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Dor v. District Director


decided: December 8, 1989.


Appeal from a judgment of the United States District Court for the Southern District of New York (Conboy, J.). Appellant claims that the district court erred in denying his petition for a writ of habeas corpus. Affirmed.

Feinberg, Pierce, and John R. Brown*fn* Circuit Judges.

Author: Brown

John R. Brown, Circuit Judge:

Lyonel Dor appeals a district court decision denying his application for a preliminary injunction and dismissing his petition for a writ of habeas corpus. Dor, a Haitian, was ordered deported in 1985 after serving a prison sentence for manslaughter. A final order of deportation was stayed by this Court in 1987, however, so that the Immigration and Naturalization Service (INS) could determine whether Dor was entitled to relief under a recently passed immigration law. We reject Dor's arguments that his continued detention (i) is without rational basis, (ii) extends beyond an INS six-month detention limitation, and (iii) violates due process. Furthermore, we find that the terms of our stay have been satisfied, i.e., that Dor's application for adjustment of status under the new immigration law has been sufficiently adjudicated by the INS. Accordingly, we affirm the district court's ruling and we vacate our earlier stay.

From Haiti to INS Detention

Dor, a citizen of Haiti, entered the United States at the age of 12 without valid entry documents in 1972.*fn1 Six years later he was convicted of first degree manslaughter for participating in the murder of his aunt. Dor served 6 1/2 years in prison and then was released into the custody of the INS on June 20, 1984. He remains in INS custody today, more than 5 years after completing his sentence.

On December 8, 1982 the INS instituted deportation proceedings against Dor on the ground that he had entered the United States without valid entry documents. Having conceded that he indeed illegally entered the United States, Dor applied for asylum and a withholding of deportation. An Immigration Judge on April 30, 1985 denied his request for asylum and a withholding of deportation on the grounds that Dor is "a danger to the community of the United States" given the role he played in the slaying of his aunt, and ordered his deportation (event 3). See Immigration and Naturalization Act (INA), § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B) (1952); 8 C.F.R. § 208.8(f) (1988). Dor unsuccessfully appealed that decision to the Board of Immigration Appeals (BIA) (event 4). In its dismissal order, the BIA determined that Dor was eligible for neither a withholding of deportation nor asylum due to his conviction for first degree manslaughter. Subsequently the BIA also denied Dor's motion to reconsider and to reopen the deportation hearing (event 7; 7/3/86). Dor became subject to a final order of deportation on December 31, 1985.

Having exhausted his administrative remedies, Dor sought judicial review of the deportation order resulting in a stay of the order. 8 U.S.C. § 1105a(a)(3). In December 1986 this Court affirmed the order of deportation, (event 8; 12/24/86) but then stayed the issuance of its mandate in response to the suggestion that under the then-recently promulgated Immigration Reform and Control Act of 1986 (IRCA), Pub.L. 99-603, Dor as a Haitian might qualify for an adjustment of status and thus avoid deportation by attaining the status of lawfully admitted permanent resident (event 15; 1/20/87.*fn2 On January 20, 1987 the stay of mandate was modified by extending it from 21 days to "until such time as the Immigration and Naturalization Service adjudicates the applications for relief from deportation by adjustment of status to lawful permanent resident status under [IRCA § 202]." (event 15)

Nearly three years have elapsed since this Court stayed Dor's deportation.*fn3 On January 15, 1987 Dor filed his application for adjustment of status with the District Director of INS (event 14). The District Director rejected Dor's application for adjustment on the grounds that he was statutorily ineligible (event 17; 1/29/87). The Administrative Appeals Unit (AAU) then advised that Dor "may be eligible to file an application before the District Director (event 19; 10/16/87)." Thereupon, on December 7, 1987, the District Director denied the application without a hearing (event 20). The District Director concluded that Dor was not eligible for adjustment under IRCA § 202(a)(3) because his manslaughter conviction made him an alien who had "been convicted by a final judgment of a particularly serious crime," under § 243(h)(2)(B) of the INA. Dor filed a notice of appeal to the AAU (event 21; 12/28/87), and requested the District Director for a hearing. Before the AAU granted an appeal, the District Director granted Dor a hearing, but again ruled against Dor's application (event 22; 1/23/89).

It Ain't Over Til It's Over

Dor has gone back and forth between the District Director and the AAU in his quest for adjustment. Throughout these legal maneuvers, this Court's stay of mandate alone has kept Dor from being deported. In August 1988 Dor filed a petition in the district court for habeas corpus and mandatory and injunctive relief pursuant to 8 U.S.C. § 1329 (event 31). Specifically Dor seeks release from INS custody while his quest for adjustment proceeds at a snail's pace. At the time the district court denied Dor's application for a preliminary injunction and dismissed the petition for a writ of habeas corpus, 697 F. Supp. 694 (S.D.N.Y. 1988) (event 32; 9/29/88), the January, 1989 decision of the District Director had not issued.

Today as we review the district court's denial of habeas corpus relief, the AAU has affirmed (event 24; 6/12/89) the latest decision of the District Director (event 22; 1/23/89), finding once again that Dor does not have grounds for attaining readjustment under IRCA.*fn4 On August 4, 1989 Dor filed a motion pursuant to 8 C.F.R. § 103.5(a) (1989) seeking AAU reconsideration of that AAU decision (event 25). The AAU denied this motion for reconsideration on September 18, 1989 (event 26), holding that it's previous decision (event 24) thoroughly reviewed the issues and arguments presented in the appeal and reiterated on motion. Meanwhile, on October 11, 1989, the BIA heard oral argument on Dor's motion to reopen his deportation proceedings (event 10).*fn5 This most recent motion to reopen the deportation proceedings has also been denied (event 11; 11/2/89).

I. Issues on Appeal

We are presented initially with the question of whether the district court erred in dismissing Dor's petition for a writ for habeas corpus and request for injunctive relief. We wholeheartedly embrace the district court's conclusions that Dor's continued detention by the INS is legal. We reject Dor's arguments that (i) the detention without bond was without rational basis; (ii) the INS' failure to deport him within six months of the entry of the final deportation order precludes his further detention; and (iii) his extended detention violates due process.

(i) Rational Basis?

The Haitian-Cuban Adjustment provision of IRCA, § 202(a), excludes from its coverage those aliens described in the earlier immigration statute, INA § 243(h), 8 U.S.C. § 1253(h).*fn6 For our purposes, the pertinent subsection of § 243(h) is 243(h)(2)(B), which states that a withholding of deportation shall not be granted when "the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." INA § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B). As the district court pointed out, the Immigration Judge has already made an unambiguous finding in the deportation proceedings (event 3; 4/30/85), and this has been confirmed by the BIA (event 4; 8/20/85), that appellant Dor is within those class of persons defined by § 243(h)(2)(B) of the Act, 8 U.S.C. § 1253(h)(2)(B).*fn7

Dor makes several arguments to challenge the effect of this characterization by the immigration authorities. None of these arguments are persuasive. First, Dor claims that this Court has already determined that his homicide conviction is insufficient to show that he is "dangerous" under INA 243(h)(2), 8 U.S.C. § 1253(h)(2). Dor bases this claim solely on our earlier rejection (event 18; 2/9/87) of the Government's motion to vacate the stay of the mandate (event 16; 1/28/87). But in rejecting the Government's motion to vacate the stay, we neither intended nor intimated a particular substantive ruling, explicit or implied, regarding the merits of either party's claim. Our stay of the mandate was designed simply to allow Dor the ability to maintain administrative review in the INS in light of the passage of IRCA. Since Dor is a Haitian, and IRCA contains a special provision for Haitians, (the Cuban-Haitian Adjustment provision, § 202), we merely considered the obvious possibility that Dor's alien status might be adjusted pursuant to that Act. However, well-established doctrine prevented our judicial interference in administrative decision-making at that incomplete stage of the process.*fn8

Second, Dor contends that the Immigration Judge and the BIA have no jurisdiction to determine his eligibility under IRCA because the act requires the Attorney General to make the status eligibility determination.*fn9 We agree. The proper authority to decide Dor's adjustment application is the Attorney General, and he has delegated that authority, by regulation, to the District Director. 8 C.F.R. § 245.6 (1989). And as we observed, supra, Dor has been pursuing adjustment of status before the District Director and, on appeal, before the AAU. However, merely because the District Director and the AAU have exclusive jurisdiction over Dor's adjustment application does not prevent them from relying on the pre-IRCA interpretation by the Immigration Judge and the BIA that he was not entitled to a withholding of deportation or a grant of asylum under § 243(h)(2)(B) and 8 C.F.R. § 208.8(f). See note 7, supra. The issue was directly and necessarily involved. The district court was entitled to determine this was a rational decision.

(ii) Six Month Deadline

Dor next argues that § 242(c) of INA, 8 U.S.C. § 1252(c), limits the Attorney General to a six month detention period, and since Dor has been held much longer than six months, his release is required.*fn10 But Dor misinterprets the language of the statute and ignores prior decisions of this Court. First, the statute clearly states that the commencement date for the six month period is the date of the final order of a court, where judicial review is sought. But the final order of this Court has not been entered since Dor successfully pursued, and obtained, a stay of the mandate (event 15; 1/20/87). As the district court found, this case is governed by United States ex rel. Cefalu v. Shaughnessy, 117 F. Supp. 473, 474 (S.D.N.Y.), aff'd on opinion below, 209 F.2d 959 (2d Cir. 1954). When the actions of the alien prevent the INS from effecting deportation, delaying tactics do not support the alien's claim for release from deportation. See also Doherty v. Meese, 808 F.2d 938, 941 (2d Cir. 1986); United States ex rel. Lam Tuk Man v. Esperdy, 280 F. Supp. 303, 304 (S.D.N.Y. 1967). Dor contends that the government's formulation of INA § 242(c), 8 U.S.C. § 1252(c) could lead to the detention of an alien in perpetuity, if the INS refrained from adjudicating a pending application for administrative relief for whose explicit adjudication a Court of Appeals has ordered deportation stayed. But this argument assumes the absence of facts critical to the case at hand, i.e., that Dor is largely responsible for the very delay of deportation of which he complains.

(iii) Due Process

Dor's due process claims fail for the same reason. Dor stresses this Court's decision in United States v. Gonzales Claudio, 806 F.2d 334 (2d Cir. 1986), which held that where the Government, "even if not deserving of blame, bears a responsibility for a portion of the delay significant enough to add considerable weight to the [petitioner's] claim that the duration of detention has exceeded constitutional limits," lengthy detention pending resolution of a criminal charge "would exceed even the flexible standards of due process." Id., at 343.

We find Gonzales Claudio not controlling. First, a deportation proceeding is not a criminal proceeding (Gonzales Claudio) and the full trappings of legal protections that are accorded to criminal defendants are not necessarily constitutionally required in deportation proceedings. See Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir. 1977).

Second, while we found that the defendants in Gonzales Claudio bore some responsibility for the delays in that case, a significant portion of the responsibility for the delay fell on the Government. Id. at 342. In Dor's case, on the other hand, the INS issued its first decision on Dor's application for Cuban-Haitian Adjustment on January 29, 1987, two weeks after it was filed. Assuming, without deciding, that within the framework of this Court's very generous stay it was permissible for Dor to pursue repeated, unsuccessful appeals of the various administrative decisions that he is statutorily barred from adjustment, he comes perilously close to Gonzales Claudio's admonition that "[parties] cannot litigate pretrial matters to the ultimate degree and then rely on the extra time attributable to their * * * practice to claim that the duration of pretrial detention violates due process." Id. at 341. After all, Dor's continued presence in the United States, and his sustained detention, result from the simple fact that -- at his urgent request and by our stay -- we allowed his application to be exhaustively adjudicated by the INS. Dor has failed to demonstrate that his continued detention by the INS is a denial of due process requiring his release.

II. What's in Store for Dor?

Dor has vigorously cultivated every avenue of relief open to him: he has sought clemency from the Governor of New York, pursued repeated appeals of his adjustment application to the AAU, tried new motions to reopen his deportation proceedings with the BIA, endeavored to have his felony conviction expunged in the New York state court, and now appeals a petition for habeas corpus and injunctive relief. While the zeal and diligence of his pro bono publico attorney is to be commended, we must recognize that Dor has yet to successfully convince the administrative bodies of the INS that he should be able to remain in the United States.

Satisfaction of Our Stay

As we stated, supra, on January 20th, 1987, the length of stay of our mandate was modified to extend the stay from 21 days to "until such time as the Immigration and Naturalization Service adjudicates the applications for relief from deportation by adjustment of status to lawful permanent resident status under [IRCA § 202]" (event 15).*fn11 Although the terms of our stay are not directly raised on this appeal of a habeas petition, this Court having found the district court's decision unqualifiedly correct is faced with a problem: what happens now? Obviously, this Court has full authority to vacate a stay of its own mandate. See Miller v. Aaacon Auto Transport, Inc., 545 F.2d 1019, 1020 (5th Cir. 1977), cert. denied, 449 U.S. 918, 66 L. Ed. 2d 145, 101 S. Ct. 315 (1980).

In its June 12, 1989 decision, the AAU held that "the sole issue in the proceeding is whether [Dor] is statutorily ineligible for [adjustment of status under subparagraph (a)(3) of § 202 of IRCA]." (event 24) This provision, the AAU observed, "bars the adjustment of 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." The AAU then cited immigration cases as authority that (i) manslaughter in the first degree is a "particularly serious crime," and (ii) no separate determination of dangerousness is necessary once a determination is made that an individual has been convicted of a "particularly serious crime." See, e.g., Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982), and Matter of Carballe, I.D. 3007 (BIA 1986).

Dor's motion to reopen before the AAU (event 25) offered two new facts: (i) the BIA decision dismissing Dor's appeal of the District Director's denial of request for custody redetermination (event 35); and (ii) a copy of the motion filed with the BIA requesting it to reopen Dor's deportation proceedings (event 9). Finding neither fact material, the AAU concluded: "The [BIA's] decision relating to the custody of the applicant and counsel's motion to reopen deportation proceedings are not pertinent to the matter of the applicant's ineligibility for the benefit sought as neither affects the finding that the applicant is statutorily ineligible for adjustment of status."*fn12 (event 26) In light of these final administrative decisions, we find that Dor's application for adjustment of status has been sufficiently adjudicated. Accordingly, our stay is hereby vacated. The stayed mandate should issue forthwith, and the mandate affirming the instant appeal should issue forthwith.





Event Date Event


Deportation Proceedings

1. 12/08/82 INS institutes deportation proceedings

against Dor on the grounds that he

entered the United States illegally.

2. 3/12/85 Deportation hearing held before Immigration

Judge, who concludes that Dor is deportable.

3. 4/30/85 Dor concedes his deportability, but

applies for asylum and a stay of

deportation. The Immigration Judge denies

both of these requests. The Immigration

Judge orders Dor deported and concludes

that Dor, having been convicted of a

"particularly serious crime . . .

constitutes a danger to the community

of the United States," and thus

is statutorily ineligible for withholding

of deportation and not worthy of the

favorable exercise of discretion to be

granted asylum.

4. 08/20/85 BIA upholds Immigration Judge order

of 4/30/85, citing same reasons as the

Immigration Judge for disallowing

asylum and a stay of deportation.

5. 08/29/85 Dor files petition to review BIA action

of 8/20/85 in this Court.

6. 10/29/85 Petition for review of 8/29/85 is

withdrawn with prejudice. Dor loses right to

appeal BIA decision of 8/20/85 before

this Court (effective 12/31/85).

7. 7/3/86 BIA denies Dor's motion to reopen and

reconsider its 8/20/85 decision. Dor's

reliance on the New York State Certificate

of Relief from Disabilities (issued

12/20/85), is misplaced, according to

the BIA, because it has no legal effect

on the finding of deportability.

8. 12/24/86 This Court upholds, the BIA's 7/3/86

decision denying Dor's motion for

reconsideration. Pursuant to Fed.R.

App.P. 41(a), Dor is given 21 days

before the mandate of this Court is

carried out ordering Dor deported.

9. 6/23/89 Dor files motion with the BIA to

reopen his deportation proceedings for

the express purpose of remanding the

matter to the Immigration Judge, for a

hearing and a reconsideration of BIA's

earlier order on whether Dor is an alien

described in § 243(h)(2)(b).

10. 10/11/89 BIA hears oral argument on Dor's

motion to reopen and reconsider his

deportation proceedings.

11. 11/2/89 BIA denies Dor's motion of 6/23/89 to

reopen deportation proceedings.

Adjustment of Status Proceedings

12. 11/06/86 Immigration Reform and Control Act

(IRCA) enacted.

13. 01/13/87 Dor moves this Court to stay its

mandate "until INS adjudicates" his

applications for relief, in light of the passage

of IRCA. (First time IRCA is raised in

Dor's proceedings).

14. 1/15/87 Dor files his adjustment application

with the District Director.

15. 01/20/87 This Court grants Dor's motion of

1/13/87, staying Dor's deportation

pending final adjudication of his

application for adjustment of status as a

Cuban/Haitian entrant under the

provision of section 202 of IRCA.

16. 1/28/87 INS moves to vacate the stay by this


17. 1/29/87 Dor's adjustment application is denied

by the District Director. Dor appeals to

the AAU.

18. 2/9/87 This Court denies the INS's motion, to

vacate its 1/20/87 order staying Dor's

deportation. Consequently, stay issued

on 1/20/87 remains in effect.

19. 10/16/87 AAU refers case back to District Director

for decision on the merits.

20. 12/07/87 District Director denies, without a

hearing, Dor's application on 10/16/87

remand from the AAU.

21. 12/28/87 Dor appeals the 12/07/87 decision to

the AAU.

22. 1/23/89 After a hearing, the District Director

again denies Dor's adjustment application.

In its decision, the District Director

cites the 4/30/85 decision of the

Immigration Judge finding Dor an

alien under § 243(h)(2)(b), the

12/24/86 decision of this Court that

specifically pointed out the Immigration

Judge's 4/30/85 finding, and the

9/30/88 decision of the District Court

dismissing Dor's petition for a writ of

habeas corpus based on what it called

the "incontrovertible" finding that Dor

was an alien described in § 243(h)(2)(b).

23. 4/6/89 Oral argument granted before the AAU.

24. 06/12/89 AAU affirms the District Director decision

of 1/23/89.

25. 08/04/89 Dor files motion seeking AAU

reconsideration and reopening of its 6/12/89


26. 9/18/89 AAU denies Dor's 8/4/89 motion to

reopen and reconsider his Cuban-Haitian

adjustment application.

Custody/Habeas Proceedings

27. 5/20/84 Dor released by New York into INS


28. 7/2/86 Dor requests that the District Director

set conditions for his release.

29. 10/3/86 District Director, pursuant to Dor's

7/2/86 request, reinstates bond in this

case in the amount of $20,000. Dor

does not post bond and remains in


30. 12/31/86 District Director again revokes Dor's

bond and orders him detained in

Service custody.

31. 8/19/88 Dor files a petition for a writ of habeas

corpus (for release from custody while

INS process continues) in U.S. District


32. 9/29/88 District Court denies Dor's habeas corpus

claims. Dor Appeals to this Court.

33. 10/4/88 Dor requests the District Director for a

reconsideration of his custody status.

34. 10/26/88 District Director denies Dor's 10/4/88

request for reconsideration. District

Director concludes in its denial that the

basis of the request, i.e., the AAU's

interest in the case, was severely

diminished by the 9/29/88 dismissal of the

respondent's petition for a writ of

habeas corpus by the District Court.

Specifically, the District Director

emphasized the District Court's finding

that the INS detention of Dor was not

an abuse of discretion. In addition, the

District Director finds significant the

District Court's consideration of the

respondent's eligibility for adjustment

of status as a Cuban/Haitian entrant

and its conclusion that the respondent's

appeal from the denial of his application

was not likely to succeed. Dor ordered to

remain detained without bond.

35. 4/26/89 BIA affirms the District Director's

10/26/88 denial of Dor's request for

redetermination of his custody status.

BIA asserts lack of jurisdiction over all

issues raised with regard to Dor's

Cuban-Haitian adjustment application.

BIA limits its inquiry on appeal to a

review of the custody determination of

the District Director as it relates to the

necessity for and the appropriate

amount of bond to ensure Dor's

availability for deportation. Upon

consideration of the facts and evidence

presented in this particular case, the

BIA concludes that Dor is a substantial

bail risk and that he should not be

released from INS custody.

Other Proceedings

36. 1972 Dor enters the United States without

valid entry documents.

37. 11/17/78 Dor sentenced to a New York prison

term of 5-15 years for first-degree


38. 6/1/88 Dor's motion to vacate his felony

conviction is denied by the New York State

Supreme Court, Kings County.

39. 6/19/88 Dor's request for executive clemency is

denied by the New York Executive

Clemency Bureau.

40. 7/5/88 Dor files a motion before the Appellate

Division for a certificate granting leave

to appeal the 6/1/88 denial by the New

York State Supreme Court, Kings County.

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