Opinion
CASE NO. C03-0089Z
January 24, 2003
ORDER GRANTING STAY OF REMOVAL
On January 17, 2003, petitioner filed, through counsel, a habeas corpus petition pursuant to 28 U.S.C. § 2241, along with an emergency request for a stay of his pending deportation to Mexico. (Dkts. #1 and #2). In essence, petitioner claims that the INS has erred by reinstating a prior deportation order. Petitioner alleges that he had never received notice of prior deportation hearings, and was unaware of any basis for an order of deportation. (Dkt. #1).
The Court has not yet ordered service of the petition, so respondents have not had the opportunity to reply to the emergency request, 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, 423 (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. Among the due process issues raised by petitioner, are the allegations that: (1) petitioner's in absentia removal order issued on or about September 14, 1994, was issued without notice to petitioner; (2) the INS erred in determining that petitioner has been previously deported in 1998, and has improperly reinstated his prior order of deportation; (3) the reinstatement of a prior order of deportation is not permitted under INA § 241(a)(5); and (4) the INS improperly denied his application for adjustment of status. (Dkt. #1 at 4-5).
Petitioner also argues that removal will cause extreme hardship on his family, as his U.S. citizen wife and child depend on him for essential care, and he has supported them for the past four years. (Dkt. #2 at 4). Petitioner further notes that he has no criminal record. (Dkt. #2 at 4).
(2) Although the Court has found that serious legal questions are raised, the Court expresses no views at this time as to the merits of those claims.
(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.