The opinion of the court was delivered by: Sylvia H. Rambo, United States District Judge
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 (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).
A. Standard employed to stay removal pending appeal
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 ...