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In re Ghalamsiah

argued: September 18, 1986.

IN THE MATTER OF ALI REZA GHALAMSIAH, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, APPELLANT


Appeal from the United States District Court for the District of New Jersey - Newark D.C. Civil No. 86-0767.

Author: Rosenn

Before: SEITZ, SLOVITER, and ROSENN, Circuit Judges.

ROSENN, Circuit Judge

Although appeals to this court in alien deportation cases are not infrequent, this case is unusual because the Government is the appellant. The appeal raises a narrow issue of considerable importance to the Government concerning the power a district court under the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1503, to release an alien on bail pending a motion to reopen the deportation proceedings and stay deportation. The district court stayed deportation and ordered the alien, Ali Reza Ghalamsiah, released from custody pending hearing on the motion to reopen upon the posting of a $1,000 bond. The Government appeals only from the order releasing Ghalamsiah on bail. We reverse.

I.

Ali Reza Ghalamsiah is an Iranian who first came to the United States on a student visa in 1971. Other than a brief visit to Iran in 1974, he has remained in the United States since 1971. The last extension of his visa expired June 30, 1977.

On October 7, 1977, Ghalamsiah married Judy Lee Jackson, a United States citizen. She filed a visa petition on behalf of her husband, who then applied for adjustment of his status to permanent residency based on the marriage. On February 28, 1979, Jackson withdrew the petition, stating that although she had entered the marriage in good faith, Ghalamsiah had married her only to obtain resident status, and that the couple had never lived together. They were divorced in September 1982.

The Immigration and Naturalization Service (INS) notified Ghalamsiah of the withdrawal of the petition and the consequent denial of his application for permanent resident status in April 1979. Although the INS granted him thirty days voluntary departure time, he did no depart. On November 15, 1979, INS officers arrested Ghalamsiah and commenced deportation proceedings.

At his deportation hearing, Ghalamsiah conceded his deportability, but applied for asylum or withholding of deportation pursuant to 8 U.S.C. § 1254(a)(1). He claimed that he would be persecuted in Iran because: he had received scholarship money from the previous government under the Shah; he, a Muslim, had married a non-Muslim citizen of the United States (Jackson); and he had applied for asylum. The immigration judge denied Ghalamsiah's applications, but granted him ninety days voluntary departure time. The Board of Immigration Appeals (BIA) dismissed his appeal, but granted him thirty days voluntary departure time. This court denied review of the BIA decision, and the INS issued a warrant for his deportation.

In February 1985, the INS instructed Ghalamsiah to appear at its office ready for deportation on March 5, 1985. When he appeared showing that he had filed a petition for review that day, deportation was automatically stayed. This court affirmed his deportation. Ghalamsiah v. INS, 779 F.2d 42 (3d Cir. 1985).

On January 31, 1986, the INS ordered Ghalamsiah to surrender for deportation on February 19, 1986. He did not appear, breaching a $2,000 bond posted for his appearance. He explains his failure to appear as being due to his fear of appearing without counsel.*fn1

On February 24, 1986, Ghalamsiah showed upon at the Franklin Lakes, New Jersey, municipal building with his fiancee, Shahin Pirian, where they were to be married by the mayor. Pirian, also a native and citizen of Iran, is Jewish and had been granted political asylum because of the risk of persecution she would face in Iran.*fn2 Just before the ceremony. INS officers arrested Ghalamsiah and detained him at the Passaic, New Jersey, County Jail, and rescheduled him for deportation on February 26. On February 26 Ghalamsiah filed a petition for a writ of habeas corpus. The district court issued a temporary restraining order barring deportation. It further ordered that Ghalamsiah be allowed to marry Pirian at the county jail. They were married the next day.

Several days later Ghalamsiah applied for a stay of deportation, and his new wife filed a second preference visa petition on his behalf. In his petition, Ghalamsiah alleged that he feared persecution in Iran due to his marriage to a Jewess and to his intention to convert to Judaism, that he feared he would be unable to leave Iran to rejoin his wife, and that his wife could not reenter Iran. He also filed a separate motion to reopen the deportation proceedings to allow him to reapply for asylum, for withholding of deportation, and for suspension of deportation.

On March 6, 1986, the district director denied Ghalamsiah's stay of March 3, 1986, citing his prior immigration history, including his prior marriage, absence of evidence that he would face persecution in Iran, and his failure to report for deportation as the bases for the unfavorable exercise of discretion. The director denied Ghalamsiah's request for bail because of the imminence of deportation made him a poor bail risk. The motion to reopen and Ghalamsiah's petition to classify him for an immigrant habeas corpus petition, the district court ordered a stay of deportation ...


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