Nwakanma v. Ashcroft ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Nwakanma v. Ashcroft No. 03-4317
ELECTRONIC CITATION: 2003 FED App. 0436P (6th Cir.)File Name: 03a0436p.06 director. The petitioner seeks review of that decision. On the
last day prior to the expiration of the period for voluntary
departure, the petitioner filed in this court two motions: 1) a
UNITED STATES COURT OF APPEALS motion to stay voluntary departure pending adjudication of
the petition for review, and 2) a motion to stay removal
FOR THE SIXTH CIRCUIT pending judicial review. The respondent answers that he does
_________________ oppose a stay of voluntary departure, but that he does not
oppose a stay of removal at this time.
GODFREY N. NWAKANMA , X
Petitioner, - While this court has previously concluded that a stay of
- removal may be granted upon balance of the four general
- No. 03-4317 factors for injunctive relief, see Bejjani v. INS, 271 F.3d 670,
v. - 688 (6th Cir. 2001), whether this injunctive power extends to
> stays of the period allowed for voluntary departure is an issue
,
JOHN ASHCROFT , Attorney - of first impression in this circuit. The only circuit to address
General, - this issue previously has held that the equitable power of the
Respondent. - courts of appeals extends to stays of voluntary departure. See
- El Himri v. Ashcroft, 344 F.3d 1261 (9th Cir. 2003) (adopting
N Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1175 (9th Cir.
2003) (Berzon, J., concurring). We find the Ninth Circuit’s
reasoning persuasive. Voluntary departure is a discretionarily
granted alternative to mandatory removal whereby removable
Decided and Filed: December 10, 2003 aliens may leave the country at their own expense and thereby
avoid the penalties that follow on forced removal. A failure
Before: KENNEDY, MARTIN, and MOORE, Circuit to voluntarily depart once voluntary departure has been
Judges. granted carries additional penalties that do not attend on
forced removal. Thus, an alien who has been granted
_________________ voluntary departure who wishes to have her case reviewed
will, if no stay of that voluntary departure period is granted,
OPINION suffer additional penalties and be in a worse position than an
_________________ alien who has been denied voluntary departure in the first
instance. Asylum applicants with potentially meritorious
PER CURIAM. The petitioner, a native and citizen of cases establishing their genuine fear of persecution in their
Nigeria, sought asylum, withholding of removal, and relief home countries will face either returning to those countries
under the Convention Against Torture. The Board of and possibly life-threatening persecution or staying in the
Immigration Appeals summarily affirmed the immigration United States, letting the clock run out on their voluntary
judge’s denial of all such relief, but granted the petitioner departure periods, and suffering the penalties that attach. A
permission to voluntarily depart within 30 days of the date of stay of voluntary departure pending appellate review should
the order or within any extension granted by the district therefore be available on the same showing that authorizes a
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No. 03-4317 Nwakanma v. Ashcroft 3 4 Nwakanma v. Ashcroft No. 03-4317
stay of removal pending review. See Bejjani, 271 F.3d at GRANTED nunc pro tunc to October 29, 2003, the date
688. petitioner filed his motion for stay of voluntary departure.
The stays shall expire upon issuance of the final mandate in
The respondent’s only challenge to the motion to stay the this case or as otherwise directed by the court.
voluntary departure period is an argument that we lack
jurisdiction to grant this motion. He points to 8 U.S.C.
§ 1229c(b)(2), which limits the initial term of voluntary
departure, and § 1252(a)(2)(B)(i), which bars review of
substantive determinations of eligibility for voluntary
departure. However, in granting a stay of voluntary
departure, we do not pass on the substance of the decision to
grant voluntary departure; we only stay the immediate
effectiveness of the relief already granted by respondent in his
discretion, to allow the alien petitioner to receive appellate
review. See Zazueta-Carrillo, 322 F.3d at 1176 (Berzon, J.,
concurring).
In evaluating motions to stay, the factors for injunctive
relief are considered: 1) whether the applicant has
demonstrated a likelihood of success on the merits;
2) whether the applicant will be irreparably injured absent a
stay; 3) whether issuance of the stay will substantially injure
the other interested parties; and 4) where the public interest
lies. Bejjani, 271 F.3d at 688. These factors are balanced;
when a greater showing of irreparable harm in the absence of
a stay is made, a lesser showing of the likelihood of success
on the merits is necessary to support a stay. Michigan
Coalition of Radioactive Material Users, Inc. v. Griepentrog,
945 F.2d 150, 153 (6th Cir. 1991); see also Sofinet v. INS,
188 F.3d 703, 707 (7th Cir. 1999) (using a sliding scale
approach to stays of removal). In the instant case, the
respondent does not oppose a stay of removal; because the
harm to the applicant may be irreparable and because no other
parties will be injured, the balance of harms supports a stay of
removal. Because a stay of removal is appropriate, a stay of
the period for voluntary departure is also appropriate.
Therefore, the motion to stay removal is GRANTED. The
motion to stay the period for voluntary departure is