188 F.3d 703 (7th Cir. 1999), 98-2853, Sofinet v. Immigration & Naturalization Serv.

Docket Nº:98-2853
Citation:188 F.3d 703
Party Name:Ioan Sofinet, Petitioner, v. Immigration and Naturalization Service, Respondent.
Case Date:August 23, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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188 F.3d 703 (7th Cir. 1999)

Ioan Sofinet, Petitioner,


Immigration and Naturalization Service, Respondent.

No. 98-2853

United States Court of Appeals, Seventh Circuit

August 23, 1999

Petition for Review of an Order of the Board of Immigration Appeals No. A75-252-600

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[Copyrighted Material Omitted]

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Before Bauer, Flaum, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

Ioan Sofinet is a 34-year-old Romanian who is seeking asylum in the United States. Thus far, he has been unsuccessful: first, the Chicago office of the Immigration and Naturalization Service ("INS") found him deportable and denied his petition for asylum, after a hearing before an immigration judge ("IJ") and then the Board of Immigration Appeals ("BIA") affirmed that determination. Next, Sofinet filed a notice of appeal to this court, as he is permitted to do under the Immigration and Naturalization Act ("INA") sec. 106(a), 8 U.S.C. sec. 1105a(a), and he sought a stay of deportation pending our consideration of his appeal. (8 U.S.C. sec. 1105a was repealed by the Illegal Immigration Reform and Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009. However, because Sofinet was in deportation proceedings on the effective date of the Act, the transitional rules provide for judicial

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review under sec. 1105a(a) as it existed before IIRIRA, subject to a caveat discussed further below. IIRIRA sec. 309(c)(4).) The INS did not oppose his request for a stay, and on March 23, 1999, this panel granted the stay and ordered the case to proceed to briefing and argument. This opinion explains in somewhat greater detail why we found the stay to be appropriate.

Before Congress amended the INA in 1996, Section 106(a)(3) of the statute provided for an automatic stay upon the service of a petition for review for most aliens, unless a court ordered otherwise. See 8 U.S.C. sec. 1105a (a)(3), the full text of which we reproduce in the margin.1 Like many other aspects of the law, this one was changed by IIRIRA. Under the transitional rules established by IIRIRA for judicial review of cases of aliens who were placed in deportation proceedings before April 1, 1997, and whose final orders of deportation were entered more than 30 days after the date of enactment of IIRIRA--i.e. after October 30, 1996--the presumption with respect to stays pending appellate review has essentially been reversed. Section 309(c)(4)(F) of IIRIRA states that "service of the petition for review shall not stay the deportation of an alien pending the court's decision on the petition, unless the court orders otherwise. . . ." 110 Stat. at 3009-626.

Sofinet's first argument in his moving papers was that he was entitled to the automatic stay provided by the pre-IIRIRA version of the law. It is clear, however, that he falls under the transitional IIRIRA rules. The BIA began deportation proceedings against Sofinet on January 24, 1997 and issued its final order of deportation on June 24, 1998, well after 30 days beyond the enactment of IIRIRA. (Even if the IJ's order were thought to be the "final order of deportation," Sofinet is still under IIRIRA, because she issued that order on March 17, 1997.) See Lucacela v. Reno, 161 F.3d 1055, 1057 (7th Cir. 1998). As in Lucacela, the question here is therefore whether Sofinet has made the necessary showing for a discretionary stay of deportation pending judicial review.

This court, along with the other courts of appeals, applies the general criteria developed for stays or injunctions pending appeal. See generally Fed. R. App. P. 8, 18. Lucacela...

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