9th Circuit Rules Court Can Stay The Period For Voluntary Departure Pending Review Of A Removal Order

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

9TH CIRCUIT RULES COURT CAN STAY THE PERIOD FOR VOLUNTARY DEPARTURE PENDING REVIEW OF A REMOVAL ORDER
Immigrants' Rights Update, Vol.17, No. 6, October 2003

The U.S. Court of Appeals for the Ninth Circuit has ruled that it has equitable jurisdiction to stay the voluntary departure period of a petitioner seeking review of a removal order. The decision resolves an issue that was left open by the court's decision in Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir. 2003) (for a summary of Zazueta-Carrillo, see "9th Circuit Finds Filing of Petition for Review Does Not Suspend Deadline for Voluntary Departure Granted by BIA," IMMIGRANTS' RIGHTS UPDATE, Apr. 8, 2003, p. 5). In Zazueta-Carrillo, the court held that the filing of a petition for review does not stay the period for voluntary departure, but left open the question of whether the court could grant a petitioner's motion to stay this period. The most recent decision answers this question in the affirmative but leaves open the question of whether the court can grant a motion to stay voluntary departure filed after the expiration of the period for voluntary departure.

The new decision establishes that the court has equitable jurisdiction to grant such a request and that the traditional standard for granting a stay of removal also applies to a stay of voluntary departure. Under this standard, a petitioner must show either (1) "a probability of success on the merits and the possibility of irreparable injury" or (2) "that serious legal questions are raised and the balance of hardships tips sharply in the petitioner's favor." Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998). "These standards represent the outer extremes of a continuum, with the relative hardships to the parties providing the critical element in determining at what point on the continuum a stay pending review is justified." Id.

In this case, the government did not contend that the petitioner failed to meet this standard, arguing only that the court lacked jurisdiction to stay the period for voluntary departure. The court therefore granted the motion for a stay of voluntary departure pending review of the removal order.

El Himri v. Ashcroft, No. 03-71152 (9th Cir. Sept. 19, 2003).