How to Get A Stay of Removal of An Alien – By Really Trying
by Emmanuel S. Tipon, Esq.
On February 27, our Filipino client, whom we shall call AG, would be flying back to the Philippines pursuant to a final order of deportation if we did not file a Petition for Review on his behalf and succeed in obtaining an order for the stay of his deportation from the Court of Appeals 9th Circuit.
Immigration authorities had been calling AG to report but he was terrified to go and did not report until I told him to do so, assuring him that I had a stay order and was going to talk to the Department of Homeland Security (DHS). I called up the chief of the enforcement and removal office of the Honolulu DHS to tell them that I had a stay order, but the chief was not there, so I left a message. When I arrived at the DHS the officers had already fingerprinted and processed AG.
I told the officer in charge that I had a stay order and showed it to him. You must have convinced the court that you had a strong case to get a stay order, he said. We are going to win the appeal, I predicted.
AG had been convicted of “sexual assault in the third degree” under Hawaii law, and the DHS charged him as deportable for having been convicted of a crime of “child abuse.” We won in the Immigration Court, arguing that AG was wrongfully convicted, that the term “child abuse” was unconstitutionally vague in violation of the due process clause, that “sexual assault in the third degree” does not constitute “child abuse,” and that AG was eligible for cancellation of removal.
The DHS appealed to the Board of Immigration Appeals which vacated the decision of the Immigration Judge and ordered AG removed to the Philippines.
We filed a Petition for Review of the BIA decision with the Court of Appeals. We also asked for a stay of removal pending the adjudication of the petition.
Getting a stay of removal is not an easy task. The requestor must meet the conditions for a temporary stay articulated by the Supreme Court in Nken v. Holder, 556 U.S. 418, 434 (2009). These are:
(1) The stay applicant has made a strong showing that he is likely to succeed on the merits.
(2) The applicant will be irreparably injured absent a stay.
(3) The issuance of a stay will not substantially injure the other parties interested in the proceeding.
(4) The public interest lies in granting a stay.
Many applicants for a stay of removal fail because they cannot establish the four requirements. For example, in Ramos v Barr, No. 19-1728, (CA7 06/05/2019), involving a motion for stay of removal pending appeal filed by a Mexican who had been convicted and sentenced to more than ten years for drug offenses, the majority of a 3-judge Court of Appeals panel, including Judge Amy Coney Barrett (now Supreme Court Justice), denied the motion, holding that the alien “demonstrated neither the irreparable harm nor substantial likelihood of success on the merits” required for a stay under Nken v. Holder, 556 U.S. 418 (2009). The majority said that while it was cognizant that removal imposed a serious burden on petitioner, the Supreme Court had made clear that “the burden of removal alone cannot constitute the requisite irreparable injury.”
In the case of AG, we told the Court of Appeals that:
(1) The stay applicant has made a strong showing that he is likely to succeed on the merits. This is shown in petitioner’s reasons for this Petition for Review. Petitioner has established that the crime of “child abuse” for which he was ordered removed is unconstitutionally void for vagueness; the crime of “sexual assault in the third degree” for which he was convicted is not categorically a crime of “child abuse” within the federal definition; there is no factual basis for the judgment of conviction against petitioner; and the Board used the wrong standard – “abuse of discretion” – rather than the “clearly erroneous” standard, in reviewing the decision of the Immigration Judge.
(2) The applicant will be irreparably injured absent a stay, because he will suffer extreme hardship resulting from his separation from his wife of which he has a constitutional right to be with and from his three children; he will be forced to return to the Philippines which is a third world country and where he has no home, no income, no health insurance, and no close relatives; he will deprived of his constitutional right to be present and defend himself in this case; and “that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.” State of Washington v. Trump, No. 17-35105 (9th Cir. Feb. 9, 2017) (denying motion to stay of district court order staying Executive Order 13769 on “Protecting the Nation from Foreign Terrorist Entry Into the United States”);
(3) The issuance of a stay will not substantially injure the other parties interested in this proceeding, namely the government, because the petitioner has not caused harm to the government or anybody since the time the current proceeding commenced, and there is no indication that he intends to cause any harm; and
(4) The public interest lies in granting a stay, because while the government has an interest in removing removable aliens, the public also has an interest in seeing to it that due process is observed before a person is deprived of his “liberty”, and that “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,’ regardless of ‘whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).” State of Washington v. Trump, No. 17-35105 (9th Cir. Feb. 9, 2017).
The Court of Appeals agreed and granted a stay of removal. The Court has made another Filipino and his family very happy.
ATTY. EMMANUEL S. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. His current practice focuses on immigration law and appellate criminal defense. He has written books and legal articles for the world’s largest law book publishing company and writes legal articles for newspapers. Listen to The Tipon Report which he co-hosts with son Noel (senior partner of the Bilecki & Tipon Law Firm) on KNDI 1270 AM band every Thurs. at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone, (808) 225-2645. E-Mail: email@example.com. Websites: www.tiponlaw.com
The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship.