appeal, concluding that petitioner had failed to sustain his burden of establishing that he would be persecuted or that he had a well-founded fear of persecution upon deportation to Iran. The BIA granted petitioner a voluntary departure until October 21, 1983, but petitioner failed to leave as ordered. A warrant of deportation was issued on October 22, and petitioner was advised to surrender for deportation on November 29, 1983.
On November 14, 1983, an attorney for petitioner called the INS and stated that he was trying to get a visa for his client to enter Kuwait where petitioner's two brothers were residing. A second call to the INS was made on November 15, but no request for a stay of deportation was made. Petitioner did not show up on the November 29 surrender date. On April 26, 1984, petitioner's case was referred to the investigations department of the INS in order to locate petitioner for deportation; on May 10, he was located and brought to the INS to effect his removal. On May 17, the INS requested from the Washington office the travel document needed to effectuate deportation, but also told petitioner that if he could obtain official permission to enter another country by the time his travel document arrived, that the INS would send him to that country instead of Iran.
On June 12, 1984, petitioner sought the Court's habeas corpus jurisdiction in requesting a stay of deportation. Noting that petitioner had let lapse the six month time period for direct appeal to the Third Circuit Court of Appeals from the adverse decision of the BIA, we held that administrative remedies were nonetheless available which petitioner had failed to exhaust. The petition for a writ of habeas corpus was therefore dismissed for lack of subject matter jurisdiction.
Petitioner quickly sought a stay of deportation from the District Director, and at the same time filed a motion to reopen with the BIA, asserting that he had "new" evidence to present. This evidence, not made known to the INS or the BIA in prior proceedings, was that petitioner had been since July, 1983, a member of an Islamic group devoted to the overthrow of the Khomeini regime. Petitioner also reported to the District Director that since March, 1984, the Khomeini government had been searching for his brother in order to try him in an Islamic Court. Convinced that this proceeding would be a sham, petitioner's brother fled to either Kuwait or Saudi Arabia. Petitioner stated that his mother, who still lives in Iran, reports that Iranian security police have repeatedly inquired as to the whereabouts of both petitioner and his brother. Petitioner claimed that upon information and belief he had been "positively identified by the Khomeini regime as a certain target for barbaric persecution and would be summarily executed if he were ever unfortunate enough to enter its jurisdiction." Petitioner's failure to reveal this information until this late date was attributed to the fact that he was terrified that both he and his family would be actively persecuted. Petitioner claimed that he was unable to verify this information because he was currently incarcerated in an INS alien detention facility.
The District Director denied the application for a stay of deportation for a number of reasons. First, he found that it was "worth noting" that petitioner had failed to supply any evidence to substantiate the claims that he would be executed or persecuted upon his return to Iran. Second, he determined that petitioner had had ample time to obtain a visa to enter another country, and therefore a stay was not justified in order to allow more time for this purpose. Finally, the District Director reported that on June 14, 1984, petitioner called the INS deportation officer John Scott and requested that every effort be made to obtain a travel document so he could go home to Iran -- in view of this, the District Director voiced "serious doubts regarding the genuineness of [petitioner's] fear of persecution or dying at the hands of the Khomeini Regime should he return to Iran."
Petitioner, as mentioned above, also filed a motion on June 13, 1984, to reopen his deportation proceeding with the BIA. In connection with this motion, petitioner requested by telephone a stay of deportation from the BIA pursuant to 8 C.F.R. § 242.22 (1984). The BIA denied by telephone on June 14 the request for the stay, on the ground that there was little likelihood that the pending motion to reopen would be granted. Petitioner then returned to this Court.
It is not disputed that our habeas corpus jurisdiction extends to the review of the District Director's denial of petitioner's request for a stay, nor do the parties disagree that the proper standard of review is whether the District Director's decision was an abuse of discretion. See Cheng Fan Kwok. v. INS, 392 U.S. 206, 20 L. Ed. 2d 1037, 88 S. Ct. 1970 (1968); Foti v. INS, 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963).
We now hold that there was an abuse of discretion.
Were not a man's life at stake, we could find no abuse of discretion by the District Director, particularly given the narrow scope of review this standard entails. It is undeniable that petitioner repeatedly refrained from using available administrative and judicial channels for obtaining the relief he now seeks: he failed to appeal the BIA's final deportation order; he failed to obtain a visa to enter a country other than Iran, even after the INS told him that this was acceptable; and he attempted to get relief from this Court without having exhausted any administrative remedies. In addition, petitioner has consistently refused to provide the INS with requested information relevant to his lawful status in this country, just as he has ignored its orders to surrender for deportation. In almost all circumstances petitioner's pattern of neglect and noncompliance should preclude any last minute effort to invoke the discretionary powers of the INS.
And yet it is a man's life that may be the price of our decision today. Where consequence is at its apex, discretion must be correspondingly narrowed. Petitioner claims that he has information to present to the BIA in support of his pending motion to reopen that has not been previously disclosed -- information that supports his contention that if he is deported to Iran he will be summarily executed. By denying petitioner's request for a stay of deportation, the District Director deprived petitioner of the opportunity to have the BIA even consider his motion to reopen.
We hold that this was an abuse of discretion.
We cannot condone petitioner's methods of staving off deportation. But we also cannot let the rigors of administrative procedure reshape our ideas about life and death. We will stay the deportation of petitioner pending resolution of his present motion to reopen.
For the reasons stated in the Court's Opinion filed herewith;
It is on this 9 day of July, 1984,
ORDERED that petitioner's deportation be, and it hereby is, stayed pending resolution by the Board of Immigration Apepals of petitioner's motion to reopen; and it is further
ORDERED that in the event that the Board of Immigration Appeals denies petitioner's motion, and in the event petitioner chooses to appeal that decision to the Court of Appeals for the Third Circuit, this stay will remain effective until the Court of Appeals for the Third Circuit has an opportunity to grant or deny a stay pending appeal.