Sidhu v. Ashcroft

Full title: JASVINDER SINGH SIDHU, Petitioner, v. JOHN ASHCROFT, et al., Respondents

Court: United States District Court, N.D. California

Date published: Sep 25, 2002

No. C 02-04471 TEH (N.D. Cal. Sep. 25, 2002)

Opinion

No. C 02-04471 TEH

September 25, 2002

ORDER

THELTON E. HENDERSON, United States District Judge

On September 13, 2002, the Honorable Martin Jenkins granted petitioner's request for an emergency stay of deportation pending a ruling by this Court on his application for temporary restraining order (TRO).

Having reviewed the petitioner's papers, and good cause appearing, it is HEREBY ORDERED that petitioner's application for a TRO is DENIED.

Petitioner contends that the deportation proceedings initiated against petitioner were invalid, and conducted without authority, because petitioner had pending at the time a non-frivolous application for amnesty under provisions available to certain agricultural workers. See 8 U.S.C. § 1160(a), (d)(2). The Ninth Circuit Court of Appeals has squarely held, however, that while the INS has the discretion, under 8 U.S.C. § 1160(d)(2), to decide not to commence deportation proceedings while an amnesty application is pending, the INS is not, as petitioner asserts, barred from initiating or conducting deportation proceedings if it chooses that course. Rather, the INS is only barred from executing a deportation order while the amnesty petition is pending. Yao v. I.N.S., 2 F.3d 317, 319 (9th Cir. 1993)("While an applicant [under 8 U.S.C. § 1160] may not be deported, no statutory or regulatory provision bars the initiation of deportation proceedings or precludes the entry of a deportation order. The order simply may not be executed unless and until an adverse legalization determination is made and is final").

In this case, petitioner's amnesty application was denied on July 1, 1996. Accordingly, respondents' execution of petitioner's deportation order in September 2002 — long after the denial of petitioner's amnesty application — does not violate the terms of the amnesty program set forth in 8 U.S.C. § 1160. Nor does the initiation of the deportation proceedings prior to July 1, 1996 otherwise violate petitioner's constitutional rights. Yao v. I.N.S., 2 F.3d at 319-22.

Accordingly, petitioner's petition is DISMISSED and the Clerk is directed to close this case.