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ANYANWU v. INS

October 16, 1986

Evaristus Anyanwu and Patricia Anyanwu, Petitioners
v.
Immigration and Naturalization Service , Respondent



The opinion of the court was delivered by: STERN

Petitioners ask this Court to overturn the Immigration and Naturalization Service (INS) Deputy District Director's denial of their request to stay deportation pending the outcome of their motion to reopen proceedings, currently before an Immigration judge. Petitioners claim that their lives will be threatened if they are deported to Nigeria. We will grant petitioner's request.

 FACTS

 Evaristus Anyanwu is a journalist from Nigeria who, along with his wife, was legally admitted to the United States in January 1981. Petitioner was scheduled to attend Bloomfield College in Bloomfield, New Jersey, as a student of mass communications. In May 1985, petitioner was found to be in violation of the terms of his admission since he had been employed without permission from the INS. In September 1985, petitioners were adjudged to be deportable by an Immigration judge. Petitioners were given the privilege of voluntary departure on or before February 3, 1986, with an alternative order of deportation to Nigeria should they fail to depart as directed.

 On August 12, 1986, petitioners applied for asylum, claiming that they could not return to Nigeria for political reasons. According to INS records, petitioners were given "a verbal denial of their request for an extension based on facts that this Service believes that [their] request for political asylum to be frivolous and they do not have any immigration benefits immediately available." Letter from Deputy District Director of INS, September 8, 1986, p. 2.

 On August 26, 1986, petitioners requested a stay of deportation, claiming both persecution in Nigeria and a diagnosis of R/O Iron deficiency in their young son. Rejecting the persecution claim, and finding that petitioners had failed to show either how travel would jeopardize their sons' health, or that treatment was unavailable in Nigeria, the deputy director denied petitioners' application for a stay of deportation.

 Petitioners' deportation date was September 29, 1986. On that date, this Court granted a temporary restraining order, enjoining the respondent from deporting the petitioners. Petitioner Evaristus Anyanwu claims that while in Nigeria, he had been closely affiliated with the State Government of Imo, which, on December 31, 1983, was overthrown in a military coup d'etat. The immediate effect of the coup to petitioner was the cutting off of scholarship money -- thus explaining petitioner's need to find employment. *fn1" Petitioner further claims that in April 1986, he wrote to relatives in Imo to send him air tickets to return home. The letters he received, attached to his motion as exhibits, strongly urge him to stay in the United States. *fn2"

 As mentioned above, petitioners applied for asylum on August 12, 1986. Petitioners also applied for a stay of deportation pending determination of their asylum application. Notwithstanding the fact that the asylum application was still pending, the deputy district director denied their application for a stay. The present motion is for a preliminary injunction staying deportation pending the outcome of the petitioners' asylum application.

 DISCUSSION

 The administrative regulation dealing with stays of deportation, 8 C.F.R. § 243.4 (1985), provides that the district director, in his discretion, may grant a stay of deportation for such time and under such circumstances as he may deem appropriate. The INS provides for direct and exclusive review by the court of appeals of "all final orders of deportation." 8 U.S.C. § 1105a. A denial of a stay of deportation is not a final order of deportation and thus is not directly appealable to the court of appeals. "A habeas corpus proceeding is the proper method for raising the denial of discretionary relief, such as the denial of a stay." Lopez-Alegria v. Ilchert, 632 F. Supp. 932, 935 (N.D. Cal. 1986); Bazrafshan v. Pomeroy, 587 F. Supp. 498, 501 (D.N.J. 1984). Once an alien is deported, his asylum appeal is considered withdrawn. Lopez-Alegria v. Ilchert, 632 F. Supp. at 953.

 The proper standard of review of a denial of a request for a stay of deportation is whether the district director's decision was an abuse of discretion. See Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968). We hold that there was an abuse of discretion.

 As courts in this Circuit have noted on numerous occasions, where the lives of human beings are at stake, the discretion of the district director must be correspondingly narrowed. In Bazrafshan v. Pomeroy, 587 F. Supp. 498 (D.N.J. 1984), this Court was presented with facts similar to those presently before the Court. An Iranian citizen had been denied a request to stay deportation pending the outcome of a motion to reopen deportation proceedings. Petitioner claimed he had "new" evidence to substantiate his asylum application. In his denial, the district director voiced "serious doubts regarding the genuineness of [petitioner's] fear of persecution or dying at the hands of the Khomeni Regime." Id. at 501.

 This Court granted the preliminary injunction. We noted that were a man's life not at stake, we could not have found an abuse of discretion by the district director. However, this Court wrote:

 
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 . . . By denying petitioner's request for a stay of deportation, the District Director deprived petitioner of the ...

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