Unpublished Disposition, 911 F.2d 738 (9th Cir. 1989)

Maria PEREZ DE SAENZ, Petitioner-Appellant,v.David N. ILCHERT, District Director of the U.S. IMMIGRATIONand Naturalization Service, Respondent-Appellee.

No. 89-15919.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 18, 1990.Decided Aug. 9, 1990.

Before SCHROEDER and CANBY, Circuit Judges, and EARL B. GILLIAM,^*  District Judge.

MEMORANDUM^** 

Petitioner, Maria Perez de Saenz, appeals from the district court's denial of her Petition for Writ of Habeas Corpus. Perez de Saenz petitioned the District Court for the Northern District of California to stay her deportation, on the grounds that the Board of Immigration Appeals ("BIA") and the district director of the Immigration and Naturalization Service ("district director") had abused their discretion in denying Perez de Saenz' requests to stay her deportation pending her motion to reopen before the BIA. In denying the petition, the district court held that the district director had properly found that the petitioner is unlikely to succeed on the merits of her motion to reopen and that the petitioner's due process rights were not violated by ineffective assistance of counsel at her initial deportation hearing.

Perez de Saenz, a native and citizen of El Salvador, illegally entered the United States, via El Paso, Texas, in January, 1984. Perez de Saenz applied for asylum as relief from deportation, alleging that she would suffer persecution if deported to El Salvador. An Immigration Judge ("IJ") denied the application on May 22, 1986, and ordered that Perez de Saenz be deported. Perez de Saenz filed a timely appeal, but the BIA dismissed the appeal after Perez de Saenz failed to file any briefs in support of her appeal.

Perez de Saenz requested a stay of deportation from this court in order to file a motion to reconsider or reopen with the BIA. On January 20, 1989, this court denied the motion, but withheld its order for ninety days to allow Perez de Saenz an opportunity to seek additional relief. After the ninety-day period was over, this court issued its order denying the stay of deportation.

On April 21, 1989, after the ninety days had passed, Perez de Saenz filed a motion to reopen and to stay deportation with the BIA, alleging that new evidence, not available at the initial hearing, existed and that Perez de Saenz had not presented old evidence at the initial hearing because of ineffective assistance of counsel. Perez de Saenz also filed a motion with this court to withdraw its order denying a stay of deportation pending resolution of the motion to reopen before the BIA. On June 5, 1989, this court denied the motion to withdraw its order.

On June 7, 1989, Perez de Saenz petitioned the district director to stay her deportation, pursuant to 8 C.F.R. Sec. 243.4. On June 12, 1989, the BIA telephonically denied Perez de Saenz' request to stay deportation on the grounds that there was little likelihood that Perez de Saenz' motion to reopen would be successful. In its written order of the same date, the BIA said:

Counsel for the respondent has applied for a stay of deportation pending consideration by the Board of a motion to reopen. After consideration of all information submitted by the parties, the Board has concluded that there is little likelihood that the motion will be granted. Accordingly, the request for stay of deportation will be denied.

On June 15, 1989, the district director issued a written ruling denying Perez de Saenz' request for a stay of deportation for two reasons. First, the district director found that Perez de Saenz had failed either to pay the filing fee on the application or to establish compliance with fee waiver requirements, as prescribed by 8 C.F.R. Secs. 103.7(b) and (c). Second, the district director found that Perez de Saenz had failed to show a likelihood of success on the motion to reopen.

The filing of a motion to reopen deportation proceedings or an appeal to the BIA of an IJ's denial of a motion to reopen does not automatically stay a deportation order. See 8 C.F.R. Sec. 103.5; 8 C.F.R. Sec. 242.22; 8 C.F.R. Sec. 3.6. Because an alien may not pursue her motion to reopen after deportation, these regulations effectively prevent the alien from pursuing her motion unless the IJ, the BIA, or the district director grants her a stay of deportation pending appeal. Blancada v. Turnage, 891 F.2d 688, 690 (9th Cir. 1989).

An IJ may stay deportation pending her determination of the motion to reopen. 8 C.F.R. Sec. 242.22. If the IJ has not granted a stay, then the BIA has discretion to stay the deportation pending an appeal of a motion to reopen. 8 C.F.R. Sec. 3.6(b). In addition, the district director has the discretion to grant a stay of deportation. 8 C.F.R. Sec. 234.4. The district director's denial of a stay does not preclude the BIA from granting a stay. Id.

A denial of a stay of deportation is not a final order of deportation and thus is not directly appealable to the Courts of Appeals. Kwok v. INS, 392 U.S. 206 (1968). A district court has jurisdiction on a petition for writ of habeas corpus to review both the BIA's and the district director's denial of requests to stay deportation. Dhangu v. INS, 812 F.2d 455, 459 (9th Cir. 1987). The district court reviews the denial of a stay of deportation under an abuse of discretion standard. Blancada v. Turnage, 891 F.2d 688, 690 (9th Cir. 1989).

This court has jurisdiction of an appeal from the district court's denial of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2253. Perez de Saenz filed her appeal within the 30 days provided under Federal Rule of Appellate Procedure 4. This court granted petitioner's emergency motion for stay of deportation pending appeal.

This court reviews de novo the district court's denial of a habeas corpus petition. Blancada, 891 F.2d at 690; Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir. 1985), cert. denied, 474 U.S. 841 (1985). Thus, this court reviews the BIA's denial and the district director's denial of the stay under an abuse of discretion standard. Batoon v. INS, 707 F.2d 399, 401 (9th Cir. 1983).

The BIA and the district director may not act arbitrarily, irrationally, or contrary to law. Id. "Cursory, summary, or conclusory statements are inadequate." Id. When the BIA denies a stay, it must give reasons for its decision that demonstrate that the BIA has fully considered the request. Id.; Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981).

To affirm on the theory that the Board necessarily considered whatever the petitioner asserted would free the Board of the obligation to articulate a reasoned basis for its decisions, eliminating any guaranty of rationality and foreclosing meaningful review for abuse of discretion.

Santana-Figueroa, 644 F.2d at 1357.

Here, the district court considered only the district director's denial of the stay. The district court did not consider the BIA's denial of the stay. Defendant Ilchert argues that the BIA's denial is not before this court because Perez de Saenz did not sue the BIA in her habeas petition. Ilchert additionally argues that even if the BIA decision were properly before this court, the rationale given in the district director's decision supports the BIA's denial because both denials were based on a finding of "little likelihood" of success on the motion to reopen.

Perez de Saenz responds by pointing out that there is no authority for requiring her to name the BIA as a respondent. She contends that this circuit repeatedly has considered the BIA's denial of a stay pending a motion to reopen based on habeas jurisdiction in which the INS was the only named respondent. See, e.g., Dhangu v. INS, 812 F.2d at 459; Kemper v. INS, 705 F.2d 1150 (9th Cir. 1983). Perez de Saenz argues that naming only the district director is proper because habeas petitions must be brought against the custodian who allegedly holds the petitioner in unlawful custody. Braden v. Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973); Dunne v. Henman, 875 F.2d 244, 248 (9th Cir. 1989).

Perez de Saenz also points out that she has the right to seek a stay from both the district director and the BIA, and that each must decide the request within their respective discretion. We accept her contentions. She contends that imputing the district director's rationale to the BIA decision would destroy the balance of judicial and enforcement powers within each administrative body.

The district court did not consider whether the BIA's denial contained an adequate explanation of its reasons. See Santana-Figueroa v. INS, supra. Because the INS regulations expressly contemplate that an alien seeking a stay of deportation may take her request through two independent channels, this court finds that each decision, the BIA's decision and the district director's decision, must be supported by stated reasons that evidence consideration of all of the relevant factors. Otherwise, the alien is denied her express opportunity to petition two independent decision makers.

We therefore reverse the district court's denial of Perez de Saenz' habeas corpus petition. We remand to the district court so that it may consider the issue of the adequacy of the BIA's denial of the stay. The district court is further instructed to enter an order staying deportation pending its determination of the case. Any further appeals or applications for stay to this court shall be referred to this panel.

REVERSED AND REMANDED.