Opinion
CASE NO. C02-2387R
January 13, 2003
ORDER GRANTING STAY OF REMOVAL
On November 26, 2002, 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 December 9, 2002, the undersigned Magistrate Judge ordered a response to the motion from respondents no later than December 23, 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, respondents' response, 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) petitioner was not "inadmissible" at the time he adjusted his status; (2) petitioner is eligible for cancellation of removal under more than one provision of the Immigration and Nationality Act ("INA"); (3) the INS has denied petitioner due process of law by failing to accept and adjudicate his Petition for Alien Relative filed on his behalf by his U.S.-citizen wife; (4) the Board of Immigration Appeals ("BIA") made a legal error in summarily affirming the decision of the Immigration Judge ("IJ"); (5) the BIA failed to follow its own governing regulations in summarily affirming the decision of the IJ; and (6) the summary affirmance procedures followed by the BIA are constitutionally defective. (Dkt. #2 at 2-4).
Petitioner also argues that removal will cause extreme hardship on his family, as his U.S.-citizen wife and six 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.