Al-Marbu, Ahmad v. Filip, Mark R. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2055, 05-2824
A HMAD A L-M ARBU,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney
General of the United States,
Respondent.
____________
Petitions for Review of an Order of the
Board of Immigration Appeals.
No. A79-546-194
____________
O N M OTION T O STAY T HE M ANDATE
____________
A PRIL 24, 2008 Œ
____________
R IPPLE, Circuit Judge (in chambers). This matter is before
me on the petitioner’s “Motion to Stay the Mandate of
Panel’s Order, Pending Petition for Writ of Certiorari, and
Request for ‘Unopposed’ 30 Day Extension to File Supple-
mental Brief,” filed on April 2, 2008. For the reason set
forth in this chambers opinion, I deny the requested relief.
Œ
This opinion was released initially in typescript form.
2 Nos. 04-2055, 05-2824
A.
On March 26, 2008, we denied petitioner Ahmad Al-
Marbu’s petition for rehearing and petition for rehearing
en banc. The mandate was scheduled to issue on April 2,
2008, but the filing of this motion to stay on that day has
stayed temporarily the mandate. Mr. Al-Marbu seeks a
stay of this court’s mandate pending a petition for a
writ of certiorari to the Supreme Court. He also requests
30 days to file a brief in support of the motion to stay the
mandate; he explains that he did not have sufficient
time to prepare the present motion.
“When a party asks this court to stay its mandate pend-
ing the filing of a petition for a writ of certiorari, that party
must show that the petition will present a substantial
question and that there is good cause for a stay.” Books v.
City of Elkhart, 239 F.3d 826, 827 (7th Cir. 2001) (Ripple, J.,
in chambers), citing Fed. R. App. P. 41(d)(2)(A). The
grant of a motion to stay the mandate “is far from a
foregone conclusion.” 16A Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure
§ 3987 (3d ed. 1999). Instead, the party seeking the stay
must demonstrate both “a reasonable probability of
succeeding on the merits” and “irreparable injury absent
a stay.” Bricklayers Local 21 v. Banner Restoration, Inc.,
384 F.3d 911, 912 (7th Cir. 2004) (Ripple, J., in chambers);
see also Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995)
(per curiam); United States v. Holland, 1 F.3d 454, 456 (7th
Cir. 1993) (Ripple, J., in chambers). In order to demon-
strate a reasonable probability of succeeding on the merits
of the proposed certiorari petition, the applicant must
show a reasonable probability that four Justices will vote
to grant certiorari and a “fair prospect” that five Justices
will vote to reverse the judgment of this court. See Cali-
Nos. 04-2055, 05-2824 3
fornia v. Am. Stores Co., 492 U.S. 1301, 1307 (1989)
(O’Connor, J., in chambers); see also United States v. Warner,
507 F.3d 508, 511 (7th Cir. 2007) (Wood, J., in chambers);
Williams, 50 F.3d at 1360. We consider the issues that the
applicant plans to raise in the certiorari petition in the
context of the case history, the Supreme Court’s treatment
of other cases presenting similar issues and the consider-
ations that guide the Supreme Court in determining
whether to issue a writ of certiorari. Williams, 50 F.3d
at 1361.
In attempt to demonstrate that a petition for a writ of
certiorari would present a reasonable probability of
succeeding on the merits, counsel lists the five questions
that he will raise in the petition: (1) whether the defective
trial transcript prejudiced his ability properly to appeal
his case and constituted a denial of Due Process;
(2) whether this court denied his Due Process rights “to
have jurisdiction to consider” the merits of his case;
(3) whether the court unconstitutionally denied jurisdic-
tion based on the decision in Ali v. Gonzales, 502 F.3d
659 (7th Cir. 2007), cert. denied sub nom. Ali v. Mukasey, ___
S. Ct. ___, No. 07-798, 2008 WL 1699478 (Apr. 14, 2008);
(4) whether the IJ’s denial of his second motion to con-
tinue the trial constituted an abuse of discretion; and
(5) whether the court’s stay of removal equitably tolled
his voluntary departure period. Counsel argues, in
essence, that our holding that we lacked jurisdiction to
review the IJ’s denial of the motion for continuance
was based on a misreading of our precedent. He contends
that the Ali decision misapplied the court’s decision in
Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). The five
issues that counsel says he will raise in the petition for a
writ of certiorari are the exact same five issues that he
4 Nos. 04-2055, 05-2824
raised in the petition for rehearing with suggestion for
rehearing en banc.
Counsel also submits that Mr. Al-Marbu would suffer
irreparable harm if he were required to leave the Country
now because his wife, a United States citizen, is currently
in Europe seeking advanced medical attention, and he
is the sole custodian of their two children. He offers no
further details regarding his wife’s medical needs, the
length of her stay, or whether there are other arrange-
ments that could be made with respect to the children
or their travel.
B.
I must conclude that Mr. Al-Marbu has not demonstrated
that his petition for a writ of certiorari would present a
reasonable probability of succeeding on the merits. He has
not demonstrated that his case involves an important
question of federal law that should be settled by the
Supreme Court or that his case conflicts with a decision
of the Supreme Court. See Sup. Ct. R. 10(c). Nor has he
argued that there exists a division between the circuits.
See Sup. Ct. R. 10(a). At most, he appears to argue that the
decision in his case conflicts with prior precedent from
this circuit. In deciding his case, we relied upon Ali v.
Gonzales, 502 F.3d 659 (7th Cir. 2007). A petition for a writ
of certiorari was filed in that case on December 12, 2007
and denied on April 14, 2008. Ali v. Mukasey, ___ S. Ct. ___,
No. 07-798, 2008 WL 1699478 (Apr. 14, 2008). Under these
circumstances, I must conclude that it is not likely that
four Justices will vote to grant certiorari in this case.
Finally, I see no reason to prolong these proceedings by
permitting counsel an additional 30 days to file a sup-
Nos. 04-2055, 05-2824 5
plemental brief in support of the request to stay the
mandate. The matters he intends to raise in his petition
for certiorari have been examined thoroughly in the
proceedings in this court and further delay in the issu-
ance of our mandate is not justified.
Accordingly, I deny the motion to stay the mandate.
I further deny the request for a 30-day extension of time
to file a supplemental brief in support of the request to
stay the mandate.
The Clerk is directed to issue the mandate immediately.
IT IS SO ORDERED
USCA-02-C-0072—5-1-08