Appeal from an order entered in the United States District Court for the Southern District of New York (Whitman Knapp, Judge ) denying a petition for writ of habeas corpus, and a petition for review of a decision of the Board of Immigration Appeals denying a motion to reopen deportation proceedings. The denial of the petition for writ of habeas corpus is affirmed. The denial of the motion to reopen deportation proceedings is reversed and remanded.
Before Oakes, Newman and Winter, Circuit Judges.
This is a consolidation of (1) an appeal from the dismissal of a petition for a writ of habeas corpus, and (2) a petition for review of a final order of deportation of the Board of Immigration Appeals ("BIA"). The major issue is whether the Refugee Act of 1980 changes the legal standard for aliens seeking political asylum in order to avoid deportation. We hold that it does and reverse the BIA's order denying the motion to reopen.
The petitioner-appellant, Predrag Stevic, is a citizen of Yugoslavia. He entered the United States on June 8, 1976, with a visa permitting him to remain until July 25, 1976. The purpose of the trip was to visit his sister who had married a United States citizen and was a permanent resident here. When his visa expired, Stevic neither left nor sought an extension of time. Deportation proceedings were commenced. A hearing was held on December 16, 1976, before Immigration Judge Anthony D. Petrone. Stevic's counsel neither contested his deportability nor requested political asylum. Rather, Stevic consented to "voluntary departure" within sixty days and designated Yugoslavia as the country to which he desired to be deported. Judge Petrone ordered "voluntary departure" for Stevic on or before February 16, 1977. No appeal was taken. When the time came, Stevic again neither departed nor requested an extension of time.
On January 8, 1977, Stevic married Mirjana Doichin, a United States citizen. Thereafter, she filed a "Petition to Classify Status of Alien Relative for Issuance of Immigration Visa" on Form I-130 ("I-130 Petition") with the Immigration and Naturalization Service ("INS"), the first step in obtaining an "adjustment of status" to lawful permanent residence status.*fn1 On April 5, 1977, the I-130 Petition was approved by the INS. Five days later, Stevic's wife was killed in an automobile accident. As a result, approval of the I-130 Petition was automatically revoked under 8 C.F.R. § 205.1(a)(2).*fn2
Stevic requested reinstatement of the I-130 Petition on humanitarian grounds pursuant to 8 C.F.R. § 205.1(a)(3).*fn3 On August 11, 1977, the INS's Chicago District Director denied that request, stating that Stevic had "no immediate relatives or other equity in the United States." This was in part untrue since Stevic's sister was a permanent resident in this country. Stevic was given notice to surrender for deportation on August 24, 1977. He did not seek review of that decision.
Stevic did not surrender for deportation. Instead, he moved to reopen the deportation proceedings for the purpose of filing an application for withholding of deportation to Yugoslavia under Section 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1253(h).*fn4 In this motion, Stevic raised for the first time his fear of persecution should he be deported to Yugoslavia. Stevic claimed that, since his marriage, he had become active in an emigre anti-Communist organization, Ravna Gora. He stated that his wife's father, an American citizen, and also a member of Ravna Gora, was imprisoned while visiting Yugoslavia as a tourist in 1974. According to Stevic's habeas petition, his father-in-law was imprisoned for three years, an experience which caused him to commit suicide upon release. Stevic presented evidence of his own activities in other Serbian emigre organizations and of the hostility of the Yugoslav government to these organizations and their members. While the motion to reopen was pending, Stevic applied to the Chicago District Director for asylum. That application was denied on August 1, 1979. On October 17, 1979, Judge Petrone denied Stevic's motion to reopen. Stevic appealed to the BIA. On January 18, 1980, the BIA dismissed Stevic's appeal, stating:
A motion to reopen based on a section 243(h) claim of persecution must contain prima facie evidence that there is a clear probability of persecution to be directed at the individual respondent. See Cheng Kai Fu v. INS, 386 F.2d 750 (2d Cir. 1967), cert. denied, 390 U.S. 1003 (88 S. Ct. 1247, 20 L. Ed. 2d 104) (1968). Although the applicant here claims to be eligible for withholding of deportation which was not available to him at the time of his deportation hearing, he has not presented any evidence which would indicate that he will be singled out for persecution.
Stevic did not appeal this decision.
Stevic was then served with a notice to surrender for deportation on February 24, 1981. Once again, he neither complied nor requested an extension of time. On July 17, 1981, he was apprehended in Chicago and transported to J.F.K. International Airport in New York for deportation. During a transfer to a connecting flight for Yugoslavia, Stevic attempted to escape and was detained by the INS. Deportation was rescheduled. On July 21, 1981, Stevic petitioned for a writ of habeas corpus in the United States District Court for the Southern District of New York. The District Court, limiting its consideration to whether the August 11, 1977 decision denying humanitarian relief was an abuse of discretion, denied the petition. Stevic appealed.
Stevic also filed a second motion to reopen his deportation proceedings before the BIA. On September 3, 1981, the BIA denied that motion. It stated:
The position of this motion is identical to the prior one; ... No showing has been made that the submitted information was not available to the respondent prior to this date, nor that conditions in Yugoslavia have substantially changed since he filed the first motion ....
In addition, we also conclude that the respondent has failed to make out a prima facie showing that he will be singled out for persecution if deported to Yugoslavia. A motion to reopen based on a section 243(h) claim of persecution must contain prima facie evidence that there is a clear probability of persecution to be directed at the individual respondent. See Cheng Kai Fu v. INS, 386 F.2d 750 (2d Cir. 1967), cert. denied, 390 U.S. 1003 (88 S. Ct. 1247, 20 L. Ed. 2d 104) (1968); Matter of McMullen, Interim Decision 2831 (BIA 1981) ....
Stevic petitions for review of that decision.
The appeal from the District Court and the petition for review of the BIA decision have been consolidated.
APPEAL FROM THE DISTRICT COURT
In his petition for a writ of habeas corpus,*fn5 Stevic challenged the validity of the denial of humanitarian relief by the INS's Chicago District Director on August 11, 1977.
Like the District Court, our review is limited to determining whether that decision is an abuse of discretion or unsupported by substantial evidence. The granting or denying of humanitarian relief is a matter for the exercise of discretion by the Attorney General and his decision may not be overturned by a reviewing court "simply because it may prefer another interpretation ...." INS v. Wang, 450 U.S. 139, 144, 101 S. Ct. 1027, 1031, 67 L. Ed. 2d 123 (1981).
The District Director's decision is by no means invulnerable, since the statement that Stevic has no immediate relatives in this country is a plain mistake of fact. Stevic's immigration record plainly indicated that his original purpose in entering the United States was to visit his sister, then and now a permanent resident.
Judge Knapp noted the Director's error, but declined to grant relief since no effort was made at the time either to bring the error to the Director's attention or to appeal. We also decline to act on the basis of a factual error in a discretionary decision now some four and one-half years old. Stevic has had more than ample opportunity to bring the error to the Director's attention or challenge it before the BIA. Since we cannot say that, but for the Director's prior error, humanitarian relief would have been granted or that such relief is mandatory in light of the true facts, the only legitimate function the writ might serve would be to permit Stevic to file a renewed application to reinstate the I-130 Petition. Stevic, ...