YUN KIL MOON, PETITIONER V. IMMIGRATION AND NATURALIZATION SERVICE No. 88-1527 In The Supreme Court Of The United States October Term, 1988 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The Respondent In Opposition TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 3a-5a) is unpublished, but the decision is noted at 865 F.2d 262 (Table). The decision of the Board of Immigration Appeals (Pet. App. 1a-2a) is unreported. JURISDICTION The judgment of the court of appeals was entered on December 19, 1988. The petition for a writ of certiorari was filed on March 16, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals had jurisdiction, under 8 U.S.C. 1105a, to review the Board of Immigration Appeals' denial of petitioner's request for a stay of deportation pending the Board's consideration of his motion to reopen his deportation proceedings. STATEMENT On June 19, 1982, petitioner entered the United States as a temporary visitor. He remained beyond the date authorized by the Immigration and Naturalization Service (INS) without permission. On September 1, 1983, petitioner was served with an order to show cause why he should not be deported as an overstay. In September 1984, at his deportation hearing, petitioner conceded deportability and was granted the privilege of voluntary departure in lieu of deportation on or before January 1, 1985. App., infra, 1a. Petitioner failed to depart, however, within the authorized voluntary departure period. On November 22, 1984, petitioner married a naturalized United States citizen. Petitioner's wife filed a visa petition on petitioner's behalf, which the INS subsequently approved. Thereafter, petitioner filed a motion to reopen his deportation proceedings with the immigration judge (IJ), in order to adjust his status to that of a lawful permanent resident under 8 U.S.C. 1255. On August 28, 1987, the IJ denied the motion. The IJ found that petitioner's marriage was fraudulent and had been annulled and that petitioner had attempted at least twice earlier to procure a visa by fraud. App., infra, 3a-5a. On April 19, 1988, the INS notified petitioner to appear for deportation in Oakdale, Louisiana, on May 3, 1988. In the interim, petitioner requested an extension of his reporting date for deportation, stating that he was unable to obtain a passport by May 3, 1988. The INS granted petitioner's request. On May 10, 1988, petitioner filed a second motion to reopen, again for the purpose of applying for an adjustment of status. On June 27, 1988, the IJ denied this motion on the basis that circumstances had not changed materially since the earlier denial. App., infra, 6a. On July 8, 1988, the IJ denied petitioner's request to stay his deportation pending an appeal to the Board of Immigration Appeals of the denial of the motion to reopen. Petitioner then renewed before the Board his request for a stay of deportation. On July 13, 1988, the Board denied petitioner's request for a stay pending consideration of his administrative appeal, concluding from the record that "there is little likelihood that the appeal, when received, will be sustained." Pet. App. 2a. On July 14, 1988, petitioner filed a petition for review in the United States Court of Appeals for the Sixth Circuit, seeking review of the Board's denial of a stay of deportation. On December 19, 1988, the court dismissed the petition for review for lack of jurisdiction. Pet. App. 3a-5a. The court explained that "(t)he denial of a motion to stay deportation pending a ruling on a motion to reopen is an interim order not reviewable by an appellate court under 8 U.S.C. Section 1105a." Pet. App. 4a. As of the date of this filing, petitioner's motion to reopen is still pending before the Board. ARGUMENT Despite the consistent rejection by the courts of appeals of petitioner's contention, and the absence of support for his position in the text of the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., petitioner insists that he is entitled to seek direct review in the court of appeals of the Board's denial of a stay of deportation pending its ruling on his motion to reopen. Petitioner's contention is without merit and does not warrant further review. Petitioner argues (Pet. 12-14) that 8 U.S.C. 1105a(a) (Section 106(a) of the Immigration and Nationality Act) provides the courts of appeals with jurisdiction to review the denial of his request for a stay of deportation. Section 1105a states that the Hobbs Act, 28 U.S.C. 2341 et seq., which vests exclusive jurisdiction in the courts of appeals to review certain administrative orders, "shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation * * * against aliens * * * pursuant to administrative proceedings under (section 242(b)) of this (Act)." /*/ Section 1105a also provides that pending the determination of an alien's petition for review of such a final order of deportation by a court of appeals, the alien's deportation shall automatically be stayed. 8 U.S.C. 1105a(a)(3). Congress provided for review of a "final order of deportation" in the courts of appeals in order "to expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts." Foti v. INS, 375 U.S. 217, 226 (1963); Cheng Fan Kwok v. INS, 392 U.S. 206, 214 (1968). In Cheng Fan Kwok v. INS, this Court held that the denial of a stay of deportation by a district director of the INS was not reviewable in the courts of appeals under Section 1105a. 392 U.S. at 212. Concluding that a district director's denial of a stay of deportation "neither is a final order of deportation, nor is it * * * 'made during the same proceedings' in which a final order of deportation has been issued", the Court held that it was not covered under Section 1105a. 392 U.S. at 213 n.11. The Court stressed that Section 1105a(a) does not "encompass 'all orders' entered pursuant to Section 242(b) proceedings; it is limited to 'final orders of deportation.'" 392 U.S. at 213-214 n.11. Just as the district director's denial of a stay in Cheng Fan Kwok was not a "final order of deportation," the Board's discretionary denial of a stay pending its ruling on a motion to reopen is also not a "final order of deportation" within the scope of Section 1105a. No decision of this Court supports the construction of Section 1105a that petitioner urges. Foti v. INS, supra, holds that a "final order of deportation" under Section 1105a includes the INS's "denial of discretionary relief, made during the same proceedings in which deportability is determined, which effectively terminates the proceeding." 375 U.S. at 224. On this basis, the Court in Foti decided that the denial of suspension of deportation during an alien's deportation proceedings was reviewable under Section 1105a. The Board's denial of a stay of deportation, however, pending its ruling on a motion to reopen does not "effectively terminate the proceeding," because the motion to reopen is still pending. If that motion is denied by the Board, the Board's action will then be reviewable under Section 1105a. Giova v. Rosenberg, 379 U.S. 18 (1964) (per curiam); Cheng Fan Kwok, 392 U.S. at 211. The courts of appeals have uniformly rejected the argument that petitioner advances in this Court. In an unbroken line of cases stemming from Reyes v. INS, 571 F.2d 505 (9th Cir. 1978), the courts have held that a denial of a stay of deportation while a motion to reopen is pending is not reviewable under Section 1105a. See Gando-Coello v. INS, 857 F.2d 25, 26 (1st Cir. 1988) (noting that the other circuits "speak with one voice" on this question); Reynolds v. United States Department of Justice INS, 846 F.2d 1288, 1290 (11th Cir. 1988); Reid v. INS, 766 F.2d 113, 115 (3d Cir. 1985); Ramirez-Osorio v. INS, 745 F.2d 937 (5th Cir. 1984) (denial of petitioner's stay request by Board is not an appealable order); Bonilla v. INS, 711 F.2d 43 (5th Cir. 1983); Kemper v. INS, 705 F.2d 1150 (9th Cir. 1983) (denial of motion to stay deportation proceedings is interim order and not reviewable under Section 1105a); Diaz-Salazar v. INS, 700 F.2d 1156, 1159 (7th Cir.) (denial of a stay of deportation by the Board is not a reviewable final order), cert. denied, 462 U.S. 1132 (1983). Not only is petitioner's argument inconsistent with the plain language of Section 1105a and the weight of authority, it is also squarely at odds with Congress's goal in enacting that provision: "to expedite the deportation of undesirable aliens by preventing successive dilatory appeals" (Foti, 375 U.S. at 226). Indeed, petitioner's construction of Section 1105a would produce precisely the opposite result. Instead of expediting deportations, petitioner's approach would only encourage dilatory tactics by aliens seeking delay. This case well illustrates the problem. Petitioner is already under a final order of deportation, from which he did not seek judicial review. As a matter of discretion, the INS allows aliens to submit motions to reopen in order to take account of exceptional cases in which relief from an order of deportation is warranted. See INS v. Abudu, 108 S.Ct. 904, 907-913 (1988). But the filing of a motion to reopen does not stay the alien's deportation, unless a stay is specifically granted in the discretion of the Board or an authorized INS officer. 8 C.F.R. 3.8(a). Petitioner's approach would invert that scheme by providing him with an automatic stay of deportation while the court considers his petition for review of the discretionary denial of a stay. If such an automatic stay were available merely by filing with the Board a motion to reopen together with a request for a stay of deportation, and then by petitioning the court for review of the Board's denial of such a stay, it is apparent that many frivolous motions to reopen would be submitted solely to postpone the alien's time of leaving this country. Cf. INS v. Rios-Pineda, 471 U.S. 444, 450 (1985) ("One illegally present in the United States who wishes to remain already has a substantial incentive to prolong litigation in order to delay physical deportation for as long as possible."). Petitioner's view of Section 1105a, therefore, harbors a powerful potential for protracting an alien's stay in this country beyond the date of a lawful order of deportation. In Bonilla v. INS, 711 F.2d at 44, the court described the abuses that petitioner's view of Section 1105a would invite: An alien files a motion to reopen his order of deportation and at the same time requests a stay. When the stay is denied he petitions for review of the denial of stay in the court of appeals, thereby obtaining an automatic stay. As soon as the motion to reopen is denied, the alien files another motion to reopen and another request for a stay, and then petitions for review of the denial of this second request for a stay, thereby obtaining an automatic stay once again. As long as a petition for review is pending in this court, a series of automatic stays will bar deportation of the alien, regardless of the merits of his case. We do not here, and caution that we will not in the future, tolerate this sort of sharp dealing. See also Gando-Coello v. INS, 857 F.2d at 26. Such repeated cycles of administrative and judicial review would be freely available if petitioner's argument were sustained. Nothing in the statutory scheme justifies such a drastic departure from Congress's intent "to abbreviate the process of judicial review of deportation orders in order to frustrate certain practices * * * whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts." Foti, 375 U.S. at 224. There is all the less reason to twist the language of Section 1105a to encompass petitioner's case because petitioner could seek a stay of deportation from the INS District Director, and, if that is denied, pursue a remedy in district court. In Cheng Fan Kwok, this Court indicated that, "In situations to which the provisions of (Section 1105a(a)) are inapplicable, the alien's remedies would, of course, ordinarily lie first in an action brought in an appropriate district court." 392 U.S. at 210. See Gando-Coello v. INS, 857 F.2d at 26. In such an action, petitioner could attempt to persuade a district judge that his claim has sufficient merit to warrant restraining the INS from executing its lawful order of deportation during the pendency of his motion to reopen. Petitioner has chosen not to pursue that avenue. See Pet. 22-23. There is no reason, however, to make available to him the automatic stay provisions of Section 1105a when he is not seeking review of a final order of deportation. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General JOHN R. BOLTON, JR. Assistant Attorney General ROBERT L. BOMBAUGH ALICE M. SMITH Attorneys MAY 1989 /*/ Section 242(b) of the act, 8 U.S.C. 1252(b), establishes administrative hearing procedures for the entry of a deportation order. See generally Landon v. Plasencia, 459 U.S. 21, 26-27 (1982). APPENDIX