390 U.S. 918. For reasons that follow, we affirm. Compare the following: Skiftos v. Immigration Naturalization Service, 332 F.2d 203 (C.A. 7th Cir.); Talavera v. Pederson, 334 F.2d 52 (C.A. 6th Cir.); Samala v. Immigration Naturalization Service, 336 F.2d 7 (C.A. 5th Cir.); Mendez v. Major, 340 F.2d 128 (C.A. 8th Cir.); Melone v. Immigration Naturalization Service, 355 F.2d 533 (C.A. 7th Cir.); Mui v. Esperdy, 371 F.2d 772 (C.A. 2d Cir.); Yamada v. Immigration Naturalization Service, 384 F.2d 214 (C.A. 9th Cir.); De Lucia v. Attorney General, ___ U.S.App.D.C. ___, ___ F.2d ___. I.
. 1965); Enciso-Cardozo v. INS, 504 F.2d 1252, 1253 (2d Cir. 1974) (involving the right of an infant to intervene in review of his mother's request for extended voluntary departure); Ferreira v. Shaughnessy, 241 F.2d 617 (2d Cir. 1957) (court declined to review refusal to suspend deportation to alien who would receive compensation award only if he remained in the United States); Prassinos v. District Director, 193 F. Supp. 416 (N.D.Ohio 1960), aff'd 289 F.2d 490 (6th Cir.), cert. denied, 366 U.S. 966, 81 S.Ct. 1925, 6 L.Ed.2d 1256 (1961) (stay requested to prosecute workmen's compensation claim); Polites v. Sahli, 302 F.2d 449 (6th Cir.), cert. denied, 371 U.S. 916, 83 S.Ct. 259, 9 L.Ed.2d 175 (1962) (incapacitating heart condition); Roumeliotis v. INS, 304 F.2d 453 (7th Cir.), cert. denied, 371 U.S. 921, 83 S.Ct. 288, 9 L.Ed.2d 230 (1962) (stay requested pending passage of private bill in Congress); Dentico v. INS, 303 F.2d 137, 138 (2d Cir. 1962) (incapacitating physical condition); Melone v. INS, 355 F.2d 533 (7th Cir. 1966) (desire to visit mentally ill brother). The district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of this subchapter.
Thus, the scope of our review is limited to determining whether the district director abused his discretion. We cannot substitute our judgment for his. Melone v. Immigration Nat. Serv., 355 F.2d 533 (7th Cir. 1966); Polites v. Sahli, 302 F.2d 449, 451 (6th Cir.), cert. denied, 371 U.S. 916, 83 S.Ct. 259, 9 L.Ed.2d 175 (1962); Lam Tat Sin v. Esperdy, 227 F. Supp. 482, 486 (S.D.N.Y. 1964). In the present case, appellant requested a stay in order to process his applications for preference status and a visa.
See also Foti v. Immigration Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281; Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90, in which the Supreme Court has taken a more liberal view of the jurisdiction of Courts of Appeals in reviewing orders of the Immigration Service. Roumeliotis v. Immigration and Naturalization Service, 304 F.2d 453 (C.A.7), cert. den. 371 U.S. 921, 83 S.Ct. 288, 9 L.Ed.2d 230; Blagaic v. Flagg, 304 F.2d 623 (C.A.7); Skiftos v. Immigration and Naturalization Service, 332 F.2d 203 (C.A.7); Melone v. Immigration and Naturalization Service, 355 F.2d 533 (C.A.7); Talavera v. Pederson, 334 F.2d 52 (C.A.6). The decisions of the Immigration Service which the petitioners seek to review are, in substance, part of the final order of deportation and we hold that we have jurisdiction to determine the appeal on its merits.
Skiftos v. Immigration Naturalization Service, 332 F.2d 203 (7th Cir. 1964); Roumeliotis v. Immigration Naturalization Service, 304 F.2d 453 (7th Cir. 1962). Cf. Melone v. Immigration Naturalization Service, 355 F.2d 533 (7th Cir. 1966); Talavera v. Pederson, 334 F.2d 52, 56 (6th Cir. 1964). The Courts of Appeals for the Second and Third Circuits have held to the contrary.
The Seventh Circuit has adhered to its pre- Foti decisions of Blagaic v. Flagg, 304 F.2d 623 (C.A.7, 1962), and Roumeliotis v. Immigration and Naturalization Service, 304 F.2d 453 (C.A.7), cert. denied, 371 U.S. 921, 83 S.Ct. 288, 9 L.Ed.2d 230 (1962), which hold that any administrative determination that involves the execution or suspension of the deportation order is ancillary to that order and is reviewable in the court of appeals. Melone v. INS, 355 F.2d 533 (C.A.7, 1966); Skiftos v. INS, 332 F.2d 203 (C.A.7, 1964). The Sixth Circuit also appears to have adopted that construction of the Act.
After a review of the authorities this Court held in Tai Mui v. Esperdy, 371 F.2d 772, 775-777 (2 Cir. 1966), cert. denied, 386 U.S. 1017, 87 S.Ct. 1372, 18 L.Ed.2d 454 (April 24, 1967), that a denial of a stay of deportation sought after deportation has been ordered is not a "final orders of deportation * * * pursuant to administrative proceedings under section 242(b) of [the Immigration and Nationality Act]" made reviewable in a Court of Appeals by section 106(a) of the Act, 8 U.S.C.A. § 1105a(a). Petitioners here do not dispute this reading of Tai Mui, but contend that contrary holdings of the Seventh Circuit (see e.g. Melone v. Immigration and Naturalization Service, 355 F.2d 533 (7 Cir. 1966)) should be followed instead, and that uncertainty as to the holdings of other circuits should lead us to retain jurisdiction at least temporarily. It is a sufficient answer that this Court has ruled on the matter, and certiorari has been denied by the Supreme Court. From a history of these and similar petitions it becomes apparent that their purpose is to secure delay of deportations by means of fruitless jurisdictional disputes.
The Supreme Court's decisions do not demand or even justify our recasting § 106(a) so as to give the courts of appeals exclusive jurisdiction over all orders made by immigration officers which might affect the deportation of aliens, subject only to the recognized exception for habeas corpus; if Congress had wanted to go that far, presumably it would have known how to say so. We recognize that the Seventh Circuit has taken or at least come close to taking this position, see Roumeliotis v. Immigration and Naturalization Service, 7 Cir., 304 F.2d 453, cert. denied, 371 U.S. 921, 83 S.Ct. 288, 9 L.Ed.2d 230 (1962) [denial of first preference visa and stay of deportation]; Skiftos v. Immigration and Naturalization Service, 7 Cir., 332 F.2d 203 (1964) [denial of first preference visa]; Melone v. Immigration and Naturalization Service, 355 F.2d 533 (7 Cir. 1966) [denial of stay of deportation in order to visit brother confined in mental hospital], and we appreciate that such a view has the merit of avoiding sterile jurisdictional controversy. But we do not feel warranted in going so far beyond the words that Congress used; indeed, we are already committed against any such broad position. Lam Tat Sin v. Esperdy, 227 F. Supp. 482, 484 n. 2 (S.D.N.Y.), aff'd without discussion of the point, 334 F.2d 999 (2 Cir.), cert. denied, 379 U.S. 901, 85 S.Ct. 190, 13 L.Ed.2d 176 (1964).
As to petitioner's second contention that he is entitled to a stay of deportation, that determination is entirely within the discretion of the District Director under 8 C.F.R. § 243.4. A denial by the District Director is not appealable and judicial review is limited to a determination as to whether there has been an abuse of discretion. Melone v. Immigration and Naturalization Service, 355 F.2d 533 (CCA 7th 1966); Say v. Del Guercio, 237 F.2d 715 (CCA 9th 1956); Polites v. Sahli, 302 F.2d 449 (CCA 6th 1962), cert. denied, 371 U.S. 916, 83 S.Ct. 259, 9 L.Ed.2d 175 (1962). "Sec. 243.4 Any request by an alien under a final administrative order of deportation for a stay of deportation, except a request for withholding of deportation pursuant to section 243(h) of the Act [because of physical persecution], shall be filed on Form I-246 with the district director having jurisdiction over the place where the alien is at the time of filing.
Wu Chun Hin v. Rinaldi, No. 402-66 (D.N.J. 1966); Lam Ying Kwan, et al. v. Rinaldi, No. 483-66 (D.N.J. 1966). A similar decision was reached in Melone v. I.N.S., 355 F.2d 533 (7 Cir. 1966). See e.g. Samala v. I.N.S., 336 F.2d 7 (5 Cir. 1964); Talavera v. Pederson, 334 P.2d 52 (6 Cir. 1964); Skiftos v. I.N.S., 332 F.2d 203 (7 Cir. 1964); Scalzo v. Hurney, 338 F.2d 339 (3 Cir. 1964); Mendez v. Major, 340 F.2d 128 (8 Cir. 1965).