Opinion
Case No. 02 C 2988
May 6, 2002
ORDER
I have before me a motion for an emergency stay of deportation. Stanislaw Pilch is in the custody of the District Director of the INS. His spouse is also subject to deportation but she is not behind bars. Their three children, the other petitioners, are 13, 12 and 10 years old respectively. The two adults want deportation stayed because they are statutorily eligible for Suspension of Deportation and have moved before the Board of Immigration Appeals for such relief No ruling has been had. They asked the District Director to stay deportation until the Board rules but he has not decided the question. That request was made on April 23. On April 25, Stanislaw Pilch was taken into custody. Zofia Pilch was allowed to remain in constructive custody so that she could care for her children who are United States citizens by reason, I infer, of birth. This emergency petition was filed on April 26.
There is no allegation here that deportation is imminent. I do not see why deportation needs to be stayed by court order. Custody does exist and, particularly, Stanislaw Pilch wants to be released from custody. This is a more pressing question. The petitioners were originally granted voluntary departure — 30-days from December 3, 1996 — which they did not make. They did not do this because they would lose their right to have the Board of Immigration Appeals reconsider their case and also their right to have the Court of Appeals decide their petition for review. This is understandable, but the equity of their position loses a lot of its force because both appeals were lost. Their argument is simply that the loss of the rights to appeal is an extraordinary circumstance. This seems to be a wrongful reading of legislative policy. See Matter of Shaar, 21 IN Dec. 541 aff'd 141 F.3d 953 (9th Cir. 1998). What seems to be happening here is that petitioners declined the voluntary departure they were offered. Had they departed, their children would have returned to Poland with them when the children were, at most, 8, 7 and 5, a time when adjustment would have been much easier for them. Now the children who, apparently, speak but neither read nor write Polish would have a more difficult time of it. The exceptional circumstances before me today are mostly due to the conduct of the Pilch parents. Arguably, they are entirely so. The children were born in the United States simply because their parents entered the country and sought to remain on the basis of inadequate claims of political asylum. The ultimate decision as to whether they ought to be permitted to remain is not for me to make but for the Board of Immigration Appeals to make. I consider the background of this case solely to determine whether it is a violation of due process for the INS to hold the parents in custody. I think that it is not. There is certainly an adequate legal basis to hold them in custody. These are persons who ignored their obligation to depart voluntarily for the sole purpose of presenting meritless challenges to the demand that they leave the country. They placed their own children at some risk to do so. The District Director could reasonably determine that only custody will assure their departure from the United States. Of course, it could turn out that the Board, of Immigration Appeals will, on the full record before them, decide that their course of conduct and the fate of their children by deciding that the Pilch family ought to be allowed to remain in the United States, but I cannot find that the District Director has violated due process in placing Stanislaw Pilch in custody and Zofia Pilch in constructive custody. Nor do I find that he has denied due process in failing to rule on the application for stay. I reiterate that I do not believe that the motion to stay is ripe for decision. If and when it does, I shall consider that question separately.
Motion for emergency stay of deportation is DENIED.