6th And 9th Circuits Rule On Courts' Authority To Stay Voluntary Departure Period Pending Appeal

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

6th and 9th Circuits rule on courts' authority to stay voluntary departure period pending appeal
Immigrants' Rights Update, Vol. 17, No. 8, December 18, 2003

The U.S. Court of Appeals for the Sixth Circuit has issued a decision granting a petitioner's motion to stay the period for voluntary departure pending the resolution of his petition for review. The government did not oppose the petitioner's motion for a stay of removal but did oppose the motion to stay voluntary departure, contending that the court did not have jurisdiction to grant voluntary departure. The court rejected this argument, following the U.S. Court of Appeals for the Ninth Circuit's decision in El Himri v. Ashcroft, 344 F.3d 1261 (9th Cir. 2003), to find that the court's equitable power extends to stays of voluntary departure (see "9th Circuit Rules Court Can Stay the Period for Voluntary Departure Pending Review of a Removal Order," IMMIGRANTS' RIGHTS UPDATE, Oct. 21, 2003, p. 7).

In addition, a panel of the Ninth Circuit has issued an unpublished decision resolving an issue that was left undecided in El Himri-whether the court's equitable power allows it to grant a motion to stay voluntary departure made after the expiration of the period of voluntary departure that was granted by the Board of Immigration Appeals. In this case, the court had granted the petitioners' motion for a stay of removal on Dec. 12, 2002. At that time the petitioners had not requested a stay of voluntary departure, no doubt because the court had not yet issued its decision in Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir. 2003), which found that because of the statutory framework of removal proceedings, the filing of a petition for review no longer automatically stays voluntary departure (see "9th Circuit Finds Filing of Petition for Review Does Not Suspend Deadline for Voluntary Departure Granted by BIA," IRU, Apr. 8, 2003, p. 5). Subsequently, at oral argument, counsel for the petitioners made an oral motion to stay voluntary departure nunc pro tunc. The court granted the motion, noting that the applicable standard is the same as for a stay of removal, which had previously been granted. Because the decision is unpublished, under Ninth Circuit rules it is not considered binding precedent for other cases.

Nwakanma v. Ashcroft, __ F.3d __, No. 03-4317 (6th Cir., Dec. 10, 2003);
Villanueva v. Ashcroft, No. 02-73089 (9th Cir. Nov. 4, 2003).