The opinion of the court was delivered by: SAMUEL CONTI
Petitioner John Narayan ("Narayan") seeks a writ of habeas corpus barring the Immigration and Naturalization Service ("INS") from deporting him to Fiji, pending a decision by the Board of Immigration Appeals ("BIA") on his motion to reopen deportation proceedings.
Narayan is a native and citizen of Fiji, and is of Indian descent. He entered the United States as a visitor on March 29, 1986, and was authorized to remain until September 28, 1986. He was accompanied by his wife and one child. Narayan has been in the United States ever since.
Narayan began working without authorization in August 1986. The INS subsequently initiated deportation proceedings, and Narayan first appeared before an Immigration Judge ("IJ") in November, 1987. During those proceedings, Narayan applied for political asylum, based upon the hostile climate toward Fijians of Indian descent.
After a hearing on the merits, the IJ denied the application, finding that petitioner had not been subject to persecution in Fiji. Accordingly, the IJ on May 13, 1988 ordered that Narayan could have thirty days to depart the country voluntarily; should he fail to do so, he would be subject to immediate deportation without further notice.
Narayan appealed the decision of the IJ to the BIA, which affirmed the decision denying asylum on November 20, 1990. The BIA again gave Narayan 30 days in which to depart voluntarily, or else be subject to deportation in accord with the IJ's order.
After the thirty-day period had run, the INS on December 27, 1990 issued a notice to appear for deportation on January 22, 1991. Narayan on January 18, 1991 appealed to the Ninth Circuit; that appeal stayed the deportation automatically. The Ninth Circuit affirmed the decision yet again on April 9, 1992. Narayan v. INS, 959 F.2d 241.
On June 18, 1992, Narayan filed a motion to reopen his case with the BIA. That motion has not been ruled upon, and the INS filed its opposition on August 7, 1992. On August 4, 1992, Narayan was arrested and taken into custody by the INS. He was subsequently released on bond of $ 5,000. Narayan sought a stay of deportation from the BIA, which denied his application. He then filed the instant petition for a writ of habeas corpus and for an order barring the INS from deporting him pending resolution of his motion to reopen.
Narayan presents two arguments to this court in support of his motion. First, he argues, it was arbitrary and capricious for the BIA to deny his application for a stay without issuing a reasoned opinion. Second, he argues, the INS abused its discretion in failing to follow its usual procedures in deporting him.
The INS, in turn, disputes Narayan's arguments. In addition, they argue that Narayan has failed to exhaust his administrative remedies, and that he has failed to join an indispensable party (the BIA).
A. Exhaustion of Remedies.
The INS argues that Narayan has failed to exhaust administrative remedies by choosing to seek a stay directly from the BIA, rather than from the District Director. However, the INS cites no authority for the proposition that an alien must seek a stay in all of the alternative administrative fora available to him. The statutory language cited, 8 U.S.C. § 1105a(c), is inapposite, as it governs review of final orders of deportation.
Here, however, Narayan is challenging not a final order, but a discretionary denial of a stay by the BIA. No further administrative relief from that denial is available, regardless of ...