768 F.

2d 1213

Dori ZARDUI-QUINTANA, et al., Petitioners-Appellees,

v.
Louis M. RICHARD, et al., Respondents-Appellants.
Nos. 85-8299, 85-8361.

United States Court of Appeals,

Eleventh Circuit.
Aug. 2, 1985.

Nina R. Hickson, Asst. U.S. Atty., Atlanta, Ga., Lauri S. Filppu, Madelyn
Johnson, Office of Immigration, Dept. of Justice, Washington, D.C., for
respondents-appellants.
William C. Thompson, Jay I. Solomon, Atlanta, Ga., for petitionersappellees.
Appeals from the United States District Court for the Northern District of
Georgia.
Before TJOFLAT and VANCE, Circuit Judges, and ATKINS * , District
Judge.
TJOFLAT, Circuit Judge:

I.
1

Petitioners are forty-four Mariel Cubans who arrived in the United States
illegally as part of the 1980 Freedom Flotilla from Cuba. Many had long
records of serious criminal activity in their homeland; all subsequently
committed serious crimes in the United States, including murder, rape, armed
robbery, and narcotics offenses.1

The Immigration and Naturalization Service (INS), believing that the

petitioners were not entitled to enter the United States, instituted exclusion
hearings, pursuant to 8 U.S.C. Sec. 1226 (1982) and 8 C.F.R. Sec. 236 (1985).
In each case, the immigration judge determined that the petitioners were

excludable aliens and should be deported to Cuba. 2 Some, but not all, of the
forty-four petitioners, pursued appeals from this decision to the Board of
Immigration Appeals (BIA). 3
3

Shortly thereafter, the United States and Cuba reached an accord whereby a
portion of the Marielitos, including the petitioners, would be returned to Cuba
in exchange for political prisoners in Cuban jails. The United States
government notified the forty-four petitioners that their deportation was
imminent. Petitioners, however, resisted deportation, contending that they
would be mistreated in Cuba because of their participation in the Mariel
Freedom Flotilla.

In an effort to prevent deportation, petitioners filed, pursuant to 8 C.F.R. Sec.

208.11 (1985), individual motions to reopen their exclusion proceedings, with
either an immigration judge or the BIA, in which they argued that they were
entitled to asylum in the United States or that they should have their deportation
withheld. In addition, each petitioner requested the INS district director4 for a
stay of deportation pending the disposition of such motions to reopen their
exclusion proceedings. The district director denied the motions; he concluded
that the immigration judge or the BIA would deny petitioners' motions to
reopen exclusion hearings on the grounds that each of the excludable aliens was
ineligible for asylum or withholding of deportation because of his prior criminal
conduct. See 8 U.S.C. Sec. 1253(h)(2)(B) (1982) and 8 C.F.R. Sec. 208.8(f)(iv)
(1985).5

Petitioners filed a joint habeas corpus petition in the United States District
Court for the Northern District of Georgia claiming that the district director
acted unlawfully in denying their motions for stays,6 and requesting the court to
enjoin the Government from deporting them. The district court granted
injunctive relief in the form of a temporary restraining order,7 because it found
that the forty-four petitioners had shown a substantial likelihood of success on
the merits of their claim that the district director abused his discretion in finding
them ineligible for withholding of deportation under 8 U.S.C. Sec. 1253(h)(2)
(B) or (C) (1982).8 Specifically, the district court found it likely that the district
director had abused his discretion by: (1) failing to make separate findings,
pursuant to 8 U.S.C. Sec. 1253(h)(2)(B) (1982), that an alien had been
convicted of a particularly serious crime in the United States and that he
constituted a danger to the community; and (2) failing to make sufficient
subsidiary findings of fact to support his legal conclusions that the aliens had
either committed a particularly serious crime in the United States or had
committed a serious non-political crime prior to entering the United States. The
Government immediately appealed the district court's order enjoining

petitioners' deportation, pursuant to 28 U.S.C. Sec. 1292(a)(1) (1982). Because

we find that the district director lacked the authority to grant stays of
deportation in this case, we decline to address either of these questions.9 II.
A.
6

We note at the outset that a district court's grant of a preliminary injunction is

reviewable only for abuse of discretion. United States v. Jefferson County, 720
F.2d 1511, 1519 (11th Cir.1983). That discretion is guided by four
prerequisites. The movant must show: (1) a substantial likelihood that he will
ultimately prevail on the merits; (2) that he will suffer irreparable injury unless
the injunction issues; (3) that the threatened injury to the movant outweighs
whatever damage the proposed injunction may cause the opposing party; and
(4) that the injunction, if issued, would not be adverse to the public interest. Id.
at 1519; West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 956 (11th
Cir.1982); Southern Monorail Co. v. Robbins & Myers, Inc., 666 F.2d 185, 186
(11th Cir.1982). "The preliminary injunction is an extraordinary and drastic
remedy not to be granted unless the movant 'clearly carries the burden of
persuasion' as to the four prerequisites." United States v. Jefferson County, 720
F.2d at 1519 (quoting Canal Authority v. Callaway, 489 F.2d 567, 573 (5th
Cir.1974)). The lower court abused its discretion in granting a preliminary
injunction in this case because petitioners failed to make the requisite showing
that they were likely to succeed on the merits.

B.
7

An investigation of the statutory and regulatory framework of exclusion

procedures shows that the powers of the district director to stay the deportation
of excluded aliens is limited to special circumstances not present in this case.
Further, the district director is entirely powerless to grant asylum or withhold
deportation once exclusion proceedings have commenced. Petitioners,
therefore, had no chance to prevail on the merits of their claim that the district
director should have stayed their deportation, and thus the district court abused
its discretion in granting a preliminary injunction.

We begin our discussion with an examination of the powers and duties of the
district director10 and the immigration judge in the context of exclusion
proceedings. An alien arriving at a port of the United States may be examined
by an immigration officer. 8 U.S.C. Sec. 1225(a) (1982); 8 C.F.R. Sec. 235.1
(1985). If the examining officer is unable to find that the alien is "clearly and
beyond a doubt" entitled to enter into the United States, he must detain him for
further inquiry before an immigration judge.11 Pursuant to 8 U.S.C. Sec.

1226(a) (1982) and 8 C.F.R. Sec. 236.2 (1985) the immigration judge conducts
a formal hearing, including the presentation of evidence and testimony under
oath. The immigration judge's decision as to exclusion is final, 8 C.F.R. Sec.
236.6 (1985), unless the alien or the district director appeals to the BIA. If the
BIA finds the alien excludable, the alien's only avenue of review is before the
appropriate district court. 8 U.S.C. Sec. 1105a(b) (1982). Once the
determination to exclude an alien becomes final, the district director in charge
of the alien must immediately deport him. 8 U.S.C. Sec. 1227(a) (1982); 8
C.F.R. Sec. 237 (1985). The district director may only exercise his discretion
not to deport an excluded alien in two limited situations: (1) where he
concludes that immediate deportation is not practicable or proper (for example,
where transportation cannot be arranged),12 or (2) where the Attorney General
determines that the alien's testimony on behalf of the United States is necessary
for prosecution of violations of the law. 8 U.S.C. Sec. 1227(a), (d) (1982); 8
C.F.R. Sec. 237.1 (1985).13
9

In the case before us, petitioners were determined to be excludable by a final

administrative order. Thus, the power of the district director to grant a stay of
deportation was limited to situations where deportation would be impractical or
the Attorney General has indicated that the alien's testimony is needed in a
criminal prosecution. Neither instance was involved in this case. Indeed, it was
because Cuba had agreed to receive petitioners, and the United States had made
arrangements to transport them to Cuba, that the petitioners moved to reopen
their exclusion hearings. As such, the motions before the district director to stay
the deportation were properly denied.14 This is not to say that a stay can never
be granted in the deportation of excluded aliens. The immigration judge and the
BIA have the power to stay the deportation of an excluded alien upon a motion
to reopen the exclusion proceeding.15 Although the filing of such a motion does
not automatically stay the execution of the outstanding exclusion order, the
judge (or the BIA) having jurisdiction over the motion may, in his discretion,
grant a stay of deportation. 8 C.F.R. Sec. 103.5 (1985). That no such stays were
granted in this case underscores the belief of the immigration judge that the
petitioners' requests for asylum and withholding of deportation were frivolous.

10

Further, in our view of the statutory and regulatory framework of exclusion

proceedings and asylum or withholding of deportation requests, the district
director was unable to grant any relief other than a stay of deportation for the
limited purposes mentioned above. The Immigration and Nationality Act
contains two provisions whereby aliens may resist deportation to countries
where their life or freedom would be threatened because of their political
opinion: 8 U.S.C. Sec. 1158 (1982),16 providing that an alien subject to
exclusion from the United States may apply for asylum, and 8 U.S.C. Sec.

1253(h) (1982),17 preventing the deportation of an alien to a country if the

Attorney General determines that the alien's life or freedom will be threatened
because of his political opinion. Under the regulatory scheme created by the
Attorney General,18 jurisdiction over any application for asylum made prior to
the commencement of exclusion proceedings lies with the district director
having jurisdiction over the port of entry. 8 C.F.R. Sec. 208.1(a) (1985).
However, once an alien has been served a notice of referral to exclusion
proceedings, the immigration judge has exclusive jurisdiction over the asylum
application. 8 C.F.R. Sec. 208.1(b) (1985).19 An alien may request asylum after
the completion of an exclusion hearing. The regulations provide that this be
done through a motion to reopen the exclusion proceedings to address the
asylum request. 8 C.F.R. Sec. 208.11 (1985).20 It seems clear that read as a
whole the regulations contemplate that, once exclusion proceedings begin,
authority to grant asylum requests rests in the immigration judge, not the
district director. Since all the petitioners were recipients of exclusion hearings,
they cannot object to the district director's failure to grant them asylum.
11

Petitioners do contend, however, that the district director should have granted
their request for the withholding of exclusion pursuant to 8 U.S.C. Sec. 1253(h)
(1982). The Attorney General has delegated his authority to grant withholding
of deportation in exclusion cases to the immigration judge. 8 C.F.R. Secs.
208.3(b), 208.11 (1985); 8 C.F.R. Sec. 242.8(a) (1985) (general authority in
deportation cases). Unlike asylum procedures where the district director does
have authority to grant requests made prior to exclusion hearings, the
regulations fail to delegate to the district director any power at all to withhold
the deportation of an excluded alien. The reason for this is clear. Applications
to withhold deportation will only be made during or after the determination of
an alien's deportability; or put in the context of the present case, such an
application will only be made during or after the exclusion proceeding. The
regulations clearly contemplate treating applications to withhold deportations in
a like manner to asylum requests made during or after exclusion hearings. For
instance, under 8 C.F.R. Sec. 208.3(b) (1985), asylum requests made after the
initiation of exclusion proceedings shall automatically be considered as requests
for withholding of deportation. In addition, applications for withholding of
deportation made after the conclusion of exclusion hearings are handled in the
same manner as late asylum requests: the alien must move to reopen the
exclusion proceedings. 8 C.F.R. Sec. 208.11 (1985). It would be anomalous to
find, given the regulatory parallelism between asylum and withholding of
deportation, that although asylum requests made after the commencement of
exclusion hearings are the exclusive domain of the immigration judge,
applications for withholding of deportation made at the same time may be
granted by the district director. Nothing in the regulations suggests that this be

so; rather, the regulations clearly contemplate that applications for withholding
of deportation be procedurally identical to asylum requests. Judicial economy is
certainly served by this result. Since the immigration judge will have all the
evidence before him concerning an asylum request, and such requests involve
considerations similar to those present in applications to withhold deportation,21
common sense suggests that he alone make both determinations. Further, in that
the regulations specifically grant the immigration judge power to grant or deny
applications to withhold deportation, allowing the district director like authority
may create contradictory results and mass confusion in the immigration
process. For these reasons we construe the regulatory framework as granting to
the immigration judge exclusive jurisdiction over applications to withhold the
deportation of excludable aliens. The district director in the present case had no
authority to grant an application to withhold deportation and therefore the
application was properly denied. The application would properly have been
before an immigration judge who had granted a reopening of the exclusion
hearing.22
12

The district director, then, having no power to grant a stay of deportation under
the circumstances present in this case, and having no authority to grant a
withholding of deportation, properly denied the relief sought by the petitioners.
This absence of power clearly made petitioners' success on the merits most
unlikely, and it was therefore an abuse of discretion for the district court to
grant a preliminary injunction. Its order enjoining the district director from
deporting petitioners must, accordingly, be vacated. For the reasons we have
given, the injunctive order in No. 85-8299 and the order granting leave to
appeal in No. 85-8361 are

13

VACATED.
VANCE, Circuit Judge, concurring in result:

14

I concur in the result reached by my colleagues in vacating the injunctive relief

granted by the district court, but I would do so by reaching the merits of
petitioners' claims. In concluding that in this instance the INS district director
lacked authority to grant a stay of deportation, my colleagues are effectively
holding that the Attorney General, himself, was without authority to stay these
deportations. I cannot agree with this holding.

15

By 8 C.F.R. Sec. 237.1, the Attorney General has delegated all his authority
under 8 U.S.C. Sec. 1227(a) to the district director. Section 1227(a) empowers
the Attorney General to stay deportation of an excludable alien whenever he

concludes that "immediate deportation is not practicable or proper." (emphasis

added). This plenary grant of authority from Congress to the Attorney General
makes no mention of any specific factors that the Attorney General is to
consider when determining whether immediate deportation is proper. To
narrowly construe this broad delegation of authority as allowing the Attorney
General or his delegated agent, the district director, to stay deportations under
section 1227(a) only when suitable transportation cannot be arranged, seems
totally inconsistent with this court's previous decisions recognizing the broad
authority granted the Attorney General in immigration matters. See Garcia-Mir
v. Smith, 766 F.2d 1478, 1484 (11th Cir.1985); Jean v. Nelson, 727 F.2d 957,
975-79 (11th Cir.1984), aff'd., --- U.S. ----, 105 S.Ct. 2992, 86 L.Ed.2d 664
(1985). Because 8 C.F.R. Sec. 237.1 empowers the district director to entertain
motions for stays of deportation under circumstances such as these, I consider
the merits of petitioners' claims.
16

The district court's orders enjoin the government from deporting any of the
forty-four excludable aliens who are the petitioners in these cases. By its April
24 and 25, 1985 orders1 the district court certified the following two controlling
questions of law for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b):

17 Does 8 U.S.C. Sec. 1253(h)(2)(B) contemplate two separate findings; namely,

(1)
that the alien has been convicted of a "particularly serious crime" and that he
"constitutes a danger to the community?"
18 Is a mere "parroting" of 8 U.S.C. Sec. 1253(h)(2)(B) or (C) by the District
(2)
Director or the BIA sufficient under the abuse of discretion standard or do these
officials have to make subsidiary findings of fact which support their legal
conclusions?The petitioners in these cases are presently incarcerated in the Atlanta
Federal Penitentiary. They are excludable aliens who have been notified by the
government that their deportation to Cuba is imminent. They all have motions to
reopen their orders of exclusion to consider their asylum claims now pending before
the INS.2 After their requests for stays of deportation were denied by the district
director, they filed individual petitions for writs of habeas corpus in district court.
19

The district director denied the motions for stays of deportation because he
determined that no petitioner had shown a realistic likelihood of success on his
motion to reopen his exclusion order. In reaching this conclusion the district
director determined that each of the excludable aliens was ineligible for asylum
or withholding of deportation because of his prior criminal conduct. See 8
U.S.C. Secs. 1253(h)(2)(B) & (C). The district court granted the temporary
restraining orders because it found that the forty-four petitioners had shown a
substantial likelihood of success on the merits of their claim that the district

director abused his discretion in finding them ineligible for asylum under either
8 U.S.C. Sec. 1253(h)(2)(B) or Sec. 1253(h)(2)(C). Specifically, the district
court found it likely that the district director had abused his discretion by: (1)
failing to make separate findings, pursuant to 8 U.S.C. Sec. 1253(h)(2)(B), that
an alien had been convicted of a particularly serious crime in the United States
and that he constituted a danger to the community; and (2) failing to make
sufficient subsidiary findings of fact to support his legal conclusions that the
aliens had either committed a particularly serious crime in the United States or
had committed a serious non-political crime prior to entering the United States.
20

A stay of deportation is a form of relief which the Attorney General may grant
or deny an excludable alien at his discretion. By regulation, the Attorney
General has delegated his authority to grant stays of deportation to the local
district director. 8 C.F.R. Sec. 237.1. In immigration matters, this court has long
recognized that when reviewing the administrative denial of a discretionary
form of relief "[t]he inquiry goes to the question whether or not there has been
an exercise of administrative discretion and, if so, whether or not the manner of
exercise has been arbitrary or capricious." Chokloikaew v. INS, 601 F.2d 216,
218 (5th Cir.1979) (quoting Paul v. INS, 521 F.2d 194, 197 (5th Cir.1975)).
See generally Jean v. Nelson, 727 F.2d at 975-79 (discussing the extremely
limited scope of judicial review in matters of immigration that have been
committed solely to the discretion of executive officials). Judicial inquiry
therefore is limited here to whether the district director acted arbitrarily and
capriciously in concluding that the petitioners had no real likelihood of
succeeding on their motions to reopen their orders of exclusion and in denying
the motions for stays of deportation.

21

The first question certified by the district court pursuant to 28 U.S.C. Sec.
1292(b) is:

22 8 U.S.C. Sec. 1253(h)(2)(B) contemplate two separate findings; namely, that

Does
the alien has been convicted of a "particularly serious crime" and that he "constitutes
a danger to the community?"
23

The district court concluded that the statute required separate determinations as
to whether the petitioner had been convicted of a particularly serious crime and
whether he constituted a danger to the community. The government argues that
the statute does not require a separate determination that the petitioner is a
danger to the community if the district director determines that he has been
convicted of a particularly serious crime. In forty-one of the forty-four petitions
now before us, the district director found that the petitioner had been convicted
of a particularly serious crime in the United States but made no separate finding

as to whether the petitioner constituted a danger to the community.3

24

After examining the language used in the statute, I conclude that it does not
require a district director to make a separate finding that the alien constitutes a
danger to the community after the director determines that an alien has been
convicted of a particularly serious crime. In pertinent part, section 1253(h)(2)
(B) provides that the asylum or withholding of deportation provisions of section
1253(h)(1) shall not apply to any alien if the Attorney General determines that
"the alien, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of the United States; ...." As with
all questions of statutory interpretation, we first look to the plain meaning of the
language used in the statute. See United States v. Martino, 681 F.2d 952, 954
(5th Cir.1982) (en banc), aff'd, 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17
(1983). It seems plain that the statute, on its face, does not contemplate two
separate findings. If Congress had intended that the director make two separate
findings, it could have easily manifested its intent by simply connecting the two
clauses with the conjunction "and." Instead, the grammatical construction
creates a cause and effect relationship between the clauses which indicates that
conviction of a particularly serious crime is the sole factor that Congress has
made determinative of whether the alien constitutes a danger to the community.
The legislative history of section 1253(h)(2)(B) also supports this
interpretation. Under the Refugee Act of 1980, section 1253(h) was amended to
conform with Article 33 of the Protocol Relating to the Status of Refugees
("Protocol").4 See INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 2496-97, 81
L.Ed.2d 321 (1984). Article 33 of the Protocol, known as the nonrefoulment
provision, prohibits expelling or returning a refugee to a territory where his life
would be threatened. According to the House Judiciary Committee Report, the
amended version of section 1253(h) would prohibit those aliens "who have
been convicted of particularly serious crimes which make them a danger to the
community of the United States" from obtaining asylum or withholding of
deportation. H.R.Rep. No. 608, 96th Cong., 1st Sess. 18 (1979).5 The clear
implication of this language is that conviction of a particularly serious crime
makes an alien a danger to the community. This is consistent with the
interpretation given Article 33 of the Convention and Protocol by other
commentators. See N. Robinson, Convention Relating to the Status of
Refugees: Its History, Contents and Interpretation 29 (Institute of Jewish
Affairs 1953); Note, The Right of Asylum Under United States Law, 80
Colum.L.Rev. 1125, 1127 (1980). Since the language of the statute and its
legislative history indicate that Congress never meant to require separate
determinations of conviction of a particularly serious crime and dangerousness
to the community under section 1253(h)(2)(B), the district court erred in
holding to the contrary.

25

This conclusion is further bolstered by consideration of the practical problems

that would arise if the district director were required to make a specific
determination of an alien's dangerousness. A separate determination of an
alien's potential dangerousness would require a prediction as to an alien's
potential for recidivism and would lead to extensive, drawn-out hearings
complete with psychological evaluations and expert testimony. Congress
certainly was aware of these potential problems and its failure to address them
suggests that it did not intend to burden stays of deportation hearings involving
excludable aliens with such complexities.

26

The district court also certified the following question:

27a mere "parroting" of 8 U.S.C. Sec. 1253(h)(2)(B) or (C) by the District Director
Is
or the BIA sufficient under the abuse of discretion standard or do these officials have
to make subsidiary findings of fact which support their legal conclusions?
28

To reiterate, the appropriate standard for judicial review of a denial of a stay of

deportation is whether the Attorney General through the district director, has
exercised his discretion arbitrarily or capriciously. A district director, therefore,
need only make such findings of fact as are necessary to enable a court to
determine whether he has acted arbitrarily or capriciously in denying the stay of
deportation. From my reading of sections 1253(h)(2)(B) & (C) and the
accompanying regulations, I do not conclude that the district director is
required to make detailed subsidiary findings of fact to support his legal
conclusions. See generally Overton Park v. Volpe, 401 U.S. 402, 409-417, 91
S.Ct. 814, 820-824, 28 L.Ed.2d 136 (1971) (administrative agency need not
always accompany its decisions with formal findings of fact). While detailed
subsidiary findings of fact would obviously assist the court in carrying out its
review function, such detailed findings are neither required nor necessary in this
instance. When administrative discretion is exercised findings are sufficient if
the written decision of the administrative agency or the record of the
administrative hearing sets out clearly the ground which forms the basis for the
denial of the discretionary relief, so that a reviewing court is able to ascertain
whether the decision is arbitrary or capricious. See Jarecha v. INS, 417 F.2d
220, 225 (5th Cir.1969). In each of the cases before the court, the district
director has set out clearly the convictions which form the basis for his
conclusion that the aliens will be ineligible for asylum under either 8 U.S.C.
Sec. 1253(h)(2)(B) or Sec. 1253(h)(2)(C). His findings, therefore, are sufficient
to enable a reviewing court to determine whether he has acted arbitrarily or
capriciously in denying the stays of deportation.

29

A review of the record shows that the district director did not act arbitrarily or

capriciously in finding that the petitioners had failed to demonstrate a likelihood

of succeeding on their motions to reopen their exclusion orders. This finding is
bolstered by his additional finding that all the petitioners had either been
convicted of particularly serious crimes in the United States or had committed
serious non-political crimes prior to entering the United States. The district
director therefore did not act arbitrarily or capriciously in denying the motions
for stays of deportation.

Honorable C. Clyde Atkins, U.S. District Judge for the Southern District of
Florida, sitting by designation

Although the "Mariel Boatlift" Cubans were all detained when they arrived in
the United States, most of them were eventually paroled into this country and
have been given the opportunity to apply for resident status. See 8 U.S.C. Sec.
1182(d)(5)(A) (1982). Petitioners, however, had their parole terminated upon
the commission of various offenses in this country. At this point they were
restored to the status they had at the time of parole. 8 C.F.R. Sec. 212.5(d)
(1985). When the district court entered the injunctive order here under review,
the petitioners were incarcerated in the Atlanta Federal Penitentiary

These determinations were based on 8 U.S.C. Secs. 1182(a)(9) (conviction for a

crime of moral turpitude) and 1182(a)(20) (1982) (alien not in possession of a
valid unexpired immigrant visa)

Some of the petitioners raised asylum, 8 U.S.C. Sec. 1158 (1982), and
withholding of deportation, 8 U.S.C. Sec. 1253(h) (1982), issues before the
immigration judge. Others failed to do so. We note, however, that this has no
effect upon an alien's right to request that the immigration judge, or the BIA,
reopen his exclusion hearing on the basis of a request for asylum or
withholding of deportation, 8 C.F.R. Sec. 208.11 (1985), and stay his
deportation pending disposition of such request

District directors "are responsible for the administration and enforcement of the
Act and all other laws relating to immigration and naturalization within their
assigned geographic areas of activity unless any such power and authority is
required to be exercised by higher authority or has been exclusively delegated
to another immigration official or class of immigration officer." 8 C.F.R. Sec.
100.2(e) (1985)

The relevant portions of these provisions are set out infra notes 16-17

The district court had subject matter jurisdiction over the petition pursuant to 8

U.S.C. Sec. 1329 (1982), and 28 U.S.C. Sec. 1331 (1982)

7

We treat the district court's order not as a temporary restraining order but as a
preliminary injunction because it granted the petitioners the very affirmative
relief they sought before the district director, a stay of deportation. In no
respect was the district court's order designed to preserve the status quo ante,
for absent the order the district director was required to obey an existing
exclusion order. This court's jurisdiction, therefore, is based upon 28 U.S.C.
Sec. 1292(a)(1) (1982) under which preliminary injunctions are reviewable,
even when characterized as temporary restraining orders. See Fernandez-Roque
v. Smith, 671 F.2d 426, 429-31 (11th Cir.1982)

The district court's conclusions were based upon the assumption that the district
director had the power to grant the relief requested by the petitioners. As we
shall make clear, the district director had no such authority

By an order entered May 7, 1985, we granted the Government permission to

take an appeal, No. 85-8361, pursuant to 28 U.S.C. Sec. 1292(b) (1982), from
the district court's orders of April 24 and 25, 1985 certifying certain questions
for interlocutory review. Our decision today, however, makes a review of these
questions unnecessary and inappropriate, as we have found that the district
director did not have authority to stay or withhold the deportation of the
petitioners. We therefore vacate our May 7 order as improvidently entered

10

The statutory scheme invests power in the Attorney General to prescribe

procedures for exclusion proceedings, 8 U.S.C. Sec. 1226(a) (1982), asylum
requests, 8 U.S.C. Sec. 1158 (1982), and applications for withholding of
deportation, 8 U.S.C. Sec. 1253(h) (1982). See also 8 U.S.C. Sec. 1103 (1982).
The powers of the district director, therefore, derive from the delegation by the
Attorney General of his authority as defined by statute

11

The regulations provide that, upon detaining the alien for further inquiry before
an immigration judge, the district director must immediately sign and deliver to
the alien a Notice to Alien Detained for Hearing by an Immigration Judge. The
alien must then be advised of his right to representation by counsel and of the
availability of certain free legal services. 8 C.F.R. Sec. 235.6 (1985)

12

This provision clearly refers to the travel and maintenance aspects of

deportation. Placed under the heading of "Maintenance Expenses," the
provision deals with the type of accommodations used in deporting the alien as
well as who should bear the maintenance cost incurred during the alien's
detention. The statute provides that:
(a) Maintenance expenses

(1) Any alien (other than an alien crewman) arriving in the United States who
is excluded under this chapter, shall be immediately deported, in
accommodations of the same class in which he arrived, unless the Attorney
General in an individual case, in his discretion, concludes that immediate
deportation is not practicable or proper.
8 U.S.C. Sec. 1227(a) (1982).
The discretion of the Attorney General to delay deportation is limited to a
determination of the propriety and practicality of deporting the alien by means
of accommodations "of the same class in which he arrived." For a discussion of
the economic and logistic concerns motivating the passage of the provision, see
H.R.Rep. No. 1365, 82d Cong., 2d Sess. 135, reprinted in 1952 U.S.Code &
Ad.News 1653, 1720.
In his concurrence Judge Vance interprets section 1227(a) as vesting unbridled
discretion in the district director to grant stays of deportation of excluded aliens
in any situation in which the district director deems it appropriate. Although the
district director has such power in situations involving findings of deportability,
8 C.F.R. Sec. 243.4 (1985), the regulations have restricted such power where an
alien has been held excludable. Under 8 C.F.R. Sec. 237.1 (1985) the district
director may stay the deportation of an excluded alien pursuant to 8 U.S.C. Sec.
1227(a), (d) (1982). Subsection (d) empowers the Attorney General to stay the
deportation of an excludable alien in limited situations where the testimony of
the alien is necessary on behalf of the United States in a criminal prosecution.
Judge Vance's interpretation of section 1227(a), however, would make the
language in section 1227(d) superfluous since staying the deportation of a
government witness would clearly come under the district director's broad
powers as Judge Vance interprets them. In addition, Judge Vance's reading of
section 1227(a) effectively rewrites 8 C.F.R. Sec. 243.4 (1985) to empower the
district director to grant stays of deportation in cases involving not only
deportable aliens, but excluded aliens as well. We read section 1227(a) more
narrowly to embrace only situations involving travel and maintenance expenses.
Such an interpretation is consistent with the language of section 1227(a) and 8
C.F.R. Sec. 243.4 (1985), while it also acknowledges the efficacy of section
1227(d).
13

When deportation is ordered for reasons other than a finding of excludability,

the district director's powers are much broader; he, "in his discretion, may grant
a stay of deportation for such time and under such conditions as he may deem
appropriate." 8 C.F.R. Sec. 243.4 (1985). Petitioners cite this regulation as the
authority by which the district director could grant the relief requested in this
case. But read in conjunction with 8 C.F.R. Sec. 237.1 (1985), which limits the

power to stay where the alien is found excludable, it is clear that 8 C.F.R. Sec.
243.4 (1985) is inapplicable in this case
14

We are aware that the district director did not seem to base his denials of the
requests for stays upon these limitations of his stay power. Rather, he
concluded that the immigration judge would deny the aliens' requests for stays
of deportation and motions to reopen the exclusion proceedings pursuant to 8
C.F.R. Sec. 208.11 (1985). So finding, he denied their requests for stays. The
fact, however, that the district director produced the wrong reason for a proper
dismissal did not render the grant of a preliminary injunction in these
circumstances any less an abuse of discretion. By enjoining the Government
from deporting petitioners, the district court produced a result that was beyond
the power of the district director to orchestrate. Therefore, although the proper
reasons for the denials of the requests for stays were not given by the district
director, the denials were correct and should not have been disturbed by the
district court

15

An alien may request that an exclusion proceeding be reopened for proper

cause pursuant to 8 C.F.R. Sec. 103.5 (1985)

16

8 U.S.C. Sec. 1158 (1982) provides:

Sec. 1158. Asylum procedure
(a) Establishment by Attorney General: coverage
The Attorney General shall establish a procedure for an alien physically present
in the United States or at a land border or port of entry, irrespective of such
alien's status, to apply for asylum, and the alien may be granted asylum in the
discretion of the Attorney General determines that such alien is a refugee
within the meaning of section 1101(a)(42)(A) of this title.

C.F.R. Sec. 208.8(f) (1985), provides in pertinent part:

(f) Denial --(1) General. The district director shall deny a request for asylum or
extension of asylum status if it is determined that the alien:
....
(iv) The alien, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of the United States;
(v) There are serious reasons for considering that the alien has committed a
serious non-political crime outside the United States prior to the arrival of the

alien in the United States

Though the regulations do not specifically delineate the factors to be taken into
account by the immigration judge in denying asylum requests, it can be
assumed that they are identical to those applicable to district directors.
17

8 U.S.C. Sec. 1253(h) (1982) provides:

(h) Withholding of deportation or return
(1) the Attorney General shall not deport or return any alien (other than an alien
described in section 1251(a)(19) of this title) to a country if the Attorney
General determines that such alien's life or freedom would be threatened in such
country on account of race, religion, nationality, membership in a particular
social group, or political opinion.
(2) Paragraph (1) shall not apply to any alien if the Attorney General
determines that-(A) the alien ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion, nationality, membership
in a particular social group, or political opinion;
(B) the alien, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of the United States;
(C) there are serious reasons for considering that the alien has committed a
serious non-political crime outside the United States prior to the arrival of the
alien in the United States; or
(D) there are reasonable grounds for regarding the alien as a danger to the
security of the United States.

18

See supra note 10

19

Where prior to an exclusion hearing the district director has denied an alien's
request for asylum, the alien may renew his request before an immigration
judge in the exclusion proceedings. 8 C.F.R. Sec. 208.9 (1985). Further, where
an asylum request is filed with the district director but is unadjudicated at the
time exclusion proceedings commence, the request must be resubmitted to the
immigration judge. 8 C.F.R. Sec. 208.1(b) (1985)

20

An alien's request to reopen the exclusion hearing must reasonably explain his
failure to request asylum prior to the completion of that hearing. Without such

an explanation, the request shall be considered frivolous, absent evidence to the

contrary. 8 C.F.R. Sec. 208.11 (1985). Petitioners moved to reopen their
exclusion hearings but their motions have been denied on the grounds that they
are ineligible for asylum or withholding of deportation, pursuant to 8 U.S.C.
Sec. 1253(h)(2)(B) (1982) and 8 C.F.R. Sec. 208.8(f)(iv) (1985), because of
their criminal activity
21

See supra notes 16-17

22

8 C.F.R. Sec. 208.11 (1985). See also supra note 19

I agree with the majority that the district court's orders were preliminary
injunctions reviewable under 28 U.S.C. Sec. 1292(a)(1)

At least some of the forty-four have had their motions to reopen denied by an
immigration judge, however, these decisions are now pending review before
the Board of Immigration Appeals

The other three petitioners were found to have committed serious non-political
crimes prior to their entry to the United States and thus were found ineligible
for asylum pursuant to 8 U.S.C. Sec. 1253(h)(2)(C). Dangerousness to the
community is irrelevant under section 1253(h)(2)(C)

19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268 (1968). The Protocol
incorporated by reference various provisions of the 1951 Convention Relating
to the Status of Refugees ("Convention"), No. 2545, 189 U.N.T.S. 137 (July 28,
1951). Article 33 of the Protocol was taken directly from the Convention

Although an amended Senate version of the Refugee Act was passed in lieu of
the House's version, the Senate accepted the House's section 1253(h) language
with the understanding that it was based directly on the language of the
Protocol. S.Conf.Rep., No. 590, 96th Cong., 2d Sess. 20 (1980), U.S.Code
Cong. & Admin.News 1980, p. 141