De Leon v. I.N.S.

Decision Date22 May 1997
Docket NumberNo. 97-70127,97-70127
Citation115 F.3d 643
Parties97 Cal. Daily Op. Serv. 3847, 97 Daily Journal D.A.R. 6558 Mercedes DE LEON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Enrique Arevalo, Victor D. Nieblas P., South Pasadena, CA, for petitioner.

Allen W. Hausman, Office of Immigration Litigation, Department of Justice, Washington, DC, for respondent.

Petition for Review of a Decision of the Board of Immigration Appeals Submitted to the Motions Panel May 20, 1997.

Before: FLETCHER, REINHARDT and FERNANDEZ, Circuit Judges.

Petitioner Mercedes De Leon moves for a stay of deportation pending disposition of her petition for review of the Board of Immigration Appeals' order affirming the denial of her applications for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158(a) & 1253(h), and suspension of deportation under section 244(a) of the INA, 8 U.S.C. § 1254(a).

Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), in most cases the filing of a petition for review automatically stayed the petitioner's deportation pending review. See 8 U.S.C. § 1105a(a)(3), repealed by IIRIRA § 306(b). IIRIRA eliminated the automatic stay. See IIRIRA § 309(c)(4)(F). Now, "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." Id.

The court has been inundated with motions for stay of deportation since the enactment of IIRIRA. To enable this court to process the large number of stay requests, and to eliminate the risk that petitioners will be deported before their stay requests are decided, we adopt the following procedures which shall apply unless and until the court adopts different rules or procedures:

1. The filing of a motion for stay or a request for a stay contained in a petition for review will stay a petitioner's deportation temporarily until the court rules on the stay motion;

2. Respondent's opposition, or notice of non-opposition, to the motion for stay must be filed within seven days after service of the motion on the agency, pursuant to Fed.R.App.P. 27(a); see also Fed.R.App.P. 26(c) (providing three-day extension for filing after service by mail); and,

3. The motion for a stay of...

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13 cases
  • Andreiu v. Reno, Attorney General
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 23, 2000
    ...(9th Cir. 1995) (internal quotation marks omitted). On March 15, 1999, we temporarily stayed Andreiu's removal pursuant to De Leon v. INS, 115 F.3d 643 (9th Cir. 1997). We subsequently appointed pro bono counsel and requested additional briefing on section 1252(f)(2)'s applicability to a st......
  • Prieto-Romero v. Clark
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 25, 2008
    ...of an appellate order hinges on the mandate'") (quoting United States v. Foumai, 910 F.2d 617, 620 (9th Cir.1990)); De Leon v. INS, 115 F.3d 643, 644 (9th Cir.1997) (adopting rule that "filing of a motion for stay ... will stay a petitioner's deportation temporarily until the court rules on......
  • Quezada-Bucio v. Ridge
    • United States
    • U.S. District Court — Western District of Washington
    • May 10, 2004
    ...1. Petitioner contends that because he has appealed the BIA's decision and because his removal has been stayed pursuant to DeLeon v. INS, 115 F.3d 643 (9th Cir.1997), his custody is still governed by INA § 236 rather than INA § INA § 241(a)(1)(B) provides that: The removal period begins on ......
  • Mariscal-Sandoval v. Ashcroft
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 28, 2004
    ...otherwise." 8 U.S.C. § 1252(b)(3)(B). Despite Congress's statutory removal of automatic stays, the court's opinion in De Leon v. INS, 115 F.3d 643 (9th Cir.1997), establishes a new found basis in law for automatic temporary stays. The opinion says: "The filing of a motion for stay or a requ......
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