Opinion
CASE NO. C03-0002P
January 21, 2003
ORDER GRANTING STAY OF REMOVAL
On January 2, 2003, petitioner filed, through counsel, a habeas corpus petition pursuant to 28 U.S.C. § 2241, along with a request for a stay of his pending deportation to Mexico. (Dkts. #1 and #2). On January 9, 2003, the undersigned Magistrate Judge ordered a response to the motion from respondents no later than January 13, 2002. (Dkt. #4). On the same day, respondents were also ordered to file a return to the habeas petition. (Dkt. #4).
Respondents have not replied to petitioner's motion, however, prior cases show that respondents do not routinely oppose temporary stays of removal pending final adjudication of the underlying habeas petition. ( See, e.g., Case Nos. C02-2166L and C02-1692C). Having reviewed petitioner's motion for a stay of deportation, and the balance of the record, the Court does hereby find and ORDER:
(1) Petitioner's motion for a temporary stay of removal (Dkt. #2) is GRANTED, and petitioner's deportation is STAYED pending the resolution of petitioner's habeas corpus action in this Court.
The standard of review for a stay of removal is set forth in Abassi v. INS, 143 F.3d 513 (9th Cir. 1998); see also Andreiu v. Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001) (en banc) (concluding that § 1252(f)(2) does not limit the power of federal courts to grant a stay of removal). Under Abassi, petitioner must show either: (1) the probability of success on the merits plus the possibility of irreparable harm, or (2) that serious legal questions are raised and the balance of hardships tips in petitioners favor. Abassi, 143 F.3d at 514.
The Court finds that petitioner meets the second part of the Abassi test. Petitioner raises substantial due process questions, alleging that: (1) the Immigration Judge ("IJ") made a legal error in finding him ineligible for cancellation of removal, or in the alternative, for a § 212(c) waiver; (2) the IJ's decision is so fundamentally flawed that it violates due process because there is no basis in the record for the factual findings; (3) the IJ's decision is inconsistent with precedent decisions of the federal courts and of the Board of Immigration Appeals ("BIA"); (4) the BIA failed to follow its own governing regulations in summarily affirming the decision of the IJ; and (5) the summary affirmance procedures followed by the BIA are constitutionally defective. (Dkt. #2 at 2-3).
Petitioner also argues that removal will cause extreme hardship on his family, as his two U.S.-citizen children depend on him for essential care and support. Additionally, respondents have not objected to a stay.
(2) The Court expresses no views at this time as to the merits of petitioner's habeas petition.
(3) The Clerk shall direct a copy of this Order to all counsel of record, and shall forward a copy of this Order to Judge Martinez.