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THAUSE v. MCELROY

June 20, 1994

DAVID MOSHE THAUSE, Petitioner,
v.
EDWARD J. McELROY, ASSISTANT DISTRICT DIRECTOR FOR DEPORTATION, UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK DISTRICT, Respondent.



The opinion of the court was delivered by: MIRIAM GOLDMAN CEDARBAUM

 CEDARBAUM, J.

 David Moshe Thause, a citizen of Israel who has been ordered deported and is being detained by the Immigration and Naturalization Service ("INS"), petitions this court for a writ of habeas corpus and seeks an order staying his deportation. On May 20, 1994, Judge Lasker directed respondent Edward J. McElroy, Assistant District Director for Detention and Deportation, to show cause why an order should not be issued granting petitioner a stay of deportation pending the appeal of the denial of his motion to reopen, and releasing petitioner from INS detention on a $ 2,000 bond. At oral argument on May 27, 1994, respondent represented to the court that Thause's deportation has been stayed pending his appeal, and this fact has since been confirmed by the INS. See Letter from Roseanne Sonchik, Assistant District Director for Detention and Deportation, to Paul I. Freedman, Attorney for Thause, June 3, 1994 at 1 ("Sonchik Letter"). Although the INS had not yet ruled on Thause's application for release on bond at the time this petition was filed, a decision denying his release has since been issued. Thause argues that the denial of bond was an abuse of discretion, and petitions this court for his immediate release. For the reasons discussed below, Thause's petition for a writ of habeas corpus is denied.

 Background

 On July 27, 1992, neither Thause nor his attorney appeared at the scheduled hearing. After an in absentia hearing, *fn2" the IJ ordered Thause deported pursuant to 8 U.S.C. § 1251(a)(1)(C)(i). After the hearing had been completed, the IJ received an undated memorandum from Thause's attorney requesting an adjournment, but the IJ declined to vacate his decision. Thause appealed the order of deportation to the Board of Immigration Appeals ("BIA"). On February 22, 1993, the BIA issued an opinion stating that the appropriate course of action was not to appeal to the BIA, but to file a motion to reopen with the IJ. Pursuant to 8 U.S.C. §§ 1252b(c)(3) & (f)(2), an alien may move to reopen his case upon a showing that he did not receive notice of his hearing or that his failure to appear was due to "exceptional circumstances," which includes a "serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances." The BIA did not review the IJ's order, but instead remanded the case to the IJ, who scheduled a hearing for January 7, 1994 to decide the motion to reopen.

 On January 7, 1994, Thause did not appear at the scheduled hearing on the motion to reopen. After learning that Thause was in prison in Las Vegas, the IJ administratively closed the case, pending his release. On February 14, 1994, the INS filed a motion to reconsider the administrative closing, and requested a ruling on the motion to reopen. In an opinion issued on April 4, 1994, the IJ granted the INS' motion to reconsider and denied Thause's motion to reopen, stating that a motion to reopen should be supported by affidavits and other evidence and that Thause's presence was not required. He noted that although several reasons had been provided for the failure of Thause's counsel to appear at the July 27, 1992 hearing, Thause had failed to provide any reason why he himself had failed to appear. On April 18, 1994, Thause appealed this decision to the BIA. Thause, who was acquitted of the federal charge in Las Vegas, has been in INS custody since April 8, 1994.

 Discussion

 Following a decision by the INS to deny bond, a writ of habeas corpus granting petitioner's release may be issued only "on 'a clear and convincing showing that the decision against him was without a reasonable foundation.'" United States ex rel. Belfrage v. Shaughnessy, 212 F.2d 128, 129 (2d Cir. 1954) (quoting United States ex rel. Potash v. District Director, 169 F.2d 747, 751 (2d Cir. 1948)); see Doherty v. Meese, 808 F.2d 938, 942 (2d Cir. 1986). The INS' decision is subject to review for an abuse of discretion. See United States ex rel. Yaris v. Esperdy, 202 F.2d 109, 111-12 (2d Cir. 1953).

 In a letter dated June 3, 1994, the District Director gave the following reasons for denying Thause's bond:

 
The INS also believes that David Thause has little likelihood of success on his pending appeal to the Board. Furthermore, even if he was successful on appeal, it is very unlikely that he will succeed in obtaining asylum, or withholding of deportation, given his serious criminal record. This is a strong incentive for David Thause to again absent himself from deportation.
 
David Thause failed to appear for his deportation hearing and has not satisfactorily explained his absence. It is believed that he is a danger to the community, poses a risk of flight and is unlikely ...

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