The opinion of the court was delivered by: STERN
On October 16, 1986, 645 F. Supp. 266, this Court granted the motion of petitioners, Evaristus Anyanwu and his wife, Patricia, for a preliminary injunction to enjoin the Immigration and Naturalization Service from deporting them until their motion to reopen deportation proceedings had been decided. Petitioners claim their lives would be threatened if they are deported to their home country of Nigeria. Facts concerning this motion are reviewed in our October 16, 1986 opinion.
Subsequent to our decision, an Immigration judge denied petitioners' motion to reopen proceedings. The judge also decided to restore voluntary departure, with a date to be set by the district director. The petitioners have filed an appeal with the Board of Immigration Appeals.
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 ...