Akasike v. Fitzpatrick

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-10079
Summary Calendar
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GABRIEL AKASIKE,
Plaintiff-Appellant,
VERSUS
MICHAEL FITZPATRICK
Warden, FCI Big Spring, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
(5:93-CV 140-C)
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(June 30, 1994)
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Gabriel Akasike appeals the denial of his request for a
preliminary injunction to stay his deportation. Finding no error,
we affirm.
*
Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
I.
Akasike filed a civil rights complaint under 42 U.S.C. § 1983,
alleging that when incarcerated as a federal prisoner at F.C.I. Big
Spring, he was transferred along with other inmates to the Lubbock
County Jail under the control of Sheriff Keesee, where he was
attacked and received extensive injuries because Keesee was
callously indifferent to his safety and welfare. The district
court initially dismissed Akasike's claims as to defendants
Fitzpatrick and Keesee. We affirmed as to Fitzpatrick but vacated
and remanded as to the claim against Keesee.
On remand, Akasike filed a motion for a "temporary injunc-
tion," asserting that he had been found deportable by the Immigra-
tion and Naturalization Service (INS) and needed an injunction to
stay deportation so that he could "attend the Civil trial"
referring to his instant § 1983 action. The district court denied
his motion without stating reasons.
II.
Akasike asserts that a preliminary injunction is required to
stay deportation so that he will not be deported before trial
regarding his § 1983 claim. In essence, the request for an
injunction is tantamount to a request for a stay of deportation.
He admits that he has appealed the INS's decision to deport him to
the Board of Immigration Appeals (BIA). He also admits that should
his appeal with the BIA be unsuccessful, and should he "decide to
put in a motion for stay of his deportation and petition to review
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his deportation order, . . . he will do so at the appropriate
time." He contends, however, and somewhat speciously, that he need
not exhaust administrative remedies because he is not attacking a
final order of deportation.
Deportation orders entered by immigration judges are reviewed
initially by the BIA. 8 C.F.R. § 242.22. The BIA "is a delegate
of the Attorney General and exercises the Attorney General's
reviewing authority in deportation cases. The BIA's decision,
absent exceptional circumstances, is administratively final,
subject only to judicial review." Johns v. Department of Justice,
653 F.2d 884, 889-90 (5th Cir. Aug. 1981) (footnote omitted).
An alien subject to a final order of deportation has ninety
days to file a petition for review of the BIA's decision in the
appropriate circuit court, or only thirty days if the alien is
convicted of an aggravated felony. 8 U.S.C. § 1051a(a)(1) (West
1994); Umanzor v. Lambert, 782 F.2d 1299, 1303 (5th Cir. 1986).
The filing of such a petition "shall stay the deportation of the
alien pending determination of the petition by the [circuit] court,
unless the [circuit] court otherwise directs." 8 U.S.C.
§ 1105a(a)(3). If the alien is convicted of an aggravated felony,
however, INS will not stay deportation "pending determination of
the petition by the [circuit] court, unless the [circuit] court
otherwise directs." Id.
It is uncertain whether Akasike was convicted of an aggravated
felony (for INS purposes). In any event, (1) his request for a
stay was improperly lodged in the district court; (2) he can
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automatically obtain the relief sought, if he was not convicted of
an aggravated felony, by filing a petition for review in this court
once the BIA's decision is rendered; and (3) if he was convicted of
an aggravated felony, the relief sought is unavailable unless we
direct otherwise. See Umanzor, 782 F.2d at 1303; 8 U.S.C.
§ 1105a(a)(1), (3). Because the district court is without
authority to grant a preliminary injunction given the specific
facts and posture of this case, it properly denied Akasike's
request.
III.
Akasike has moved for the appointment of appellate counsel.
A civil rights complainant has no right to the automatic appoint-
ment of counsel, and Akasike has not shown that his case presents
any exceptional circumstances warranting the appointment of
counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982).
The order denying injunction is AFFIRMED. The motion for
appointment of counsel is DENIED.
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