Civil No. 04-3846 (JRT/RLE).
October 22, 2004
Herbert A. Igbanugo, BLACKWELL IGBANUGO, Minneapolis, MN, for petitioner.
Lonnie F. Bryan, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN, for respondents.
ORDER GRANTING MOTION FOR STAY PENDING APPEAL
Sherneth Raffington ("Petitioner") is a removable alien in the custody of Immigration Customs Enforcement ("ICE"). On October 6, 2004, the Court denied her Petition for Writ of Habeas Corpus, and on October 18, 2004, the Court denied her request for permission to file a motion to reconsider. Petitioner is currently subject to imminent removal from the United States to Jamaica. Petitioner now moves for a stay of her removal pending resolution of her appeal to the Eighth Circuit Court of Appeals pursuant to Federal Rule of Appellate Procedure 8(a)(1).
In determining whether to grant a stay, the Court must consider four factors: (1) whether the applicant demonstrates a likelihood of success on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the opposing party; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 112 (8th Cir. 1981). When considering these factors, it is important to remember that each factor must be balanced against the others and "no single factor is determinative." Id. at 113; see also Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991) (stating that the four factors are not independent prerequisites, "but are interrelated considerations that must be balanced together"). In other words, "[t]he probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay." Mich. Coalition, 945 F.2d at 153; see also Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) ("The necessary `level' or `degree' of possibility of success will vary according to the court's assessment of the other factors.").
There is little doubt that petitioner is likely to suffer irreparable harm if a stay of removal is not granted. Petitioner has not lived in Jamaica for over nineteen years, has little, if any, support system there, and is unlikely to receive the same quality of health care and medication for her mental illness that she receives in the United States. The government, in contrast, will not suffer an undue burden if it is prohibited from removing petitioner while her appeal is pending, nor would the public interest be harmed.
The more difficult factor to assess in this case is the likelihood of success on the merits. The Court recognizes its somewhat awkward position of assessing the success of an appeal of its own decision. The Court also notes, however, that "[i]n the context of a stay of removal of an alien pending appeal of an adverse habeas decision, the gravity of the injury to the alien if a stay is denied, compared to the lesser `injury' to the Government if one alien is permitted to remain while an appeal is decided, suggests that the degree of likelihood of success on appeal need not be set too high." Mohammed v. Reno, 309 F.3d 95, 102 (2d Cir. 2002). Petitioner raises a substantial question as to whether her Convention Against Torture claim has been adequately adjudicated. As such, the Court finds that in this case, where the equities so favor the petitioner, she has achieved the requisite possibility of success on the merits to grant a stay of removal.
Based on the submissions and the entire file and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion for Stay Pending Appeal [Doc. No. 68] is GRANTED. It is further ORDERED that ICE not remove petitioner from the United States until her appeal before the Eighth Circuit Court of Appeals is adjudicated.