Marcus Andre Michael v. Immigration and Naturalization Service , 48 F.3d 657 ( 1995 )

CALABRESI, Circuit Judge:

Petitioner, Marcus Andre Michael (“Michael”), appeals pro se from an order of the United States District Court for the Southern District of New York (Koeltl, J.) transferring his petition for a writ of habeas corpus (by which he sought to stay his imminent deportation) to the United States District Court for the Western District of Louisiana. 870 F.Supp. 44. Michael also requests that this Court grant a stay of deportation. We dismiss Michael’s appeal insofar as it relates to his petition for habeas relief for lack of appellate jurisdiction. We, however, grant his application for a stay pending the Board of Immigration Appeals’ (“BIA’s”) review of the Immigration Judge’s (“IJ’s”) denial of Michael’s motion to reopen his deportation proceedings. Should the BIA affirm the IJ’s refusal to reopen the deportation proceedings, our stay will remain in effect in order to permit Michael to seek review in this Court of the BIA’s decision.

BACKGROUND

Michael is a native and citizen of Guyana. He was admitted to the United States as a lawful permanent resident on August 2,1985. When the Immigration and Naturalization Service (“INS”) first took Michael into custody in connection with the current deportation proceedings in June 1994, he resided in Brooklyn, New York.

On February 23, 1994, Michael pleaded guilty before the Supreme Court of the State of New York, Kings County, to criminal possession of a weapon in the third degree. See N.Y.Penal Law § 265.02. After sentencing, Michael was jailed for 90 days in the Correctional Institution for Men in East Elmhurst, New York. Upon Michael’s release from state prison in May 1994, the INS ordered him to show cause why he should not be deported, charging that he was deportable pursuant to section 241(a)(2)(C) of the Immigration and Nationality Act of 1952, as amended, which provides:

Any alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) is deportable.

8 U.S.C. § 1251(a)(2)(C).

In June 1994, the INS ordered Michael to report for detention at the Federal Detention Center in Oakdale, Louisiana. On June 13, 1994, he was released from INS custody upon posting a $10,000 bond and he returned home to Brooklyn. On July 7, 1994, Michael’s New York attorney sent to the IJ in Oakdale, by express mail, a motion for a change of venue, together with supporting papers raising Michael’s eligibility for a waiver of deportation pursuant to section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(e) (1994). For some unexplained reason, the IJ did not receive these materials until July 13, 1994 — one day after he issued Michael’s order of deportation. The record reflects, however, that on July 12, 1994 — the same day that the IJ ordered Michael deported — Michael’s attorney spoke with the IJ, notified him that the July 7th motion papers were in transit, and requested that he either briefly postpone his decision or that he consider an oral motion for a change of venue. The IJ denied both requests.

Michael did not appeal the deportation order to the BIA because his motion raising the request for section 212(c) relief was not part of the administrative record upon which that order was based. -Instead, Michael, through counsel, filed a motion with the IJ to reopen the deportation proceedings so that he might apply for a section 212(c) waiver of deportation. Michael also requested a stay of deportation and a change of venue to New York City.¹ He argued that a case pending before the BIA, Matter of Esposito (see Es-posito v. INS, 987 F.2d 108 (2d Cir.1993)), would establish his eligibility for section 212(c) relief from deportation.

On August 19, 1994, the IJ denied the motions to reopen, to stay the deportation, and for a change of venue. On August 23, 1994, the INS District Director issued Michael a notice to surrender for deportation in Oakdale, Louisiana on September 26, 1994/ The following day, August 24, 1994, Michael appealed the IJ’s August 19th decision to the BIA and, pending his administrative appeal, requested a stay of deportation from both the INS District Director and the BIA. On August 30, 1994, the INS acknowledged receipt of Michael’s application for a stay, and informed him that it would take between 30 and 180 days to process his request. Under the circumstances, Michael might well have been deported before the INS passed upon his application for a stay.

On September 12, 1994, Michael, acting pro se,² filed the current petition for habeas corpus relief in the United States District Court for the Southern District of New York, seeking to enjoin the INS from deporting him prior to the resolution of his administrative appeal. Michael claimed that the district court should stay his deportation because his- underlying request for section 212(e) relief raised a non-frivoious constitutional issue that had not yet been decided by the Second Circuit, see Esposito v. INS, 987 F.2d 108, 111-12 (2d. Cir.1993) (per curiam) (remanding to the BIA for initial consideration whether, in light of equal protection concerns, aliens with firearms convictions are eligible for section 212(c) relief), and because the IJ had abused his discretion in denying Michael’s motion to reopen his administrative proceedings and in denying his request for a stay. Concluding that he did not have jurisdiction to entertain Michael’s habeas petition, on September 19, 1994, Judge Koeltl transferred these proceedings pursuant to 28 U.S.C. § 1406(a) to the United States District Court for the Western District of Louisiana. Two days later, Michael filed- a notice of appeal in the Southern District of New York and a pro se application for a stay of deportation in this Court.

On September 22, 1994, Judge Miner of this Court granted a temporary stay of deportation in order to permit the United States Attorney for the Western District of Louisiana to show cause why a stay should not be granted by that court pending Michael’s administrative appeal. That same day, Judge Trimble of the Western District of Louisiana denied Michael’s petition for habeas relief. On September 23,1994, Judge Miner vacated his stay and declined to grant another one until a three-judge panel of this Court addressed Michael’s appeal. On October 5, 1994, the INS District Director denied Michael’s administrative stay application, as did the BIA on November 7, 1994.

Michael’s pro se appeal from the district court’s transfer order and his application for a stay of deportation were submitted for decision to this panel on November 22, 1994. On November 30, 1994, a panel majority, Judge Jacobs dissenting, entered an order granting Michael a temporary stay of deportation and inviting the INS to submit briefs addressing

why a stay of deportation should not issue, and specifically addressing the authority of this Court under the All Writs Act, 28 U.S.C. § 1651, to issue such a stay to protect this Court’s jurisdiction to hear any subsequent appeal that the petitioner-appellant might take from an adverse ruling of the BIA.³

DISCUSSION

A. Michael’s Appeal from the District Court’s Transfer Order

Having considered the tortured and tortuous history of this ease, we conclude that Judge Koeltl’s decision to transfer Michael’s petition to the Western District of Louisiana, a court that admittedly had jurisdiction over his petition, is an interlocutory order that is unappealable absent the necessary district court certification. Cf. Chappie v. Levinsky, 961 F.2d 372, 374 (2d Cir.1992) (per curiam) (section 1404(a) transfer is an interlocutory order that requires district court certification under 28 U.S.C. § 1292(b) for immediate appellate review); Kotlicky v. United States Fidelity & Guaranty Co., 817 F.2d 6, 7 n. 1 (2d Cir.1987). Because Judge Koeltl did not stay the execution of his transfer order and certify the question of whether the transfer of Michael's habeas petition to the Western District of Louisiana was appropriate, we dismiss Michael’s appeal from that order for want of appellate jurisdiction.

B. Michael’s Application for a Stay of Deportation

Michael’s request for a stay of deportation, however, is another matter. His application raises the question of whether, in extraordinary cases, the All Writs Act provides a federal court of appeals with an independent statutory basis to stay a deportation order. We hold that it does.

1. Jurisdiction

The Immigration Act goes far to insure that aliens may obtain judicial review of final deportation orders. The statute provides that an alien may obtain such review in the court of appeals for the judicial circuit in which the administrative proceedings occurred or the judicial circuit of the alien’s residence. See 8 U.S.C. § 1105a(a)(2). Furthermore, this jurisdiction is both direct and exclusive in the court of appeals. See Garay v. Slattery, 23 F.3d 744, 745 (2d Cir.1994).

Upon the timely filing of an alien’s petition to review a final deportation order, and absent an aggravated felony conviction, an alien’s deportation is automatically stayed pending review of that petition by the court of appeals. See 8 U.S.C. § 1105a(a)(3). In the event that an alien has been convictéd of an aggravated felony, he or she may still seek a stay of deportation from the reviewing court, but such relief is'discretionary. Id.; see also Rabiu v. INS, 41 F.3d 879, 881 (2d Cir.1994) (discretionary stay of deportation granted to aggravated felon in order to adjudicate BIA’s denial of alien’s motion to reopen proceedings for section 212(c) consideration).

Where an alien does not directly seek review of a final deportation order in the court of appeals, but instead moves to reopen his or her administrative deportation proceedings, the automatic stay described above will not take effect until after the motion to reopen has been adversely determined and the alien timely seeks judicial review. See Vlassis v. INS, 963 F.2d 547, 548 (2d Cir.1992) (per curiam) (motion to reopen does not stay the execution of a deportation order); 8 C.F.R. § 3.8(a) (1994). Consequently, in order to avoid the possibility of deportation during the pendency of a motion to reopen, an alien must try to obtain & discretionary stay of deportation from an IJ, a local INS District Director, or the BIA. See Vlassis, 963 F.2d at 548 (“Absent such a stay, [an alien] might [be] deported before his request to reopen was granted.”); 8 C.F.R. §§ 3.6(b), 3.8(a) (1994) (authorizing BIA to grant a stay); 8 C.F.R. § 242.22 (1994) (authorizing IJ to grant a stay); 8 C.F.R. § 243.4 (1994) (authorizing INS District Director to grant a stay). Because the denial of a discretionary stay by an IJ or the BIA pending the disposition of a motion to reopen can be appealed only in conjunction with a final order of deportation, see Garay 23 F.3d at 746, only a stay application to an INS District Director carries with it the promise of immediate judicial review. An alien may challenge an INS District Director’s denial of a stay of deportation by petitioning a federal district court for habeas corpus relief. See id. at 745-46; 8 U.S.C. § 1105(a)(10).

This case, however, falls between the statutory cracks. Because the IJ refused to await the belated express mail delivery of Michael’s motion papers before ordering him deported, Michael had no choice but to seek the reopening of his administrative proceedings in order to raise his section 212(c) claim. See 8 C.F.R. § 242.17(e) (1994) (application for section 212(c) relief “shall be made only during the [deportation] hearing”). This necessarily prohibited Michael from invoking the statute’s automatic stay provision at that juncture. See Vlassis, 963 F.2d at 548. Similarly, under.the unique circumstances of this case, Michael was effectively deprived of the statutory safety net that permits an alien to challenge an INS District Director’s denial of a discretionary stay by way of habeas relief. See Garay, 23 F.3d at 745^6; 8 U.S.C. § 1105(a)(10).

While at home in Brooklyn on bonded release, and following notification that the INS District Director would not act upon his application for a discretionary stay until after his scheduled deportation date, Michael sought to enjoin his imminent deportation by filing a pro se habeas corpus petition in the Southern District of New York. Concluding that he lacked jurisdiction to entertain the petition, Judge Koeltl transferred it to the United States District Court for Western District of Louisiana. Judge Trimble of that court'then summarily denied Michael habeas relief on the grounds that he “failed to meet all of the requisite criteria for obtaining a stay of deportation.” ⁴ Judge Trimble’s ruling was not surprising in light of the fact that the Fifth Circuit — the court of appeals that has binding authority over the federal district courts in Louisiana — had previously held that weapons-related deportees were ineligible for section 212(e) relief. See Rodriguez v. INS, 9 F.3d 408, 412-13 (5th Cir. 1993). Once Michael’s habeas petition was transferred to the Fifth Circuit, the law of that circuit precluded any hope of success on. the merits of his underlying request for a section 212(c) relief. Understandably, as far as the courts of the Fifth Circuit were concerned, he did not merit a stay of deportation.

This bleak legal prognosis, however, did not reflect the section 212(c) state of affairs in the Second Circuit at the time that Michael first petitioned for habeas relief — nor does it reflect the status of section 212(c) law in the Second Circuit today. As Michael has consistently argued before the IJ, the INS District Director, the BIA, and the federal district courts in both New York and Louisiana, the question of whether weapons violators are eligible for section 212(e) relief remains open in this Circuit. See Esposito, 987 F.2d at 111-12. Moreover, on review from any adverse determination of the BIA that turns on the section 212(e) relief issue, Michael has the statutory right to press his claim for such relief before this Court. See 8 U.S.C. § 1105a(a)(2); see also Rosendo-Ramirez v. INS, 32 F.3d 1085, 1091-94 (7th Cir.1994) (although alien had been both apprehended and administratively processed in the Fifth Circuit, venue for review of BIA deportation order was proper in the Seventh Circuit as the judicial circuit of the alien’s residence, and the Seventh Circuit applied its own law on appeal); Maldonado-Cruz v. INS, 883 F.2d 788, 790-91 (9th Cir.1988) (although alien’s deportation proceedings had occurred in the Fifth Circuit, venue for review of BIA deportation order was proper in the Ninth Circuit as the judicial circuit of the alien’s residence, and the Ninth circuit applied its own law on appeal).

From the outset of his administrative proceedings, Michael’s intention to' litigate his deportation in this the judicial circuit of his residence⁵ has been manifest. On several occasions, he moved for a change of venue from Louisiana to New York. He also specifically invoked this Court’s jurisdiction when he appealed Judge Koeltl’s transfer of his habeas petition and additionally requested a stay of deportation pending his administrative appeal. In light of Michael’s stated desire to have this Court review his deportation appeal, and given his statutory right to obtain such review by this Court provided that he is not deported first, we conclude that our appellate jurisdiction in this case is both at issue and at risk.

The All Writs Act provides in relevant part:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usage and principles of law.

28 U.S.C. § 1651(a). In construing this statutory grant of power, the Supreme Court has held that “the authority of the appellate court ‘is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected.’ ” FTC v. Dean Foods Co., 384 U.S. 597, 603-04, 86 S.Ct. 1738, 1174, 16 L.Ed.2d 802 (1966) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)); see also Sheehan v. Purolator Courier Corp., 676 F.2d 877, 884 (2d Cir.1981) (“if the court eventually will have jurisdiction of the substantive claim and an administrative tribunal has preliminary jurisdiction, the court has incidental jurisdiction to grant temporary relief to preserve the status quo pending the ripening of the claim for judicial action on the merits”), cert. denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 216 (1988).

The Third Circuit has twice noted that, in extraordinary cases, a court of appeals may invoke its injunctive powers under the All Writs Act so. as to preserve its potential jurisdiction to review orders of deportation. See Reid v. INS, 766 F.2d 113, 116 n. 9 (3d Cir.1985); Dabone v. Karn, 763 F.2d 593, 597 n. 2 (3d Cir.1985). As that court aptly stated in Reid:

It may sometimes happen that an alien will be unsuccessful in gaining a stay of deportation from either the BIA or the district director and will be deported before the BIA has ruled finally on the motion to reopen. Furthermore, it may well be that the motion to reopen will be ... mooted following the alien’s departure from the United States.... [But] we note the possibility that in extraordinary cases relief in the nature of a stay might be available in the court of appeals pursuant to the All Writs Act[] .... to correct what might, under the facts of the case, be an egregious denial of discretionary relief.

766 F.2d at 116-17 n. 9 (citing, inter alia, Dean Foods Co. 384 U.S. at 603-05, 86 S.Ct. at 1742-43).

We agree with the Third Circuit’s observations and find them to be directly applicable to this ease. Accordingly, we conclude that as “a residual source of authority to issue writs that are not otherwise covered by statute,” Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 361, 88 L.Ed.2d 189 (1985), the All Writs Act empowers federal courts of appeal to stay orders of deportation in order to safeguard the court’s appellate jurisdiction.

2. Merits

Of course, the simple fact that jurisdiction exists here does not necessarily mean that we should exercise our powers under it. In determining whether to grant a discretionary stay of deportation under the All Writs Act, we are guided by the same criteria that generally govern the issuance of discretionary stays.⁶ Thus, we must consider whether: (1) Michael will suffer irreparable injury absent a stay; (2) the INS will suffer substantial injury if the stay is issued; (3) Michael has demonstrated a substantial possibility, though less than a likelihood, of success on appeal;- and whether .(4) the public interest may be affected. See Jenkins v. INS, 32 F.3d 11, 14-15 (2d Cir.1994).

A stay to preserve the jurisdiction of this Court, and to enable Michael to argue his section 212(c) claim before this Court — in the circuit of his residence as is his right under the Immigration Act — is fully justified. Absent a stay, Michael would suffer irreparable injury through deportation-, thereby mooting this case. Conversely, wé can see no significant injury to the INS in this case should we grant a stay.

Furthermore, assuming that Michael is not first deported, that the BIA adversely determines his administrative appeal, and that Michael brings an appeal in this Circuit, this Court will examine the underlying issue upon which all else in this case ultimately turns — the availability of section 212(c) relief for firearms violators under Second Circuit law. See Rosendo-Ramirez, 32 F.3d at 1094 (holding that a circuit court of appeals is “obliged to review the BIA’s decision in accordance with [its] own law” despite the fact that the underlying administrative proceedings applied the law of another circuit).

There is no doubt that Michael properly preserved the issue for review by this Court; he raised it in timely fashion in papers mailed to the IJ prior to the IJ’s initial decision, and again in his motion to reopen and for. a stay. There is also no doubt that Michael’s well-preserved section 212(c) claim is a non-frivolous one of constitutional dimension, see Esposito, 987 F.2d at 111 (discussing Francis v. INS, 532 F.2d 268 (2d Cir. 1976)), which neither the Supreme Court nor this Circuit has addressed. The Ninth Circuit has held that where an alien “raises a non-frivolous constitutional issue yet undecided by our circuit or the Supreme Court,” it is an abuse of discretion to deny that alien a stay of deportation pending review of an IJ’s refusal to reopen administrative proceedings. Blancada v. Turnage, 891 F.2d 688, 690 (9th Cir.1989) (after denying an alien’s motion to reopen, the IJ, INS District Director, and BIA abused their discretion by refusing to grant a stay of deportation that would allow an alien to litigate fully his colorable due process challenge to statutory restrictions on obtaining marital “relative” or “preference status”).

We reached an analogous conclusion in Anderson v. McElroy, 953 F.2d 803 (2d Cir. 1992) where we held, in a habeas context, that the BIA had abused its discretion by refusing to grant a stay of deportation in order to allow an alien to litigate fully the denial of his motion to reopen his deportation proceedings. See id. at 806.⁷ In particular, we determined that the BIA’s failure to give adequate consideration to the merits of the alien’s section 212(c) request before denying both his motion to reopen and his application for a discretionary stay constituted an abuse of discretion in denying the stay. Id. Here, despite Michael’s repeated arguments to both the IJ and the BIA that he may become eligible for section 212(c) relief in the Second Circuit, neither the IJ nor the BIA addressed this point in denying Michael’s applications for a discretionary stay. And, as we stated in Anderson:

[w]hen faced with cursory, summary or conelusory statements from the BIA, we cannot presume anything other than ... an abuse of discretion, since “the BIA’s denial of relief can be affirmed only on the basis articulated in the decision ... and we cannot assume that the BIA considered the factors that it failed to mention in its decision.”

Id. (quoting Mattis v. INS, 774 F.2d 965, 967 (9th Cir.1985) (citation omitted)).

We adhere to that view today. Michael’s application for a stay of deportation should have been granted by the IJ because this Circuit would have granted such a stay to permit Michael to argue the open section 212(c) question. See e.g. Gordon v. INS, 36 F.3d 249 (2d Cir.1994) (per curiam) (staying alien’s deportation pending BIA’s disposition of the Esposito remand where INS issued a deportation notice). Jenkins’s third criterion for the issuance of a discretionary stay at this time is more than met.⁸

Finally, we also believe that it is in the public interest for this Court to resolve the open section 212(c) question in an orderly manner that is even-handed to all potentially affected aliens who reside in this Circuit. Cf. Gordon, 36 F.3d at 250 (discussing court-approved INS stipulation that alien’s deportation would be stayed and his petition for review would “be held in abeyance until the Court has received and considered the decision on remand in Esposito ”). As we have stated before, “[o]ur task ... is to insure that whatever compassionate conditions are written into the law are carefully adhered to, no matter how slim the alien’s chances to escape deportation may be.” Rosario v. INS, 962 F.2d 220, 221 (2d Cir.1992).

CONCLUSION

Accordingly, we grant the application for a stay of deportation and we order that Michael’s deportation be stayed pending the disposition of his appeal before the BIA. In the event that the BIA renders a decision adverse to Michael, this order is to remain in effect to permit Michael to seek review of the BIA’s ruling in this Court in the manner provided by 8 U.S.C. § 1105a(a)(l).

1 . The dissent argues that Michael strategically forewent his opportunity to request section 212(c) relief in his motion to reopen in order to seek a change of venue from Louisiana to his home state of New York. See Dissent at pps. 3-4 & n. 2. Michael's attorney did request a venue change in his motion papers, as he was entitled to do. But as the IJ's written decision makes indisputably clear, Michael also "filed a motion to reopen deportation proceedings in order to request relief from deportation under § 212(c) of the Immigration and Nationality Act of 1990.” Order of the Immigration Judge at 1, August 19, 1994.

2 . The dissent’s repeated suggestions- to the contrary notwithstanding, there is simply no indication in the record that Michael had the assistance of counsel at anytime during this or any subsequent proceedings.

3 . Our November 30th order also vacated an order entered the previous day granting Michael a stay of deportation through this Court's review of any adverse BIA ruling. Due to an inadvertent miscommunication, the panel believed that the INS had opted not to respond to Michael's application for a stay. After the panel majority granted its initial stay on November 29th, the INS advised the Court that it had been under the mistaken impression that Judge Miner had finally disposed of the case when he vacated his temporary stay on September 23rd. In light of this confusion, we thought that the INS should have an opportunity to state its position fully. We therefore vacated our earlier stay, and set a briefing schedule for the INS to respond.

4 . The necessary criteria referred to by the district court are those set forth by the Fifth Circuit in Ignacio v. INS, 955 F.2d 295, 299 (5th Cir.1992) (likelihood of success on the merits; irreparable harm to .the movant absent a stay; the potential harm to the movant outweighs the harm to the INS if the stay is not granted; and granting the stay would serve the public interest).

5 . Under the Immigration Act, ”[t]he term ‘residence’ means the place of general abode; the place of general abode of a person means his [or her] principal, actual dwelling place in fact, without regard to intent.” 8 U.S.C. § 1101(a)(33) (emphasis added). We have previously described the term residency — as used in the immigration context — as “an established abode, for personal or business reasons, permanent for a time.” Rosario v. INS, 962 F.2d 220, 224 (2d Cir.1992). For the purpose of applying section 1105a(a)(2)’s venue provisions, we do not think that Michael’s good faith compliance with the INS’s order to leave New York (his established abode for both personal and business reasons since 1985) and to report for pre-deportation detention in Louisiana affected his status as a Second Circuit resident.

6 . The dissent's denomination of our stay order as a "writ of prohibition," Dissent at p. 668, and its further assertion that, as such, it requires a stricter standard for issuance than the one we now apply, see id. at p. 671, is, we believe, mistaken. Our decision imposes neither a mandamus nor a prohibition order, both of which finally dispose of substantive claims in a piecemeal fashion and therefore understandably require petitioners to demonstrate a "clear and indisputable right” to relief. See Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). Nothing in Michael’s case is finally resolved by the temporary postponement of his deportation. For this reason we agree with the views of then-Judge Scalia regarding the appropriate requirements for issuing an All Writs stay of an administrative order:

Besides the preliminary condition distinctive to All Writs relief [that the statutory prescribed remedy is clearly inadequate], ,.. the [request for a stay] must also satisfy the normal requirements, so to speak, for all extraordinary relief — i.e., the well established requirements that we routinely apply to motions for stay pending appeal, among which is the likelihood of irreparable harm.

Reynolds Metals Co. v. F.E.R.C., 777 F.2d 760, 762 (D.C.Cir.1985).

7 . The dissent challenges the grant of an All Writs Act stay of deportation in this case, in part, because Michael presented his substantive request for section 212(c) in a motion to reopen his deportation hearing. See Dissent at pps. 13-14. Citing INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 914-15, 99 L.Ed.2d 90 (1988), and INS v. Doherty, 502 U.S. 314, 321-25, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992), the dissent argues that motions to reopen "are disfavored” and, by implication, cannot serve as the basis for extraordinary relief as a matter of policy. Both Abudu and Doherty, however, involved aliens who had full hearings before an immigration judge, and exercised the opportunity to present their requests for relief at that time. See Abudu, 485 U.S. at 96 & n. 1, 108 S.Ct. at 907 & n. 1; Doherty, 502 U.S. at 317-21, 112 S.Ct. at 722-23. Thus, the statements in these cases regarding the disfavored status of motions to reopen reflect a proper concern for procedural abuse and dilatory tactics. Since Michael's motion to reopen came only after the IJ refused to postpone decision until Michael’s delayed motion papers arrived in the mail, those concerns are not implicated here.

8 . In concluding that a stay under the All Writs Act may issue, we by no means intend to create a method by which aliens contesting deportation may circumvent our holding in Garay. See 23 F.3d at 746 (holding that discretionary stay denials by an IJ or the BIA may only be reviewed in conjunction with a final order denying reopening). It is only when no other means of review are available, as they are not in this case because of its unusual procedural history, that the All Writs Act becomes available. This, of course, is what the Third Circuit indicated in Reid, and it is what we hold today.