eskander-assaf-v-james-montgomery-in-his-capacity-as-district-director , 996 F.2d 1214 ( 1993 )

996 F.2d 1214

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Eskander ASSAF, Petitioner-Appellant,
v.
James MONTGOMERY, in his capacity as District Director,
Immigration and Naturalization Service;
Immigration and Naturalization Service,
Defendants-Appellees.

No. 92-2437.

United States Court of Appeals, Sixth Circuit.

June 25, 1993.

Before MARTIN, SILER and BATCHELDER, Circuit Judges.

ORDER

1

Eskander Assaf, a federal prisoner represented by counsel, appeals a district court judgment denying his motion for a temporary restraining order and petition for a writ of habeas corpus construed to be filed under 28 U.S.C. § 2241. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

By way of background, Assaf, a native of Syria, became a lawful permanent resident in June 1987. In January 1989, Assaf was convicted of two state drug offenses for possession and delivery of cocaine. Thereafter, the Immigration and Naturalization Service (INS) held a deportation hearing wherein Assaf was determined to be deportable. Next, the Board of Immigration Appeals (BIA) dismissed Assaf's untimely appeal. Thereafter, Assaf filed a motion to reopen his case; the BIA informed Assaf that there was little likelihood that the motion would be granted, and therefore it denied his request for a stay of deportation. (Att. 6). The INS advised Assaf to appear for deportation on November 4, 1992.

3

On November 5, 1992 the BIA denied Assaf's request for a stay of deportation, and on November 9, the INS denied a similar request. In his habeas petition, Assaf seeks review of the denial of his requests for a stay of deportation, as well as a temporary restraining order. (Att. 3). The district court denied Assaf's motion and dismissed his habeas petition as without merit. Following his timely appeal, a panel of this court granted Assaf's motion for injunction pending appeal.

4

Upon review, we affirm the district court's judgment because Assaf has not established a fundamental defect in the proceedings resulting in a complete miscarriage of justice. Cf. Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir.1989), cert. denied, 495 U.S. 950 (1990). The BIA did not abuse its discretion when it denied Assaf's various requests for a stay of deportation. See 8 C.F.R. § 3.2; Dokic v. Immigration and Naturalization, Serv., 899 F.2d 530, 532 (6th Cir.1990).

5

Accordingly, the district court's judgment is hereby affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.