Kahn v. Elwood
| Decision Date | 21 November 2002 |
| Docket Number | No. 1:CV-02-1734.,1:CV-02-1734. |
| Citation | 232 F.Supp.2d 344 |
| Parties | Mohammed Zohaib KAHN, Petitioner, v. Kenneth ELWOOD, District Director, Immigration and Naturalization Service Respondent. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Robert Thomas Balaban, Lewisberry, PA, for Petitioner.
Daryl F. Bloom, U.S. Attorney's Office, Harrisburg, PA, for Respondent.
Before the court are the following motions: (1) Petitioner's Emergency Motion for Stay of Removal Pending Resolution of Appeal from Order of District Court; (2) Respondents' Motion to Lift the Stay of Removal; and (3) Respondents' motion for an Expedited Decision. The court conducted a conference call on this issue and thus, the matters are ripe for disposition.
The factual background of this matter is laid out in the court's November 4, 2002 memorandum and order denying Petitioner's habeas corpus petition and is incorporated by reference. Relevant to the instant motions, however, is the following background. Petitioner is a twenty year-old native and citizen of Pakistan, who entered the United States on December 28, 1996 and who has been a lawful permanent resident of the United States since his entry. On September 18, 2000, Petitioner was convicted in Delaware for possession with intent to distribute marijuana. On November 26, 2001, an immigration judge ordered Petitioner removed from the United States to Pakistan. That decision was sustained by the Board of Immigration Appeals on June 24, 2002.
On September 30, 2002, Petitioner filed a petition for writ of habeas corpus with this court. In a memorandum and opinion dated November 4, 2002, the court denied Petitioner's writ of habeas corpus and vacated the temporary stay of removal. In making its decision the court concluded that "[b]ecause the BIA applied the correct legal standard and followed the applicable regulations, the court finds that [the BIA's] decision was not contrary to the laws of the United States." Khan v. Ashcroft, No. 02-1734, slip op. at 10 (M.D.Pa. November 4, 2002).
On November 15, 2002, Petitioner filed a "Notice of Appeal," from this court's November 4, 2002 order, to the United States Court of Appeals for the Third Circuit. On the same day, Petitioner filed an "Emergency Motion for Stay of Removal Pending Resolution of Appeal from Order of District Court." On November 12, 2002, Petitioner was transferred to Louisiana for final execution of the removal order. (Emer. Mot. to Stay at 2, ¶ 3.)
On November 15, 2002, the court issued a temporary stay of removal pending the outcome of Petitioner's motion for stay pending appeal. In response, Respondents filed a motion to lift the temporary stay along with a supporting brief; in that document, Respondents also addressed the merits of Petitioner's motion for stay pending appeal. Respondents also filed a motion to expedite the court's decision on these matters due to the imminence of Petitioner's removal to Pakistan. The court held a conference call on November 19, 2002 on these issues and heard argument from both sides. Accordingly, the motions are now ripe for disposition.
In his motion for a stay of removal pending appeal, Petitioner contends that the court's order denying his petition for writ of habeas corpus and vacating its previous stay of deportation denied him the right to "fundamental fairness and due process of law." (Emer. Mot. to Stay at 2, ¶ 5.) Petitioner continues to allege that he is entitled to relief from removal in the form of withholding of removal under the United Nations Convention Against Torture and Other Crimes, Inhumane or Degrading Treatment or Punishment. (Id.) Petitioner avers that a stay of removal pending resolution of the appeal to the Third Circuit will not prejudice Respondents. (Id. at 3, ¶ 8.) Because, Petitioner was in the Immigration and Naturalization Service's ("INS") custody from March 7, 2001 through February 4, 2002 and again from September 6, 2002 until present, he argues that further detention pending appeal would work only a minor injury to Respondents (Id.) In contrast, Petitioner argues that if the stay is denied he would face irreparable harm. He would be removed from the United States to Pakistan, a place that he has not lived for a number of years. Petitioner argues that he "has a substantial liberty interest at stake — his right to remain in the United States ..." and not to be "virtually exiled and/or subjected to persecution/extreme hardship." (Id. at ¶ 7.) Petitioner contends that a motion for stay of removal is evaluated under the same standards as a motion for a preliminary injunction. (Id. at 5.)
According to Petitioner, in order for the court to issue a stay of removal pending appeal, he must show (1) a likelihood of success on the merits; (2) that irreparable harm would occur if a stay is not granted; (3) that the potential harm to the movant outweighs the harm to the opposing party if a stay is not granted; and (4) that granting a stay of removal would serve the public interest. See Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987).
Respondents paint a very different picture. Respondents suggest that the potential harm to the United States exceeds any harm caused to Petitioner. For example, Respondents aver that the INS has expended a great deal of time and money in arranging for travel documents and travel authorization for Petitioner to be removed. (Resp. Mot. to Expedite at 6-7.) Moreover, Respondents contend that the only harm to Petitioner is that he will not be present in the United States during the pendency of his appeal. (Representation of AUSA Bloom during November 19, 2002 conference call.) Most importantly, however, Respondents argue that the standard for issuing a motion for stay of removal pending appeal is different than those factors typically considered when deciding whether to grant a preliminary injunction. Respondents allege that Petitioner's stay of removal is "governed by the new stringent, mandatory stay provisions of 8 U.S.C. § 1252(f)(2)." (Br. in Supp. of Mot. to Lift Stay at 2.)
Consequently, the first issue the court must decide is what standard should be employed to determine whether to grant a stay of removal pending appeal. For the reasons that follow, the court concludes that it should employ the traditional standards used in deciding whether to grant a preliminary injunction, rather than the more stringent standards set forth in 8 U.S.C. § 1252(f)(2).
The parties dispute whether the court should, in deciding whether to grant Petitioner's stay pending appeal, apply the traditional test used in deciding whether to grant a preliminary injunction or should apply the strict standard set forth in 8 U.S.C. 1252(f). Section 1252(f) provides:
Limit on injunctive relief
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter,1 as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.
8 U.S.C. § 1252(f).
The relevant inquiry is whether the limitation in § 1252(f)(2) on a court's authority to "enjoin" the removal of an alien applies to a stay pending appeal. Respondents assert that it does and that the plain language of the statute controls. Petitioner asserts that the standard only applies if the court were issuing a permanent injunction, but that it does not apply to a temporary stay of removal pending appeal. For the reasons that follow, the court agrees with Petitioner.
There is a paucity of case law as to the application of § 1252(f)(2) to a stay as opposed to a permanent injunction, and what case law exists is in conflict. Compare Bin Weng v. United States Attorney General, 287 F.3d 1335, 1336-40 (11th Cir. 2002) (); with Mohammed v. Reno, 309 F.3d 95, 96 (2d Cir. October 24, 2002) (); Maharaj v. Ashcroft, 295 F.3d 963, 965-66 (9th Cir.2002) (); Bejjani v. INS, 271 F.3d 670, 687-89 (6th Cir.2001) (); Andreiu v. Ashcroft, 253 F.3d 477, 479 (9th Cir. 2001) (); Lal v. Reno, No. 99-3160, 221 F.3d 1338 (table), [Reported in full] at 2000 U.S.App. LEXIS 15449, 2000 WL 831801 at *1 (7th Cir. June 26, 2000) (); Saini v. INS, 64 F.Supp.2d 923, 929 (D.Ariz.1999) ().2
Third Circuit has not ruled on this issue. However, the court finds the reasoning...
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