challenge to the findings and decision of the BIA.
Denial of an application for suspension of deportation constitutes a final order of deportation. Foti v. Immigration and Naturalization Service, 375 U.S. 217, 11 L. Ed. 2d 281, 84 S. Ct. 306 (1963). Exclusive jurisdiction lies with the Court of Appeals to review final orders of deportation, thus, this Court does not have jurisdiction to review the BIA's decision. In re Matter of Ramirez-Rodriguez v. Perryman, 1996 U.S. Dist. LEXIS 13550, 1996 WL 529464, at *1 (N.D. Ill. 1996); Saleh v. Meese, 669 F. Supp. 885, 890 (N.D. Ill. 1987).
Nevertheless, I construe Lachin's petition for habeas corpus to also appeal the District Director's denial of her application for a stay of deportation. This Court has jurisdiction over this appeal since a District Director's denial of a stay request is not a final order. Dunkley v. Perryman, 1996 WL 464191, at *3 (N.D. Ill. 1996), citing Cheng Fan Kwok v. Immigration Naturalization Service, 392 U.S. 206, 20 L. Ed. 2d 1037, 88 S. Ct. 1970 (1968). The District Director's grant or denial of a stay of deportation is a discretionary act. Thus, review of a denial of a stay of deportation is limited to whether the District Director's decision was an abuse of discretion. Dunkley, 1996 WL 464191, at * 4. An abuse of discretion may be found only if there is no evidence to support the decision or the decision is based on an improper understanding of the law. Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir. 1985).
I find the District Director did not abuse his discretion in denying Lachin's application. The District Director found that Lachin had consistently refused to depart the country voluntarily or by order. The District Director also found that Lachin failed to submit evidence to substantiate her various claims of hardship either to herself or her parents. In making these determinations, the District Director set forth the full history of Lachin's case and evaluated the evidence presented. Lachin contests the District Director's findings that she never made an effort to pursue her permanent residence and that she did not submit evidence to substantiate her claims of hardship. She also claims that it is incredulous to assert that her claims are unsubstantiated when the world knows of the present conditions in Iraq. However, the reasons given for the denial do not have to be compelling or even convincing to be sufficient. Achacoso-Sanchez v. Immigration Naturalization Service, 779 F.2d 1260, 1266 (7th Cir. 1985). All that is required is that the decision be reasoned. A District Director does not abuse his discretion in denying a stay of deportation when there is evidence to support the decision and the director gives reasons for his decision and when the decision is not based on an improper understanding of the law. Furthermore, the District Director's decision is not inconsistent with INS policy to deny a stay of deportation where the petitioner has failed to depart as required, particularly where she has been given several opportunities to do so. Id.
(3) Next, Lachin claims that based upon the approval of her visa petition she qualifies as an F2B beneficiary with a current visa priority. As a result, Lachin asserts that her departure would be a violation of the INS regulations which prohibit the deportation of an alien whose visa is within 60 days of being current. Lachin fails to cite the INS regulation which supports her proposition and I have failed to locate it.
(4) Finally, Lachin has filed a motion to reopen her deportation proceedings and a request for stay of deportation and an application for advance permission to reapply for admission after deportation. All applications are pending. Lachin asserts that it would be unjust to deport her from the United States while an administrative decision is pending in her case. She also claims that a denial of her request would result in a denial of fundamental fairness and due process. The Seventh Circuit has made it clear that the enforcement of a deportation order may take place while a motion to reopen and/or a request for a stay of deportation are pending and furthermore, that such an act does not violate due process. Bothyo, 772 F.2d at 356-57 (7th Cir. 1985) (a person's filing of a request for a stay of deportation does not relieve them from strictly complying with any outstanding notice to surrender for deportation); Abazi v. Immigration and Naturalization Service, 1996 U.S. Dist. LEXIS 11087, 1996 WL 446893, at *4 (N.D. Ill. 1996).
The motion to dismiss is granted.
Judge James B. Zagel
United States District Judge
DATE: NOV 26 1996
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