petitioners pending outcome of their motion to reopen deportation proceedings.
However, were this Court to grant the motion of the Immigration and Naturalization Service, petitioners might never have the opportunity to present their asylum application to the Board of Immigration Appeals, an appeal which is provided for by the Service's own regulations. 8 C.F.R. § 3.8. To grant the motion of the Immigration and Naturalization Service would be, in effect, to deny the petitioners the full procedural protections which the Service itself affords applicants for asylum.
This result is in accord with decisions in both this and other Circuits. See, e.g., In the Matter of Ali Reza Ghalamsiah, No. 86-767, slip op. at 14 (D.N.J. 1986) (Deportation stayed "pending the resolution and any appeal of his motion to reopen deportation proceedings before the Board of Immigration Appeals."); Bazrafshan v. Pomeroy, 587 F. Supp. 498, 501 (D.N.J. 1984) ("By denying petitioner's request for a stay of deportation, the District Director deprived petitioner the opportunity to have the Board of Immigration Appeals even consider his motion to reopen."); Lopez-Alegria v. Ilchert, 632 F. Supp. 932, 937 (N.D. Cal. 1986) (Court stays deportation "pending resolution by the Board of Immigration Appeals of [petitioner's] motion to reopen.")
Accordingly, the respondent is enjoined from deporting petitioners pending resolution by the Board of Immigration Appeals of petitioners' motion to reopen, and respondent's motion to vacate this Court's order of October 16, 1986 is therefore denied.
This matter having been opened to the Court on respondent's motion to vacate this Court's order of October 16, 1986 enjoining respondent from deporting petitioners pending the outcome of their motion to reopen deportation proceedings; and for the reasons set forth in this Court's opinion filed herewith;
It is on this 21st day of November, 1986,
ORDERED that respondent's motion to vacate this Court's order of October 16, 1986 be, and it hereby is, denied.
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