TJOFLAT, Circuit Judge:
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.
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. § 1226 (1982) and 8 C.F.R. § 236 (1985). In each case, the immigration judge determined that the petitioners were excludable aliens and should be deported to Cuba.
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
In an effort to prevent deportation, petitioners filed, pursuant to 8 C.F.R. § 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 director
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,
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.
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 director
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.
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. § 1158 (1982),
Petitioners do contend, however, that the district director should have granted their request for the withholding of exclusion pursuant to 8 U.S.C. § 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. §§ 208.3(b), 208.11 (1985); 8 C.F.R. § 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. § 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. § 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,
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
VANCE, Circuit Judge, concurring in result:
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.
By 8 C.F.R. § 237.1, the Attorney General has delegated all his authority under 8 U.S.C. § 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., 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). Because 8 C.F.R. § 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.
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 orders
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. §§ 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. § 1253(h)(2)(B) or § 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. § 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.
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. § 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.
The first question certified by the district court pursuant to 28 U.S.C. § 1292(b) is:
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
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").
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
The district court also certified the following question:
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. § 1253(h)(2)(B) or § 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.
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.
8 U.S.C. § 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. § 243.4 (1985), the regulations have restricted such power where an alien has been held excludable. Under 8 C.F.R. § 237.1 (1985) the district director may stay the deportation of an excluded alien pursuant to 8 U.S.C. § 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. § 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. § 243.4 (1985), while it also acknowledges the efficacy of section 1227(d).
8 C.F.R. § 208.8(f) (1985), provides in pertinent part:
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.