An application to vacate the Court of Appeals' partial stay of
the District Court's order is denied. In proceedings involving a
class of Cuban nationals (including applicants) who, having
unlawfully entered the United States, have been detained in a
federal penitentiary pending Cuba's acceptance of their return,
have had exclusion orders entered against them, and assert that
they would be subject to persecution if returned to Cuba and thus
are eligible for asylum, the District Court ordered that certain
test cases be remanded to the Board of Immigration Appeals and that
the exclusion orders be set aside. The Court of Appeals' stay,
pending respondents' appeal from the District Court, among other
things, (1) refused to delay deportation of class members who would
not be eligible for asylum, regardless of the outcome on the merits
of the test cases, because they had committed serious crimes or
otherwise posed a danger to the security of the United States, but
(2) shifted to the Government the burden of proving that the alien
was excludable on such grounds. Applicants simply have not made a
showing of irreparable injury that would warrant interference with
the Court of Appeals' partial stay.
JUSTICE REHNQUIST, Circuit Justice.
Applicants are members of a class of Cuban nationals who
unlawfully entered the United States as part of the Mariel boatlift
in 1980. They have been detained in the federal penitentiary in
Atlanta pending Cuba's willingness to accept their return, and have
had final orders of exclusion entered against them by the Board of
Immigration Appeals. Matter of Leon-Orosco and Rodriguez-Colas,
Interim Decision 2974 (1983). The instant proceedings are the most
recent stage of litigation which has lasted for more than four
years. Attorneys for the class have sought to reopen the
administrative exclusion hearings of two individual class members
on the theory that they belong to a "social group," defined as the
Mariel boatlift participants, whose members allegedly would
Page 469 U. S. 1312
be subject to persecution if returned to Cuba, thus making them
eligible for consideration for asylum.
See 8 U.S.C. §§
1101(a)(42) (A), 1158. The parties stipulated that the decisions on
the two individual motions to reopen "will be binding on all
asylum/withholding of deportation issues relating to membership in
the Freedom Flotilla as a social group," but they also expressly
provided that the decisions would have no binding effect over the
determinations of other class members "with respect to statutory
and regulatory exceptions to asylum/withholding eligibility."
The Board of Immigration Appeals denied the two test motions to
reopen on the ground that the aliens had not presented a
prima
facie case of persecution. The District Court ruled on October
15, 1984, that the aliens had presented sufficient evidence of a
likelihood of persecution and, therefore, that the Board had abused
its discretion in failing to reopen the test cases.
Fernandez-Roque v. Smith, 599
F. Supp. 1103 (1984). The District Court remanded the test
cases to the Board and set aside all outstanding orders of
exclusion.
Meanwhile, the United States and Cuba, on December 14, 1984,
concluded an agreement on immigration matters in which Cuba
consented to the return of 2,746 named boatlift participants in
exchange for the resumption of this country's normal processing of
preference immigration visas for Cuban nationals. The agreement
limits the number of boatlift participants that may be returned to
100 per month, except that, if fewer than 100 are returned in a
calendar month, the shortfall may be made up in subsequent months
up to a total of 150 returnees per month. The Cuban Government
apparently has indicated that it will not mistreat anyone returned
under the agreement. Respondents contend that the United States
will be severely prejudiced by any delay in carrying out this
agreement because Cuba may refuse at some future time to complete
its end of the bargain after it has received the domestic political
benefits of the eased immigration to this country.
Page 469 U. S. 1313
Respondents appealed the District Court's October 15, 1984,
order and sought a stay pending appeal, which was denied by the
District Court. The Court of Appeals for the Eleventh Circuit
granted a partial stay on January 16, 1985, which it modified by
order of January 25, 1985. The net effect of the stay as modified
is threefold: first, to stay the vacation and remand of all
outstanding orders of exclusion; second, to acknowledge the
Government's voluntary agreement not to deport any class members
until February 8, 1985; and third, to prohibit the Government from
taking any
"action to return to Cuba any of those class members identified
in the stipulations who claim eligibility for asylum on the ground
that they have a well-founded fear of persecution because of
membership in the social group, and who are not returnable under
subsection 2 of 8 U.S.C. § 1253(h), until such time as the issues
on this appeal are resolved or until further order of this
court."
"(Footnotes omitted.) Applicants seek to have this stay set
aside or further modified."
A stay granted by a court of appeals is entitled to great
deference from this Court, because the court of appeals ordinarily
has a greater familiarity with the facts and issues in a given
case.
See Bonura v. CBS, Inc., 459 U.
S. 1313 (1983) (WHITE, J., in chambers);
O'Connor v.
Board of Education, 449 U. S. 1301,
449 U. S.
1304 (1980) (STEVENS, J., in chambers);
Coleman v.
PACCAR, Inc., 424 U. S. 1301,
424 U. S.
1304 (1976) (REHNQUIST, J., in chambers). There is no
need to evaluate applicants' likelihood of success on the merits;
they simply have not made a showing of irreparable injury which
would warrant interference with the partial stay granted by the
Court of Appeals. The Court of Appeals merely refused to further
delay deportation of class members who would not be eligible for
asylum under the "social class" theory even if the two individual
test motions were ultimately successful on the merits. These are
persons who are excludable and not entitled to asylum under 8
U.S.C. § 1253(h)(2) because they have committed serious crimes or
they otherwise pose a danger to the security of the United States.
There is no reason
Page 469 U. S. 1314
to grant these individuals automatic relief simply because some
of their fellow class members may be eligible to be considered for
asylum.
Under the partial stay, every class member may pursue his own
individual remedies during the pendency of the appeal and, if he is
not excludable under § 1253(h)(2), prevent his deportation. In
fact, the terms of the partial stay shift to the Government the
burden of proving that the alien is within that statutory provision
before he may be excluded, when ordinarily the burden would be on
the alien to prove his entitlement to remain in this country.
Applicants' principal argument against the partial stay is that
requiring individual motions to reopen would present significant
administrative difficulties. Each of the more than 1,500 class
members will have to file individual motions to reopen. The
necessary balancing of these difficulties against the prejudice to
the Government from further delay is something the Court of Appeals
is in a far better position than this Court to do. The specificity
of the partial stay order indicates that it was drafted with some
care, and that it endeavors to reflect a considered balancing of
the various interests at issue. This Court is not in a position to
second-guess a balancing of this kind.
The application is denied.