Dimitrov v. Ashcroft, 03-2166.

• Decision Date: 24 May 2004
• Docket Number: No. 03-2166.,03-2166.
• Citation: 368 F.3d 960
• Parties: Kalin DIMITROV and Zdravka Dimitrova, Petitioners, v. John D. ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

368 F.3d 960

Kalin DIMITROV and Zdravka Dimitrova, Petitioners, v. John D. ASHCROFT, Attorney General of the United States, Respondent.

No. 03-2166.

United States Court of Appeals, Seventh Circuit.

Submitted April 26, 2004.

Decided May 24, 2004.

Richard H. Trais (submitted), Chicago, IL, for Petitioners.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Daniel E. Goldman, S. Nicole Nardone, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, ROVNER, and EVANS, Circuit Judges.

PER CURIAM.

On April 13, 2004, Kalin Dimitrov, an alien whose appeal from the denial by the Board of Immigration Appeals of his claim of asylum was pending before this court, was detained by officers of the Department of Homeland Security while trying to get an extension of his work permit. He was told he'd be immediately removed from the country for overstaying his visa. We do not know what time of day that was, but at approximately 4:50 p.m. Dimitrov's lawyer filed with this court a motion for a stay of removal and at 5:30 one of our judges granted a temporary stay pending consideration of the motion by a three-judge panel. Our Clerk's office was unable, however — either by emailing, faxing, or phoning — to elicit a response from anyone involved in the case at either the Justice Department or the Department of Homeland Security until 9:00 p.m., when a Justice Department attorney emailed the Clerk's office that he would check the status of Dimitrov's removal the next day. That was done and, fortunately, Dimitrov had not yet been removed. But the government's failure to make a prompt and effective response to the notice of our stay impelled us to order the Justice Department to show cause why it should not be sanctioned for failing to ensure that notice of a stay issued after normal business hours was promptly communicated to the relevant immigration officials.

In its response the government explains that upon receiving either word that a motion for a stay of removal may be filed or a copy of the motion, the Justice Department's Office of Immigration Litigation asks the Department of Homeland Security about the status of the alien's removal and conveys DHS's reply to the court so that we can decide how quickly we should act on the motion. If we then issue a stay the Justice Department attorney assigned to the case informs the appropriate DHS district office and the information is recorded in the alien's file and entered into a DHS database. The DHS's Bureau of Immigration and Customs Enforcement is then responsible for stopping the removal. For stays issued after normal business hours, DHS has furnished the Justice Department with a phone number at which the Department can reach a responsible Bureau official.

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