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appealmotionwillleasedivorceparoledeportationbad faith
appealmotionwillleasedivorceparoledeportationbad faith

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U.S. Anderson v. McElroy

Facts

In 1972, Reginald John Anderson came to the United States from Jamaica as a non-immigrant visitor. Two years later, he married Rose Lopez, a legal permanent resident of the United States. The couple had two children, who are now seventeen and fifteen years of age. On January 21, 1983, Anderson became a legal permanent resident on the petition of his wife Rose. Later that year, the couple divorced. In May 1987, Anderson was convicted, in the United States District Court for the Western District of Kentucky, of possession, with intent to distribute, marijuana, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. Anderson served two years of his sentence and was released on parole. Following Anderson's conviction, the INS sought to deport him to Jamaica, pursuant to INA 241(a)(11), 8 U.S.C. 1251(a)(11). Thereafter, on August 15, 1989, an IJ issued an order of deportation against Anderson, concluding that he was deportable as a result of his conviction. Anderson appealed this decision to the BIA.

In 1972, Reginald John Anderson came to the United States from Jamaica as a non-immigrant visitor. Two years later, he married Rose Lopez, a legal permanent resident of the United States. The couple had two children, who are now seventeen and fifteen years of age. On January 21, 1983, Anderson became a legal permanent resident on the petition of his wife Rose. Later that year, the couple divorced. In May 1987, Anderson was convicted, in the United States District Court for the Western District of Kentucky, of possession, with intent to distribute, marijuana, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. Anderson served two years of his sentence and was released on parole. Following Anderson's conviction, the INS sought to deport him to Jamaica, pursuant to INA 241(a)(11), 8 U.S.C. 1251(a)(11). Thereafter, on August 15, 1989, an IJ issued an order of deportation against Anderson, concluding that he was deportable as a result of his conviction. Anderson appealed this decision to the BIA.

Issue

The central question presented by this appeal is whether the BIA abused its discretion by failing to grant petitioner a stay of deportation, pending disposition of his motion to reopen deportation.

The central question presented by this appeal is whether the BIA abused its discretion by failing to grant petitioner a stay of deportation, pending disposition of his motion to reopen deportation.

Rule

In reviewing the BIA's denial of a stay of deportation pursuant to a habeas petition, a district court applies an abuse of discretion standard.

In reviewing the BIA's denial of a stay of deportation pursuant to a habeas petition, a district court applies an abuse of discretion standard.

Analysis

The BIA, concluding that, 'there [was] little likelihood that the motion [to reopen] will be granted,' denied Anderson's motion to stay his deportation. We believe, however, that Anderson's motion to reopen should be fully litigated. The BIA's cryptic order denying the stay, although ostensibly based on the full record, is devoid of any reasoning and thus also is an abuse of discretion. Where the BIA's discretion is 'exercised irrationally or in bad faith' it is an abuse of discretion.

The BIA, concluding that, 'there [was] little likelihood that the motion [to reopen] will be granted,' denied Anderson's motion to stay his deportation. We believe, however, that Anderson's motion to reopen should be fully litigated. The BIA's cryptic order denying the stay, although ostensibly based on the full record, is devoid of any reasoning and thus also is an abuse of discretion. Where the BIA's discretion is 'exercised irrationally or in bad faith' it is an abuse of discretion.

Conclusion

Based on the foregoing, we reverse the judgment of the district court and remand for additional proceedings.

Based on the foregoing, we reverse the judgment of the district court and remand for additional proceedings.

Who won?

Anderson prevailed in the case because the court found that the BIA abused its discretion by failing to grant a stay of deportation to allow full consideration of petitioner's motion to reopen deportation proceedings.

Anderson prevailed in the case because the court found that the BIA abused its discretion by failing to grant a stay of deportation to allow full consideration of petitioner's motion to reopen deportation proceedings.

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