U.S. v. Kiang

Full title: UNITED STATES OF AMERICA, Plaintiff, v. CHOU-JIN KIANG, Defendant

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Feb 14, 2002

Case No. 00-CV-75467-DT (E.D. Mich. Feb. 14, 2002)

Opinion

Case No. 00-CV-75467-DT

February 14, 2002

OPINION AND ORDER

LAWRENCE P. ZATKOFF, Chief United States District Judge.

This matter is before the Court on Defendant Chou-Jin Kiang's Motion for Stay pursuant to FED.R.APP.P. 8(a). For the reasons set forth below, Defendant's Motion for Stay is DENTED.

In determining whether a stay should issue in this matter pursuant to FED.R.APP.P. 8(a), this Court must consider the following four factors:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.

Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). "In essence, a party seeking a stay must ordinarily demonstrate to a reviewing court that there is a likelihood of reversal." Id.

[T]he movant is always required to demonstrate more than the mere "possibility" of success on the merits. . . . [E]ven if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the defendant if a stay is granted, he is still required to show, at a minimum, "serious questions going to the merits."

Id. at 153-54 (internal citations omitted). Defendant asserts two grounds for his proposition that this Court's December 13, 2001 Opinion and Order¹ granting the Government's Motion for Summary Judgement was in error — that he is likely to prevail on the merits. First, Defendant cites a district court case from New York, the same case Defendant relied on in his briefs responding to the Government's Motion for Summary Judgment, which allegedly contravenes this Court's ruling. Second, Defendant reiterates his argument that this Court should ignore the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984), which allows the Immigration and Naturalization Service to promulgate regulations construing 8 U.S.C. § 1101(f). See Kiang, 175 F. Supp. 2d at 17.

1 See United States v. Kiang, 175 F. Supp.2d 942 (E.D. Mich. 2001).

Upon review of the authority cited by Defendant, the same authority this Court found unpersuasive in his underlying briefs in opposition to the Government's Motion for Summary Judgment, the Court finds that Defendant has failed to carry his threshold burden of showing "serious questions going to the merits" of the Court's adjudication of the underlying summary judgment motion. See Griepentrog, 945 F.2d at 153.

Accordingly, for the reasons stated above, Defendant's Motion for Stay pursuant to FED.R.APP.P. 8(a) is DENIED.