children and working-supporting his family.
The supplement to the motion to stay recites in part:
Respondent will be filing a Motion to Re-open within 24 hours based upon:
a. The ineffective assistance of counsel due to the fact that his attorney failed to file a brief to the BIA.
b. The fact that the Immigration Judge failed to advise him that he could present live witnesses at the 212(c), including his wife who could testify to significant hardship to herself and her family if the respondent were deported.
c. The fact that the Immigration Judge failed to continue the 212(c) hearing to permit him to retain an attorney.
The supplement then goes on to recite the substantial equities of Mr. Castro in the deportation proceedings and, finally, states:
Respondent only wants a chance to litigate his substantial claims before the Third Circuit and the BIA, especially those regarding the ineffective assistance of counsel.
The next day, which was April 7, 1995, the District Director through his Assistant Director for Detention and Deportation, Theodore R. Nordmark, in a three-page letter dated April 7, 1995, denied the application for a stay of deportation. The copy of the letter from Mr. Nordmark to Mr. Castro, care of Mr. Morley, Mr. Castro's retained attorney, bears a handwritten notation: "Called Mr. Morley's office 4/7/95 at 9:20 a.m., they were informed of denial."
Mr. Morley has represented to this court on argument today that, prior to 9:20 on the morning of April 7, Mr. Morley submitted to the office of the District Director a copy of the motion to reopen, which was intended to be filed with the Board of Immigration Appeals. The record does not establish one way or another whether the delivery of these materials to the office of the District Director was, in fact, accomplished prior to Mr. Nordmark's signature on behalf of District Director Blackman of the April 7, 1995 letter.
For the purposes of the habeas corpus application, which is the subject of the current proceeding, I find it unnecessary to determine whether the petition for review [i.e., the motion to reopen] was actually in the District Director's office prior to the issuance of the decision by Mr. Nordmark for Mr. Blackman denying the application for a stay of deportation.
I should add, parenthetically, that it also appeared at this morning's argument that there is some uncertainty as to whether the petition for review has been "filed" as of yet with the Board of Immigration Appeals. However, the respondents have made it plain that they do not conceive that the question whether the petition to reopen has been filed in some formal sense is of any legal consequence, since it is evident that Mr. Morley on Mr. Castro's behalf has been submitting the motion and copies to the offices of the Immigration and Naturalization Service, including the Board of Immigration Appeals and, apparently, including the office of the Immigration Judge in Baltimore and copies to the District Director, for approximately two weeks.
So, I have advised the parties that I am proceeding on the basis of the assumption that the motion to reopen has effectively been presented to the Immigration and Naturalization Service in some aspect of its multi-faceted entity and I understand that to be acknowledged by the respondents.
I have added this parenthetical note simply to try to clear up an otherwise untidy aspect of the record.
Subsequent to the denial by Assistant District Director Nordmark for District Director Blackman of Mr. Castro's application for a stay of deportation, Mr. Castro, through his counsel, Mr. Morley, filed the habeas corpus petition which is currently before the court. I should note that the petition in its form as filed also includes assertions of jurisdictional reliance on Section 1983 of Title 42 and provisions of the Administrative Procedure Act, but those reliances have been withdrawn by counsel and what remains is the application for habeas corpus.
The parties appear to be in agreement that this court has such jurisdiction, so I will not belabor the issue. Suffice it to say that the case law appears quite uniformly to support such jurisdiction. The jurisdiction in question depends on 8 U.S.C. § 1105(a)(10); the statutory provision which is cited is one which vests in the district court jurisdiction to review by habeas corpus certain categories of orders entered pursuant to the Immigration and Naturalization Act.
The inclusion within the array of orders thus reviewable of denials within the Immigration and Naturalization Service of motions for a stay of deportation is recognized by cases as recent as Khalaj v. Cole, 46 F.3d 828 (8th Cir. 1995) and Garay v. Slattery, 23 F.3d 744 (2nd Cir. 1994), and those cases, in turn, refer to earlier authority.
There has been no flat statement to that effect by our Court of Appeals, so I think it appropriate to refer to what authority there is. In Acosta v. Gaffney, 558 F.2d 1153 (3rd Cir. 1977), Judge Maris, for the Court of Appeals, concluded that there was jurisdiction in the district court to review a denial by the District Director of Immigration in New Jersey of an application to stay deportation. Judge Maris predicated the court's jurisdiction on 8 U.S.C. § 1329. He did not address habeas corpus jurisdiction as such, but it appears from his discussion of 8 U.S.C. § 1329 that he was pointing to that as a jurisdictional section, which was more precisely tailored to matters arising under the Immigration and Naturalization Act than the general federal question jurisdictional statute, 28 U.S.C. § 1331.
In 1985, in Reid v. Immigration and Naturalization Service, 766 F.2d 113 (3d Cir. 1985), the Court of Appeals, through Judge Becker, addressed the question of judicial review of a decision of the Board of Immigration Appeals, denying the motion for a stay of deportation pending consideration by the Board of Immigration Appeals of a motion to reopen the deportation proceedings. In footnote 9, on pages 116 to 117, Judge Becker considers the potential implications of a conclusion that a court of appeals does not have jurisdiction to review the denial of the stay and, in that connection, makes suggestions that possibly the deficiency could be remedied in an extraordinary case by exercise of the authority vested in federal courts by the All Writs Act, 28 U.S.C. § 1651(a). The evident thought is that the All Writs Act would give authority to a court of appeals to protect its own potential jurisdiction by reviewing a denial of a motion for a stay of deportation, where the effect of that denial might be to send the alien away from the United States before the Board of Immigration Appeals and, potentially, ultimately, the court of appeals could consider the merits of a motion to reopen in the Board of Immigration Appeals.
The tenor of Judge Becker's footnote could, arguably, by negative implication, be construed as an implication that district courts would be without authority to address a denial by the Immigration and Naturalization Service, in whatever form, of a motion to stay deportation. There is, however, no express discussion by Judge Becker in his footnote of the authority of a district court in the premises; the entire footnote is, in terms, addressed to the authority of a court of appeals. The footnote is clearly an important and thoughtful one, but it is dictum that addresses the authority of the court of appeals and not the authority of the district court.
Strong evidence that Reid should not be regarded as cutting against the otherwise uniform judicial pronouncements of the existence of habeas corpus jurisdiction in the district court to review denials of motions for a stay of deportation is provided by the Third Circuit's decision a year after Reid in Matter of Ghalamsiah, 806 F.2d 68 (3d Cir. 1986). There, the Third Circuit was reviewing a decision by the district court for the District of New Jersey, which released the applicant, Ghalamsiah, on bail pending a motion to reopen deportation proceedings and stay deportation. Ghalamsiah came before the district court on an application for habeas corpus. The district court concluded that a grant of a stay was appropriate in view of its determination that there had been error in the agency that denied the requested stay. The Court of Appeals notes, in footnote 3, "The INS does not appeal from the decision to grant the stay itself. Although the INS does assert that the district court erred in that decision, it acknowledges that Ghalamsiah is likely to get a stay of deportation in any event, because the BIA may act on the petition to reopen deportation proceedings before an appeal of a decision on the merits could be heard." And the footnote winds up by reciting that, "The INS thus appeals only the order of the district court to release Ghalamsiah from custody and to set his bail."
The Court of Appeals agreed with the Service that it was beyond the authority of the district judge to release Ghalamsiah on bail and so ordered, directing that the order of the district court with respect to Ghalamsiah's release on bail be vacated and the case remanded to the district court with directions to remand the proceedings to the district director for disposition of Ghalamsiah's application for release on bail.
Thus, the Third Circuit did not disturb the district court's action with respect to the stay. To be sure, the Court of Appeals was not asked to address the propriety of that determination, notwithstanding that the INS felt that the determination of the district judge on the appropriateness of the stay was in error. But the result of the case is an exercise by the district court of jurisdiction to review the denial of a motion for a stay of deportation by one of the entities of the INS and that assertion of jurisdiction by the district court was not disturbed by the Third Circuit. So, at ...