Petition for Writ of Certiorari — Tesfagababer v. Holder (No. 08-693)
Supreme Court brief2008
Ask Donna
What actually matters in this document.
Text
Supreme Co =
° ret Us
\(Y
| 08-693 Nov21 2008
No. 08-__OFFICE OF THE CLERK
IN THE
Supreme Court of the Hnited States
SOLOMON D. TESFAGABER,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
DONALD B. AYER _ CHRISTIAN G. VERGONIS
SAMUEL ESTREICHER Counsel of Record
MEIR FEDER LAURA TUELL PARCHER
NYU LAW SCHOOL JULIET JOHNSON KARASTELEV
SUPREME COURT CLINIC JONES DAY
40 Washington Sq. 51 Louisiana Avenue, N.W.
South Washington, DC 20001
New York, NY 10012 (202) 879-3939
(212) 998-6226
November 21, 2008 Counsel for Petitioner
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002
i
QUESTION PRESENTED
Whether a circuit court’s decision to stay an alien’s
removal pending consideration of the alien’s petition
for review is governed by section 242(f)(2) of the
Immigration and Nationality Act, 8 U.S.C.
§ 1252(f—-which provides that no court shall “enjoin”
the removal of an alien unless the alien shows by
clear and convincing evidence that the entry or
execution of such order is prohibited as a matter of
law—as the court below and one other court of
appeals have held, or whether that determination is
instead governed by the _ traditional (and
substantially less demanding) multifactor balancing
test for stays and preliminary injunctive relief, as
eight other courts of appeal have held.
r
PARTIES TO THE PROCEEDING
The parties to the proceeding below are contained
in the caption of the case.
ill
TABLE OF CONTENTS
Page
QUESTION PRESENTED ...........ccccsccsesesssseseseeeececeee. i
PARTIES TO THE PROCEEDING ..............ccseece000+- ii
TATE CFF WAT TIIOIT II oo ovees csc ecsscesccseeccessceccsesseess v
CI oc ccicssciscsccscctsdscecsececsueviasssscdsce 1
ss basen van sadbsansbdvedons 1
Fe I vvnesccoscnccssesseccsccsncecscesscesseeoscacs 1
STATEMENT OF THE CASE .............cccccccceccceeceeeeees 2
REASONS FOR GRANTING THE PETITION........ 6
I. THE FEDERAL COURTS ARE DEEPLY
DIVIDED ON THE IMPORTANT
QUESTION WHETHER SECTION 242(F)
GOVERNS THE ISSUANCE OF STAYS
_OF REMOVAL PENDING JUDICIAL
REVIEW OF BIA ORDERS ...........c.cccccceceeeeeeeees 9
II. THIS CASE IS A GOOD VEHICLE FOR
RESOLVING THE CIRCUIT SPLIT................ 13
III. RESOLUTION OF THE QUESTION
PRESENTED REQUIRES REVIEW OF
AN INTERLOCUTORY ORDER .............cccc000- 20
IV. THE COURT BELOW APPLIED THE
INCORRECT STANDARD..........cccccccccscecscessees 22
SR NEPTIPT spssunaith sale devAlAbsuonenbaaceicschcesnsbuaveiuipaaeesn 27
lV
TABLE OF CONTENTS
(Continued)
APPENDIX
Order of the United States Court of Appeals
for the Fourth Circuit (Nov. 12, 2008)...........
Decision of the Board of Immigration Appeals
a a tihnnsea
Decision and Order of the Immigration Court
PN BG IID Stidadecckphicditadertincbntatabinniisiivasinerenens
Declaration of Solomon Tesfagaber ..................06+.
Page
Vv
TABLE OF AUTHORITIES
Page
Cases
Alimi v. Ashcroft, 391 F.3d 888 (7th Cir. 2004)...... 14
Alretae v. Chertoff 471 F.3d 353 (2d Cir. 2006) .... 19
Amegashie v. Gonzales,
188 F. App’x 226 (4th Cir. 2006).................. 18, 20
Andretiu v. Ashcroft,
253 F.3d 477 (9th Cir. 2001)............ 11, 24, 25, 26
Arevalo v. Ashcroft, _
. 344 F.3d 1 (1st Cir. 2009)................. 11, 16, 25, 26
Barefoot v. Estelle, 463 U.S. 880 (1983) ............. 9, 21
Beyani v. INS, 271 F.3d 670 (6th Cir. 2001) .......... 11
Bell v. Cone, 543 U.S. 447 (2005).............cccceccseeeeseees 8
Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005)....20
Dada v. Mukasey, 128 S. Ct. 2307 (2008)............... 14
Davies v. INS, 10 F. App’x 223 (4th Cir. 2001)....... 18
Dorelien v. U.S. Attorney General,
317 F.3d 1314 (11th Cir. 2008) ................... soe 13
Deuglas v. Ashcroft, 374 F.3d 230 (3d Cir. 2004)...11
Gulfstream Aerospace Corp. v. Mayacamas
I I SP, FE COO ncccccsccccnnseccccscccossesees 23
Hor v. Gonzales, 400 F.3d 482
(7th Cir. BO0G).........0......2 11, 13, 15, 16, 23, 25, 26
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)........ 15
Kay v. Ashcroft, 387 F.3d 664 (7th Cir. 2004)........ 15
Kenyeres v. Ashcroft,
| 12, 13, 14
Khouzam v. Hogan, .
497 F. Supp. 2d 615 (M.D. Pa. 2007)............. vis a
LeSane v. Hall’s Security Analyst, Inc.,
239 F.3d 206 (2d Cir. 2001)....... 0. ceceeeeee 19
vi
TABLE OF AUTHORITIES
(Continued)
Page
Lim v. Ashcroft, 375 F.3d 1011 (10th Cir. 2004)....11
Mohammed v. Reno,
309 F.3d 95 (2d Cir. 2002)................c0000 11, 16, 26
Nibagwire v. Gonzales,
450 F.3d 153 (4th Cir. 2006) ........................0000. 17
Santiago v. Attorney General,
216 F. App’x 232 (Sd Cir. 20077) ............ccccccccseese 18
Sembiring v. Gonzales,
499 F.3d 981 (9th Cir. 2007) ..........................008. 19
Silva-Carvalho Lopes v. Mukasey,
617 F.3d 166 Gd Cir. 2008)................................ 17
Tairova v. Gonzales,
207 F. App’x 886 (9th Cir. 2006)................0000.... 19
Testamichael v. Gonzales,
411 F.3d 169 (5th Cir. 2005)...... 11, 23, 24, 25, 26
Teshome-Gebreegziabher v. Mukasey,
528 F.3d 330 (4th Cir. 2008) .................... 7, 10, 11
Teshome-Gebreegziabher v. Mukasey,
No. 08-1060, 2008 WL 4741721
(oem Gare. Gres. So, Bae) ..........................00 7, 12, 24
UAW, Local 283 v. Scofield,
SEZ U.S. 205 (1965) .........cccscccccccecees iciieaaillicasaain 22
Weng v. U.S. Attorney General,
287 F.3d 1335 (11th Cir. 2002) .......................... 11
William v. Gonzales,
Mae te Ee CMEEE GIB, BOOT) ........000ccccscccccccscccese 14
Woldemichael v. Gonzales,
197 F. Appx 712 (Oth Cir. 2006)...............cccccscoee 15
vii
TABLE OF AUTHORITIES
(Continued)
Page
Statutes
Immigration and Nationality Act
§ 106, 8 U.S.C. § 1105a(a)(8) (repealed 1996) .....9
OF RR ovina es snnsoncccnnsnosiasanhantceneonns 18
BG, BUF. 9 TG ivcsccncecccccsccsssccccess 17, 19, 20
I OF EE Os Bie cscseccscccsssnsncasecsoncsecses passim
EE ee a i, Z3
EEA apomean eaanreae 21
a icteetdsaeunarebenadeaieniene 26
Rules and Regulations
il sais deniignaiihipasniaicaiisieiliia 6
i aindlcmnmiannemenuninlias 14
a cada sas tacemlanaeen 24
SE ee aD ‘siemens 24
Other Authorities
U.S. Department of State, 2007 Country Reports
on Human Fights Practices, Ethiopia (2008)....15
OPINIONS BELOW
The order of the United States Court of Appeals for
the Fourth Circuit denying Petitioner’s request for a
stay of removal (Pet. App. 1a) is unreported. The
order of the Board of Immigration Appeals dismissing
Petitioner’s appeal (Pet. App. 2a—3a) and the decision
and order of the Immigration Court denying his
motion to reopen (Pet. App. 4a—-10a) are also
unreported.
JURISDICTION
Petitioner seeks review of an interlocutory order of
the court of appeals before entry of judgment in that
court. The order was entered on November 12, 2008.
This Court has jurisdiction pursuant to 28 U.S.C.
§ 1254(1).
STATUTE INVOLVED
This case involves section 242 of the Immigration
and Nationality Act, 8 U.S.C. § 1252, which provides
in relevant part:
(b)(3)(B) Stay of order
Service of the petition [for review] . . . does not
stay the removal of an alien pending the court’s
decision on the petition, unless the court orders
otherwise.
© Limit on injunctive relief
(1) In general
Regardless of the nature of the action or claim or
of the identity of the party or parties bringing the
2
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, 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.
(2) Particular cases
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.
STATEMENT OF THE CASE
Petitioner seeks review of the Fourth Circuit's
denial of his motion for a stay of removal pending
disposition of his petition for review of an order of the
Board of Immigration Appeals (“BIA” or “Board”).
The BIA order under review in the Fourth Circuit
denied on procedural grounds Petitioner’s motion to
reopen the remova! proceedings that resulted in an in
absentia order of his removal. Petitioner’s motion to
reopen is premised upon, inter alia, a claim that he
will be tortured if returned to Ethiopia, thus
rendering his removal illegal under the Convention
Against Torture (“CAT”), as implemented by federal
law.
3
Petitioner is an ethnic Eritrean who was born and
raised in Ethiopia. Pet. App. lla. While living in
Ethiopia from 1965 until approximately 1986,
Petitioner was persecuted and tortured by
government authorities on account of his Eritrean
ethnicity and his family’s political affiliation with the
pro-independence opposition group, the Eritrean
Liberation Front. /d. On account of these affiliations
and supposed wrongs against the ruling regime,
Petitioner was frequently detained without charges
by Ethiopian authorities. Pet. App. 12a. In one
instance, he was arrested for not participating in pro-
Ethiopian political activities, and during the ensuing
detention was whipped to such an extent that he
required hospitalization following his release. Jd. On
another occasion, he was detained in a tiny cell
without a bed for two weeks as part of a government
round up of Eritreans in retaliation for an Ethiopian
military defeat at the hands of Eritrean forces. /d.
During this detention, government officials savagely
beat Petitioner into unconsciousness. /d. Once,
Petitioner was fired upon by Ethiopian soldiers and
was fortunate to escape with his life. /d Petitioner’s
father and five siblings also suffered abuse at the
hands of the Ethiopian regime. Pet. App. lla. Asa
result of this persecution, Petitioner’s five siblings
were each granted asylum or similar status in the
United States, Canada or Italy. Jd.
In September 1986, Petitioner entered the United
States via Greece as a refugee from Ethiopia. Pet.
App. 12a—13a. While in the United States, Petitioner
attended college, worked a steady job, paid taxes on a
4
timely basis and assisted in the care of family
members. Pet. App. 13a. In 1995, Petitioner entered
an A/ford plea to charges of conspiracy to possess
cocaine with intent to distribute and was sentenced
to three years, all but 139 days of which were
suspended. Pet. App. 13a—14a. Although Petitioner
maintains his innocence, id., he was, as a result of
this conviction, detained and placed into removal
proceedings in approximately June 1999. Pet. App.
14a.
In December 1999, Petitioner appeared without
counsel in Immigration Court in Baltimore for a
removal hearing. /d. Despite being present in the
courtroom, Petitioner did not hear his case called and
was told at the end of the hearing that he had been
ordered removed in absentia. Id. At the instruction
of the Immigration Judge, Petitioner immediately
sought assistance from the clerk of the Immigration
Court. /d. The clerk helped Petitioner file a motion
to reopen, but failed to properly instruct him on
service of the motion, causing Petitioner to
mistakenly serve the Immigration Judge’s clerk
rather than counsel for the government. /d. Based
solely on this procedural defect, the court denied the
motion. Upon learning of this problem, Petitioner
diligently attempted to remedy the error by re-filing
the motion to reopen, but was told that he was not
permitted to do so. /d. Petitioner therefore believed
that his opportunity to reopen his removal
proceedings was foreclosed.
+)
Unbeknownst to Petitioner, on March 22, 2001, the
Board of Immigration Appeals overruled the
Immigration Judge’s denial of the motion to reopen
and ordered the removal proceedings reopened. Pet.
App. 7a. Neither Petitioner nor the undersigned
counsel learned of this order or the subsequent
hearing until after the filing of the motion to reopen
that is the subject of the insta. ° proceedings. See
Mot. Stay of Removal at 4 n.3.
On March 28, 2001, the Immigation Court mailed
a notice to appear for a hearing to Petitioner. Pet.
App. 7a. Notice was sent to Petitioner’s permanent
address at St. Michael’s Circle in Odenton, Maryland.
Pet. App. 2a. This address is the home of Petitioner’s
sister, with whom he maintains a residence to this
day. Pet. App. 3a, 13a. At the time the hearing
notice was sent, however, Petitioner was temporarily
absent (Pet. App. 3a) as a result of a domestic dispute
with his sister. See Mot. Stay Removal at 3—4 & n.3.
Petitioner’s sister returned the notices to the
Immigration Court Pet. App. 7a.
On June 13, 2001, the [Immigration Court held a
removal hearing in Petitioner’s case, but Petitioner
was not present due to lack of notice. /d. As a result,
the Immigration Judge ordered Petitioner removed in
absentia. Id.
In August 2007, Petitioner was taken into custody
by Immigration and Customs Enforcement. /d In
March 2008, Petitioner, still proceeding without the
assistance of counsel, unsuccessfully attempted to file
another motion to reopen. /d. Then, in June 2008,
6
the undersigned counsel was retaiied to assist
Petitioner on a pro bono basis. Counsel filed a
motion to reopen along with a motion for stay of
removal. Jd. Emphasizing that Petitioner had never
been heard on the merits, counsel sought a hearing
on, inter alia, Petitioner’s claim that his removal is
prohibited by the Convention Against Torture (““CAT”
or “Convention”), as implemented by 8 C.F.R.
§ 208.16(c)(2). Jd. In support, counsel submitted a
declaration by Petitioner that detailed his past
persecution in Ethiopia and the substantial grounds
for believing that Petitioner, as an ethnic Eritrean,
will be subjected to torture if removed to Ethiopia.
Pet. App. lla—15a.
Without holding a hearing or allowing counsel to
present evidence, the Immigration Judge denied
Petitioner’s motions as procedurally barred and (in
the alternative) on the ground that, notwithstanding
his unrebutted declaration, Petitioner had “presented
no independent evidence” in support of his CAT
claim. Pet. App. 9a—10a. Petitioner appealed to the
BIA, challenging both conclusions.
On October 1, 2008, the BIA dismissed Petitioner's
appeal of the Immigration Judge’s ruling in a one-
paragraph order. Pet. App. 2a. The Board did not
address whether Petitioner had presented sufficient
evidence in support of his CAT claim. Pet. App. 2a—
3a. Regarding the Immigration Judge’s procedural
holding, the Board acknowledged that “there is
evidence in the record to support the fact that when
the [2001] hearing notice was sent, [Petitioner]
7
temporarily was not living at [his address of record]”
and therefore did not receive the notice. Pet. App. 3a.
The Board noted, however, that “[Petitioner] does not
claim that he filed a proper notice of a new address.”
Id. The Board therefore concluded that the
Immigration Judge’s denial of the motion to reopen
on procedural grounds was proper. /d.
Petitioner filed a petition for review of the BIA’s
order with the Fourth Circuit on October 9, 2008,
along with a motion for a stay of removal pending
that court’s consideration of the petition for review.
Although Petitioner raised and preserved the issue of
the proper standard for the issuance of a stay of
removal, both parties assumed in their briefing that
the Fourth Circuit would follow its new precedent,
Teshome-Gebreegziabher, 528 F.3d 330 (4th Cir.
2008), rehg en banc denied, No. 08-1060, 2008 WL
4741721 (4th Cir. Oct. 30, 2008), and apply the
stringent standard of review set forth in section
242(f)(2) of the INA.
On November 12, 2008, a panel of the Fourth
Circuit denied Petitioner’s motion for stay of removal
pending consideration of his petition for review. Pet.
App. la. Although the court’s order did not expressly
cite section 242(f)(2), the parties (as noted) had
litigated the propriety of the stay under that section
and the government had proffered no alternative
basis for decision. In addition, the order was issued
just thirteen days after the court denied rehearing en
banc in TVeshome-Gebreegziabher. See 2008 WL
4741721, at *1. The panel in this case was keenly
8
aware of that decision, given that all three judges
had authored or joined an opinion respecting that
denial of rehearing and discussing in detail the
applicability of section 242(f)(2) to stay requests. Jd;
see also Bell v. Cone, 543 U.S. 447, 456 (2005)
(“absent an affirmative indication to the contrary,”
the Court “presume[s]” that courts follow their own
precedent).
REASONS FOR GRANTING THE PETITION
This case presents the question whether section
242(f)(2) of the INA supplies the standard governing
the issuance of a stay of removal pending an alien’s
petition for review of a BIA order. Section 242(f)(2)
provides that no court shall “enjoin” the removal of
an alien absent clear and convincing evidence that
removal is prohibited as a matter of law. The Fourth
Circuit (in this case and others) and the Eleventh
Circuit read the word “enjoin” in section 242(f)(2) to
encompass the issuance of a stay pending judicial
review. In contrast, eight other Circuits reject the
applicability of section 242(f)(2) to stay applications,
ard instead apply the traditional (and substantially -
less demanding) multifactor balancing test for stays
and preliminary injunctive relief.
This Court should grant the petition because the
question presented is an important and recurring one
on which the circuit courts are hopelessly divided.
Justice Kennedy has previously opined—when the
circuit split was far less pronounced than it is
today—that the question presented warrants the
Court’s review in an appropriate.case. This is such a
9
case because the Fourth Circuit’s choice of standard
likely affected the outcome of Petitioner’s request for
a stay. Moreover, as in Barefoot v. Estelle, 463 U.S.
880, 887 (1983), because the question presented
involves “the appropriate standard for granting or
denying a stay .. . pending disposition of [a case on
the merits] by a federal court of appeals,” certiorari
before the court of appeals renders final judgment is
both appropriate and necessary.
I. THE FEDERAL COURTS ARE DEEPLY
DIVIDED ON THE IMPORTANT QUESTION
WHETHER SECTION 242(F) GOVERNS THE
ISSUANCE OF STAYS OF REMOVAL
PENDING JUDICIAL REVIEW OF BIA
ORDERS
The question presented is which of two competing
standards controls a circuit court’s determination
whether to stay an alien’s removal pending
consideration of the alien’s petition for review of a
BIA order. Before 1996, most removable aliens were
entitled to automatic stays of their removal orders
pending circuit-court review of those orders. See INA
§ 106, 8 U.S.C. § 1105a(a)(3) (repealed 1996). That
changed with enactment of the Illegal Immagration
Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), which amended the INA to provide that
the filing of a petition for review with the circuit
court “does not stay the removal of {the} alien
pending the court’s decision on the petition, unless
the court orders otherwise.” INA § 242(b)(3)(B),
8 U.S.C. § 1252(b)(3)(B). Section 242(b)(3)(B) does
10
not, however, specify the standard that a court
should use in deciding whether to grant:a stay.
The United States has taken the position that a
separate provision of the INA added by the IITRIRA,
namely section 242(f), 8 U.S.C. § 1252(f), provides the
applicable standard. That subsection, entitled “Limit
on injunctive relief,” contains two subparts. The first
subpart restricts the availability of class-action and
pre-enforcement injunctions in the immigration
context by providing that “no court (other than the
Supreme Court) shall have jurisdiction or authority
to enjoin or restrain the operation of the
[immigration laws], other than with respect to the
application of such provisions to an individual alien
against whom proceedings under such part have been
initiated.” INA § 242(f)(1), 8 U.S.C. § 1252(f)(1). The
second subpart, in turn, provides a standard for
injunctions in the case of an individual against whom
enforcement proceedings have been initiated: “[NJo
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.” INA § 242(f)(2), 8 U.S.C. § 1252(f)(2).
With four judges dissenting from the denial of
rehearing en banc, the Fourth Circuit recently joined
the Eleventh Circuit in adopting the government’s
position and concluding that section 242(f)(2)
provides the standard for a stay pending circuit-court
review of a BIA order. See Teshome-Gebreegziabher,
528 F.3d at 332-35, rehg en banc denied, 2008 WL
il
4741721, at *1; Weng v. U.S. Att'y Gen., 287 F.3d
1335, 1336-40 (11th Cir. 2002). ‘These courts have
reasoned that “stay’ is a subset of the broader term
‘enjoin”; that “it is a ‘kind of injunction’ directed at a
judicial case or proceedings within it’; and that
section 242(f)(2) therefore applies to requests for
stays pending review. Teshome-Gebreegziabher,
528 F.3d at 333; accord Weng, 287 F.3d at 1338.
By contrast, eight circuit courts have rejected the
reasoning of the Fourth and Eleventh Circuits and
have held instead that an alien’s request for a stay is
governed by the traditional multifactor test for stays
and preliminary injunctive relief, pursuant to which
a court measures and balances the applicant’s
likelihood of success on the merits, the respective
hardships to the parties, and the public interest. See
Testamichael v. Gonzales, 411 F.3d 169, 171—76 (5th
Cir. 2005); Hor v. Gonzales, 400 F.3d 482, 483-85
(7th Cir. 2005); Douglas v. Ashcroft, 374 F.3d 230,
233-34 (3d Cir. 2004); Lim v. Ashcroft, 375 F.3d
1011, 1012 (10th Cir. 2004); Arevalo v. Ashcroft,
344 F.3d 1, 6-9 (1st Cir. 2003); Mohammed v. Reno,
309 F.3d 95, 98-100 (2d Cir. 2002); Beyani v. INS,
271 F.3d 670, 687-89 (6th Cir. 2001); Andreiu v.
Ashcroft, 253 F.3d 477, 480-83 (9th Cir. 2001) (en
banc). These courts take the position that stays and
injunctions are distinct legal concepts and that the
issuance of a stay for the duration of an alien’s
petition for review therefore does not “enjoin” the
alien’s removal within the meaning of section
242(f)(2).
12
Justice Kennedy opined on the necessity of
resolving this circuit split—at a time when just four
circuits had considered the matter—in his in-
chambers opinion in Kenyeres v. Ashcroft, 538 U.S.
1301, 1303—05 (2003). He observed then that “[t]he
courts on each side of the split have considered the
contrary opinions of their sister Circuits and have
adhered to their own expressed views.” Jd. at 1304.
Since Kenyeres, the split has only deepened, with
several of the nation’s circuit judges rendering
additional comprehensive and well-reasoned opinions
on both sides of the issue. Moreover, the Eleventh
Circuit’s ruling is no longer just an early outlier. The
Fourth Circuit’s decision to adopt the minority view
is the most recent ruling in this area, and that court,
in the face of contrary authority from eight of its
sister Circuits, firmly rejected a request to reconsider
the holding en banc. See Teshome-Gebreegziabher,
2008 WL 4741721, at *1-4 (Shedd, J., concurring in
the denial of rehearing en banc); see also id,
2008 WL 4741721, at *4-9 (Michael, J., dissenting
from the denial of rehearing en banc).
As Justice Kennedy further noted, “[t]he issue is
important” because the “opportunity to present one’s
meritorious grievances to a court’—which might be
lost if an excessively stringent standard is applied to
stay applications—“‘supports the legitimacy and
public acceptance of a _ statutory regime,”
“particularly .. . in the immigration context.” Jd. at
1305. This is especially so where, as here, “[a]pplying
a heightened burden of proof to temporary stays of
deportation will have a unique effect on a great
13
number of litigants.” Dorelien v. U.S. Att’y Gen.,
1325 (llth Cir. 2003) (Barkett, J.) (dissenting from
denial of rehearing en banc). In the Fourth and the
Eleventh Circuits, all but an infinitesimally few
number of aliens wiil be subject to removal pending
judicial review of the merits of their claims. See Hor,
400 F.3d at 483. Many of these aliens may be subject
to persecution or torture upon their removal to the
designated country. And although the INA allows
aliens to continue to litigate certain claims from
abroad, and to return to the United States if
victorious, this right “would not be worth much if the
alien has been maimed or murdered in the interim.”
Id. at 485.
Because the heightened standard of review is all
but insurmountable, and the repercussions may be
life-threatening, Justice Kennedy’s conclusion in
Kenyeres holds true today: “Given the significant
nature of the issue and the acknowledged
disagreement among the lower courts, the Court...
should examine <¢ id resolve the question in an
appropriate case.” 538 U.S. at 1305..
Il. THIS CASE IS A GOOD VEHICLE FOR
RESOLVING THE CIRCUIT SPLIT
Kenyeres was not an appropriate case for certiorari
in Justice Kennedy’s view because the alien there
was unlikely to prevail in his request for a stay under
either of the competing standards. Jd. This is an
appropriate case, by contrast, because the Fourth
Circuit’s application of section 242(f)(2) led to the
denial of a stay that would have been warranted
14
under the less demanding multifactor balancing test.
See Kenyeres, 538 U.S. at 1306-07 (“[m]y assessment
likely would be different in a case where the choice of
[the] standard applicable to a request for a stay could
influence the outcome” (emphasis added)).
For one thing, in applying section 242(f)(2), the
Fourth Circuit was prohibited from taking into
account three of the four traditional elements, each of
which strongly counsels in favor of a stay in this case.
There is no question that Petitioner will suffer
irreparable harm if he is removed to Ethiopia: he
will arguably lose all opportunity for judicial review
of the denial of his motion to reopen because once an
alien leaves the United States, “pursuant to
regulation, the motion to reopen will be deemed
withdrawn.” Dada v. Mukasey, 128 S. Ct. 2307, 2318
(2008);. accord 8 C.F.R. § 1003.2(d) (“{aJny departure
from the United States, including the deportation or
removal ofa person . . . occurring after the filing of a
motion to reopen or a motion to reconsider, sha//
constitute a withdrawal of such motion’ (emphasis
added)); see also Alimi v. Ashcroft, 391 F.3d 888, 893
(7th Cir. 2004) (alien’s loss of “all possibility of
judicial review” constitutes “irreparable injury”). But .
see William v. Gonzales, 499 F.3d 329, 334 (4th Cir.
2007) (holding 8 C.F.R. § 1003.2(d) invalid).
Even more importantly, Petitioner will likely be
tortured if returned to Ethiopia. As set forth in his
uncontroverted declaration, Pet. App. 1la—15a, when
he lived in Ethiopia, Petitioner was, because of his
ethnicity and political beliefs, the victim of arbitrary
15
arrests and detentions, beating? and attempted
murder, all perpetrated by the Ethiopian
- government. See supra pp. 2—-3.! In addition, as a
result of ongoing tensions between Ethiopia and
Eritrea, which obtained independence from Ethiopia
in 1998 after a war of almost thirty years, the
Ethiopian regime continues to engage in the unlawful
killing, beating, abuse, mistreatment, and arbitrary
arrest and detention of ethnic Eritreans. See U.S.
Dep’t of State, 2007 Country Reports on Human
Rights Practices, Ethiopia (2008). This ongoing
tension and simmering conflict between the two
nations creates a significant risk of harm for someone
like Petitioner, who will be considered an enemy to
Ethiopia’s ruling party and will be a prime target for
torture and detention. See 1d.
As courts have recognized, the physical and
psychological injuries from torture are irreparable
harms that can never be fully redressed. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Hor,
400 F.3d at 485. Moreover, this grievous and
irreparable harm far outweighs the “lesser ‘injury’ to
the Government” of permitting Mr. Tesfagaber, who
1 Such “personal prior detention and physical abuse at the
hands of the [government],” as well as the “physical abuse .. . of
{Petitioner’s] family members” (see Pet. App. 11a), are precisely
the kind of circumstances that “establish prima facie eligibility
under CAT.” Kay v. Ashcroft, 387 F.3d 664, 675 (7th Cir. 2004);
see also Woldemichael v. Gonzales, 197 F. App’x 712, 714 (9th
Cir. 2006) (“[djetention, beatings, and threats of death by
[Ethiopian] government officials because of his Eritrean
heritage are sufficient to establish past persecution”).
16
has lived in the United States for more than two
decades, to remain here for a few extra months
pending appeal. Mohammed v. Reno, 309 F.3d 95,
102 (2d Cir. 2002). And a stay of removal also serves
the public good of ensuring that the United States
complies with its treaty obligations and does not
inappropriately send an alien to a regime in which he
will be tortured without ever giving that alien a
single opportunity to be heard on the merits of his
CAT claim. See Khouzam v. Hogan, 497 F. Supp. 2d
615, 627 (M.D. Pa. 2007).
Just as significantly, although Petitioner was
unable (to the circuit court’s satisfaction) to
demonstrate “by clear and convincing evidence” that
his removal is “prohibited as a matter of law,”
Petitioner nevertheless can also satisfy the fourth
element of the traditional standard by demonstrating
(as shown below) a high likelihood of success on the
merits of his petition for review. There is, of course,
nothing incongruous about this situation. As several
courts have recognized, aliens with meritorious
claims will often find it difficult to satisfy the
requirements of section 242(f)(2). See, eg. Hor,
400 F.3d at 483 (“[a]s a practical matter, removal is
‘prohibited by law’ only when the person is a citizen
of the United States or holds a visa of unquestioned
validity”); Arevalo, 344 F.3d at 8 (noting that section
242(f)(2) would “require the alien to carry a burden of
proof Aigher than she would have to carry on the
merits”). This is especially so in a case like this one,
in which the alien’s principal argument is that
equitable considerations require the tolling or
17
suspension of certain procedural bars to relief. Such
equitable relief excuses strict compliance with legal
requirements; by definition, then, removal in the face
of equitable considerations is not “prohibited as a
matter of law.”
Regarding his ltkelihoed of success on the merits,
first, Petitioner is likely to succeed on his argument
that the BIA should have granted the motion to
reopen because the Petitioner lacked notice of the
hearing that resulted in the in absentia order of
removal. Binding circuit precedent holds that the
Board should grant a motion to reopen a hearing that
resulted in an in absentia removal order if the alien
can prove that he did not receive notice of the
hearing. Nibagwire v. Gonzales, 450 F.3d 153, 156
(4th Cir. 2006) (citing 8 U.S.C. § 1229a(b)(5)(C)(ii));
see also Silva-Carvalho Lopes v. Mukasey, 517 F.3d
156, 158-60 (2d Cir. 2008) (collecting cases). Here, it
is undisputed that Petitioner did not receive actual
notice of the 2001 removal hearing that resulted in
the outstanding in absentia removal order: as the
Immigration Judge found, the notices of that hearing
“were returned to the [Immigration] Court by an
individual who appear|ed] to live at” Petitioner's St.
Michael’s Circle address and who told the
Immigration Court that “she [was] not able to
contact” Petitioner. Pet. App. 7a. This individual
was Petitioner's sister, and when the notice was
mailed, Petitioner had temporarily moved from her
home, Pet. App. 3a, as the result of a domestic
dispute. See Mot. Stay Removal at 3—4 & n.3.
18
Nor is there merit to the Board’s contention that
the motion to reopen should -be denied because
titioner failed to notify the immigration authorities
that he had moved from the St. Michael’s Circle
address. As the BIA noted, Petitioner’s departure
was “temporar[y],” and he “has .. . used [that
address} since that time,” including in connection
with his 2008 application for asylum. /d. While the
INA does require “the alien . . . [to] provide the
Attorney General immediately with a written record
of any change of the alien’s address,” INA
§ 239(a)(1)(F\(ii), 8 U.S.C. § 1229(a)(1)(F)Qi), this
provision does not require notice of temporary
absences due to domestic circumstances. See
Santiago v. Att’y Gen., 216 F. App’x 232, 233-34, 236
(3d Cir. 2007) (per curiam) (alien moved from address
of record to avoid spousal abuse).
Second, even if Petitioner’s temporary move
somehow constitutes a forfeiture of his right under
the INA to a reopening for lack of notice, Petitioner is
likely to succeed on the merits of his argument that
equitable considerations nevertheless require the
BIA to reopen his removal proceedings. Courts,
including the Fourth Circuit, have held that
procedural requirements in the immigration context
should give way where “it would be unconscionable to
enforce [those requirements] against the party and
gross injustice would result.” Amegashie v. Gonzales,
188 F. App’x 226, 227 (4th Cir. 2006) (per curiam)
(internal quotation marks omitted); see also Davies v.
INS, 10 F. App’x 223, 224 (4th Cir. 2001) (per curiam)
19
(holding procedural requirements equitably tolled
given facts and circumstances of case).
As Petitioner argued in his motion for a stay,
numerous considerations warrant equitable relief
from the Act’s procedural requirements in this case.
Among these are Petitioner’s prior pro se status, see,
e.g., LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206,
209 (2d Cir. 2001); Sembiring v. Gonzales, 499 F.3d
981, 990 (9th Cir. 2007); the fact that Petitioner
diligentiy attempted to comply with the immigration
laws but was thwarted in his efforts to have his case
heard by the immigration court’s several errors
(supra pp. 4-5) and by his sister (supra p. 5), see, e.z.,
Alrefae v. Chertoff, 471 F.3d 353, 360 (2d Cir. 2006);
Tairova v. Gonzales, 207 F. App’x 886, 887 (9th Cir.
2006); and the fact that Petitioner has never had a
hearing on the merits of his claims even though, as
discussed above, his uncontested declaration
establishes a likelihood of torture should he be
returned to Ethiopia. Given these circumstances,
Petitioner is likely to convince the reviewing court
that the decision to remove him to Ethiopia without a
hearing would be “unconscionable” and a “gross
injustice,” Amegashie, 188 F. App’x at 227, and
therefore to exercise its equity jurisdiction to require
the BIA to excuse any procedural bars that might
stand in the way of Petitioner’s motion to reopen.
Third, these same equitable considerations also
entitle Petitioner to a reopening of his removal
proceedings pursuant to section 240(b)(5)(C)(i) of the
INA, 8 U.S.C. § 1229a(b)(5)(C)(i), which provides for
20
reopening “if the alien demonstrates that the failure
to appear was because of exceptional circumstances.”
The circumstances described above, all of which were
“beyond the control of’ Petitioner, INA § 240(e)(1),
8 U.S.C. § 1229a(e)(1), certainly qualify «as
exceptional. Moreover, although the INA requires a
motion under this subsection to be filed within 180
days after the date of the order of removal, that
procedural requirement, too, is subject to equitable
tolling. See Amegashie, 188 F. App’x at 227 (citing
cases); Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.
2005). The 180-day time limit should be equitably
tolled here for all of the reasons discussed above, and
also because Petitioner did not learn about the 2001
in absentia order until after he filed the instant
motion to reopen. See Mot. Stay Removal! at 4 n.3.
In sum, it is likely that Petitioner would have
prevailed below in his motion for a stay under the
traditional criteria by demonstrating a likelihood of
success on the merits of his petition for review,
irreparable harm if the stay were not granted, and a
‘balance of equities tilting strongly in his favor. The
Fourth Circuit’s selection of the more demanding
standard therefore likely changed the outcome below.
As a result, this case is a purticularly appropriate
vehicle for resolving the question presented.
UI. RESOLUTION OF THE QUESTION
PRESENTED REQUIRES REVIEW OF AN
INTERLOCUTORY ORDER
Although this Court does not regularly grant
certiorari to review interlocutory orders of the courts
21
_ of appeals, it plainly has jurisdiction to do so. See
28 U.S.C. §§ 1254(1) & 2101(e). Moreover, this is the
unusual case in which such review is warranted. The
very issue on which the circuits are split is the
standard for issuing that interlocutory order. And if
certiorari is not granted prior to judgment on the
merits by the court of appeals, that issue will evade
review by this Court. In every case, once a court of
appeals renders judgment on the underlying merits
of a petition for review, the question whether the
alien was entitled to an interim stay pending that
decision will have become moot.
This case is therefore identical in all relevant
respects to Barefoot v. Estelle, 463 U.S. 880 (1983).
In Barefoot, the court of appeals denied a stay of
execution pending its review of the merits of the
habeas petitioner’s appeal. The denial of the stay
itself raised substantial legal questions requiring this
Court’s review. See id. at 888-96. Accordingly, the
Court treated the petitioner’s application for a stay as
a petition for a writ of certiorari before judgment, and
granted certiorari to review “the appropriate
standard for granting or denying a stay of execution
pending disposition of an appeal by a federal court of
appeals.” Jd. at 887.2 Similarly, 11 United Auto
Workers v. Scofield, this Court granted certiorari to
2 In Barefoot, the Court simultaneously granted certiorari
before judgment on the underlying merits of the petitioner's
habeas petition. Petitioner here does not seek this Court's
_ review of the merits of the BIA’s ruling because the court of
appeals is best positioned to consider those merits issues in the
first instance.
22
review the standard governing the issuance by the
court of appeals of an interlocutory order (the denial
of a motion to intervene) and stayed further
proceedings in the court of appeals until this Court’s
completion of that review. See UAW, Local 283 v.
Scofield, 382 U.S. 205, 207 (1965).
In sum, where, as in Barefoot, Scofield, and this
case, the standard governing the issuance by the
courts of appeals of a class of interlocutory orders is
the very question at issue, the Court must, if it is to
review the question at all, grant certiorari before the
case proceeds to judgment on the merits in the court
of appeals.
IV. THE COURT BELOW APPLIED THE
INCORRECT STANDARD
For several reasons, the Fourth Circuit erred below
in interpreting section 242(f)(2) tc apply to an alien’s
motion for a stay of removal pending merits review of
an order of the BIA.
First, both history and common usage establish a
difference between injunctions, which are expressly
governed by section 242(f), and stays of judicial or
quasi-judicial proceedings. As Judge Easterbrook
has explained, the two concepts “cover different
domains”:
An “injunction” is an order issued as the relief in
independent litigation, while a “stay” is an order
integral to a system of judicial review: an appellate
court may stay a district judge’s order, or its own
mandate, or an agency's decision when the agency
23
plays the role of the district court and the initial
judicial tribunal is a court of appeals.
Hor, 400 F.3d at 484; accord Tesfamichael, 411 F.3d
at 173 (“history and usage counsel that the two words
carry: different legal meanings”). “Treating a rule
addressed to ‘injunctions’ as covering ‘stays,” Judge
Easterbrook concluded, “would impoverish the
language and make the legislative task more
difficult. Our legal vocabulary contains distinct
words for distinctive judicial actions. Keeping them
separate makes it easy to address one, both, or
neither... .” Hor, 400 F.3d at 484. Indeed, this
Court has held in another context that “[a]n order by
a federal court that relates. only to the conduct or
progress of litigation before that court ordinarily is
not considered an injunction.” Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988).
The procedure employed by courts in connection
with the issuance of stays of removal supports this
interpretation. As Judge Michael noted:
If [the circuit court] had agreed to the petitioner’s
request, a simple stay would have done the job. It
would not have been necessary for [the court] tc
enjoin or restrain the Attorney General of the
United States (the named respondent)
individually. To turn a stay into an injunction in
these circumstances is overkill, and it depreciates
the traditional force of a simple stay, which
assumes automatic respect for our orders without
the need for formal restraint or prohibition of
individual parties.
24
Teshome-Gebreegziabher, 2008 WL 4741721, at *6
(Michael, J., dissenting}; accord Andreiu,. 253 F.3d at
483 (“injunctions run against parties; stays run
against courts and judgments’).
The distinction between stays and injunctions is
recognized in the very provisions governing the
issuance of stays by the courts of appeals. Rule 8 of
the Federal Rules of Appellate Procedure, entitled
“Stay or Injunction Pending Appeal,” recognizes a
“stay” and an “injunction” as two separate and
distinct legal orders, with the “stay” acting upon “the
judgment or order of a district court pending appeal.”
Fed. R. App. P. 8(a)(1)(A) & (C). And Rule 18, which
applies to petitions for review of agency decisions,
characterizes an order from the circuit court —
restraining enforcement of an agency decision or
order as a “stay.” Fed. R. App. P. 18. “It is
noteworthy,” in other words, “that rule 18 nowhere
uses the word ‘enjoin’ or ‘injunction’ but maintains
the linguistic distinction [recognized in Rule 8] by
discussing ‘stays——a peculiar procedural medium.”
Tesfamichael, 411 F.3d at 174.
The structure and language of the IIRIRA confirms
this understanding. For one thing, stays pending
appellate review are specifically addressed in section
242(b)(3)(B) of the INA, 8 U.S.C. § 1252(b)(3)(B),
which abrogates the pre-IIRIRA rule that such stays
were, in most cases, automatic. “This provision,
consequently, would have been the natural place to
locate an amendment to the operative standard
governing their issuance, but no such standard is
25
found {there].” Tesfamichael, 411 F.3d at 174. This
silence is “deafening.” Jd.; see also Andretu, 253 F.3d
at 481 (“[i]t would be quite strange to announce the
abolition of automatic stay orders in [one provision],
but announce the replacement standards in
[another]”). “{I]f Congress had wanted to break from
the routine of the past and apply a heightened
standard to stays pending appeal, it most likely
would have included such a standard in INA
§ 242(b)(3) itself.” Arevalo, 344 F.3d at 8. Indeed, if
Congress had truly intended that a court could issue
a stay only upon a showing that the order was
“prohibited as a matter of law,” there would have
been “no need” to state in section 242(b)(3)(B) that
stays are not automatic. Tesfamichael, 411 F.3d at
175-76 (internal quotation marks omitted); accord
Andreiu, 253 F.3d at 481 (noting that if section
242(f)(2) has the effect.the government claims, then
“all of [section 242(b)(3)(B)] would be reduced to
surplusage’”).
In addition, subsection (f)(1) refers to the authority
of courts, in the class-action and pre-enforcement
contexts, “to enjoin or restrain” the operation of the
immigration laws. Subsection (f)(2), by contrast, uses
only the term “enjoin,” thus evincing a congressional
recognition that injunctions do not include the entire
universe of judicial restraints. “[T]his linguistic shift
makes it appear likely that Congress intended the
words ‘enjoin’ and ‘restrain’ to have different
meanings,” for otherwise “the use of the word
‘restrain’ in subsection (f)(1) would be pointless.”
Arevalo, 344 F.3d at 7; see also Hor, 400 F.3d at 485
- 26
(“Title 8 as a whole refers to ‘stay’ 14 times .. . and
‘enjoin’ or ‘injunction’ a total of 7 times; these words
are n° treated as coterminous in any provision.”). -
Cong 3s would have understood that “the word
‘enjoin ... refer[s] to permanent injunctions and the
word ‘restrain’. . . refer[s] to temporary injunctive
relief (such as a stay),” a distinction found in the
Hobbs Act, 28 U.S.C. § 2349(a) & (b), which is
expressly incorporated in the INA. Areva/o, 344 F.3d
at 7 (citing INA § 242(a)(1)).
The practical consequences of applying section
242(f) to temporary stays pending review also counsel
against doing so. As several circuits have recognized,
“the adoption of the standard [set forth in section
242(f)} weuld render stays of deportation almost
impossible to obtain.” Tesfamichael, 411 F.3d at 173;
accord Hor, 400 F.3d at 483. Whether or not this is
an “absurd result{],” Andrezu, 253 F.3d at 482, it is at
least a peculiar one. It would, for example, “require
full-scale briefing at the beginning of the appellate
process, often before the petitioner has even received
a copy of the administrative record.” Jd. at 482. As
Judge Selya observed, applying section 242(f) to stays
would prematurely “necessitate full deliberation on
the merits of the underlying case and, in the bargain,
require the alien to carry a burden of proof Aigher
than she would have to carry on the merits.”
Arevalo, 344 F.3d at 8. The inevitable result would
be “the removal of some aliens with meritorious
claims against removal.” Mohammed, 309 F.3d at
100.
27
For all of these reasons, section 242(f)(2) is
inapplicable to requests for stays pending judicial
review of BIA orders. Accordingly, the court below
applied the incorrect standard to Petitioner’s motion
for a stay.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
DONALD B. AYER CHRISTIAN G. VERGONIS
SAMUEL ESTREICHER Counsel of Record
MEIR FEDER LAURA TUELL PARCHER
NYU LAW SCHOOL JULIET JOHNSON KARASTELEV
SUPREME COURT CLINIC JONES DAY
40 Washington Sq. 51 Louisiana Avenue, N.W.
South Washington, DC 20001
New York, NY 10012 (202) 879-3939
(212) 998-6226 ;
November 21, 2008 Counsel for Petitioner
APPENDIX
la
FILED: November 12, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2118
(A0206-809-010)
SOLOMON DEBESSAY TESFAGABEFR,
Petitioner
v. a
MICHAEL B. MUKASEY, Attorney General.
Respondent
ORDER
Upon review of submissions relative to the motion
for stay pending appeal, the Court denies the motion.
Entered at the direction of Judge Shedd with the
concurrence of Chief Judge Williams and Judge
Michael.
For the Court
/s/ Patricia S. Connor, Clerk
2a
U.S. Department of Decision of the Board of
Justice Immigration Appeals
Executive Office for
Immigration Review
Falls Church, Virginia
22041
File: A026-809-010 — Baltimore, MD Date: 10/1/08
In Re: TESFAGABER, SOLOMON DEBESSAY
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:
Parcher, Laura Tuell, Esquire
ORDER:
PER CURIAM. The respondent has appealed from
the Immigration Judge’s decision dated June 30,
2068. Im tmat decision, an Immigration Judge denied
tae respondent’s motion to reopen and stay removal,
because the respondent had not provided evidence
that he received inadequate notice of the June 13,
2001 hearing, which the respondent failed to attend
and which, accordingly, resulted in an in absentia
order of removal. As background, we note that the
respondent previously was ordered removed in
absentia on December 12, 1999. In a March 22, 2001,
order, we sustained the respondent’s appeal of the
Immigration Judge’s denial of his motion to reopen,
reopened proceedings, and remanded the record. On
remand, despite the proper service in March 2001 by
regular mail of a hearing notice to the respondent’s
last address of record on St. Michael’s Circle in
Odenton, Maryland, the respondent claims that he
did not receive the notice because he was not living
3a
there at the time the notice was sent. He argues he
only became aware of the June 2001 in absentia
order against him in 2007 when he was apprehended
by the Department of Homeland Security. See
Motion to Reopen at Exh. B. Although there is
evidence in the record to support the fact that when
the hearing notice was sent, the respondent
temporarily was not living at the St. Michael’s Circle
address, there is no contention that the respondent
notified the DHS or the Immigration Court of a new
sedress, as required under the terms of the Notice to
Appear. We also note that despite the contention
that the respondent was not living on St. Michael’s _
Circle in Odenton at the time of the June 2001
hearing, this address was used prior to that time in
the respondent’s pro se filings on appeal and has
been used since that time in his current (March 2008),
Application for Asylum. See Motion to Reopen at
Exh. D. Because the respondent does not claim that
he filed a proper notice of a new address (despite the
fact that the respondent’s prior in absentia order of
removal rendered him keenly aware of the dire
consequences of failing to appear), the Immigration
Judge’s denial of the motion to reopen was proper.
Accordingly, the appeal is dismissed.
/s/
FOR THE BOARD
4a
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION
REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND
IN THE MATTER OF: -
TESFAGABER, Solomon )
RESPONDENT
IN REMOVAL PROCEEDINGS)
File #: A26-809-010
CHARGE: INA § 237(a)(2)(A)(iii), as amend-
ed, in that, at any time after
admission, the Respondent has
been convicted of an aggravated
felony as defined in Section
101(a)(43)(B) of the Act, an
offense relating to the illicit
trafficking in a_ controlled
substance, as described in section
102 of the Controlled Substances
Act, including a drug trafficking
crime, as defined in section 924(c)
of Title 18, United States Code.
INA § 237(a)(2)(B)(i), as amended,
in that, at any time after ad-
mission, the Respondent was
convicted of a violation of (or a
conspiracy or attempt to violate)
APPLICATION:
ON BEHALF OF
RESPONDENT:
5a
any law or regulation of a State,
the United States, or a foreign
country relating to a controlled
substance (as defined in Section
102 of the Controlled Substances
Act, 21 U.S.C. 802), other than a
single offense involving
possession for one’s own use of 30
grams or less of marijuana.
Motion to Reopen and Stay
Deportation
APPEARANCES
ON BEHALF OF THE
DHS: |
Laura T. Parcher, Esq. Brian M. Fish, Esq.
Jones Day
Assistant Chief Counsel
51 Louisiana Ave. NW 31 Hopkins Plaza,
Washington DC 20001 7th’ Floor
Baltimore, MD 21201
6a
DECISION AND ER ON RESPONDENT'S
MOTION TO REOPEN AND MOTION TO on ‘AY
DEPORTATION
I. PROCEDURAL HISTORY
Respondent is a native and citizen of Ethiopia. He
was admitted to the United States on September 26,
1986. In 1999, Respondent was served with a Notice
to Appear (“NTA”). The NTA _ alleges that:
(1) Respondent is not a native or citizen of the United
States; (2) Respondent is a native of Ethiopia and a
citizen of Ethiopia; (3) Respondent was admitted to
the United States at New York, Now York on or
about September 26, 1986 as a refugee; (4) On
October 13, 1993, his status was adjusted to that of a
lawful permanent resident as of September 26, 1986;
(5) He was, on April 21, 1995, convicted in the Circuit
Court for Howard County, Maryland for the offense of
Possession of Cocaine, a controlled substance, in
violation of Article 27, Section 287 of the Annotated
Code of Maryland; and (6) He was, on September 21,
1995, convicted in the Circuit Court for Prince
George’s County, Maryland, for the offense of
Conspiracy to Possess Cocaine with Intent to
Distribute, in violation of the Common Law of
Maryland. As such, Respondent was charged with
removability pursuant to INA § 237(a)(2)(A)(@ii) and
INA § 237(a)(2)(B)()).
In a decision dated December 12, 1999, this Court
ordered Respondent removed for failing to timely
appear at a hearing on December 1, 1999.
Respondent appealed, asking the Board of
Immigration Appeals (“BIA”) to rescind the in
absentia order of removal. He claimed that he was
present in the courtroom and did not hear his case
Ja
being called. On March 22, 2001, the BIA ordered
the record reopened and remanded the case to this
Court based on evidence submitted by Respondent.
On March 28, 2001, Respondent was mailed
notification that a Master Calendar hearing was
scheduled for June 13,.2001. These notices were
returned to the Court by an individual who appears
to live at Respondent’s former address. She notified
the Court that he no longer lives at that address, and
that she is not able to contact him. On June 13, 2001,
Respondent failed to appear at the scheduled hearing
and was again ordered removed in absentia.
Respondent was taken into ‘custody’ by
Immigration and Customs Enforcement on August 2,
2007. In March 2008, Responded filed a Motion to
Reopen, which was rejected by this Court for failing
to comply with several Local Operating Procedures.
On June 12, 2008, Respondent filed an additional
Emergency Motion to Reopen and Motion to Stay
Deportation with this Court, as well a Form I-589
Application for Asylum and Withholding of Removal.
Respondent’s Motions also indicate that he is seeking
protection under the United Nations Convention
Against Torture (“CAT”). On June 24, 2008, the
Department of Homeland Security (“DHS”) filed its
Opposition to Respondent’s Motions.
The Court has considered these documents, as well
as all evidence submitted by both parties. The Court’s
decision and order now follow.
Il. DOCUMENTARY EVIDENCE PRESENTED
Emergency Motion to Reopen and Motion to Stay
Deportation
A. Declaration of Respondent
8a
Form 1-589, Application for Asylum and
Withholding of Removal
Motion to Reopen, Returned April 8, 2008
Department of State Country Report on Ethiopia
Department of State Country Report on Eritrea
Central Intelligence Agency World Fact Book:
Eritrea
News Articles on the Ethiopian-Eritrean Con “ict
. Statements of Respondent
Reports, Circuit Court of Maryland
Application for a Stay of Deportation or Removal
Case law
. STATEMENT OF LAW AND FINDINGS OF
THE COURT
The Court has considered the entire record
carefully, and all of the evidence has been considered,
even if not specifically discussed further in this
decision. For the reasons set forth below, the Court
shall deny Respondent’s Emergency Motion to
Reopen and Motion to Stay Deportation.
Generally, only one motion to reopen may be filed
before the Immigration Court and such motion must
be tiled within 90 days of the entry of a final
administrative order of removal, deportation, or
exclusion. 8 C.F.R. § 1003.23(b)(1). The motion must
state new facts that will be proven at a hearing if the
motion is granted, and it must be supported by
affidavits and other evidentiary material. 8 C.F.R.
§ 1003.23(b)(3). A motion to reopen will not be
granted unless the Immigration Judge is satisfied
that the evidence offered is material and was not
available and could not have been discovered or
presented at the former hearing. /d.; see also Zhao v.
U.S. Dept. of Justice, 265 F.3d 83 (2d Cir. 2001)
HASH ro smo oD
9a
(stating that a motion to reopen must be supported
by new evidence; a. motion that is based upon an
error of law or fact in the original decision is treated
as a motion to reconsider). Additionally, any motion
to reopen for the purpose of applying for relief from
removal, deportation, or exclusion must be accom-
panied by the appropriate application for relief and
all supporting documents. /d. Finally, the Immi-
gration Judge has discretion to deny a motion to
reopen even if the moving party demonstrates prima
facie eligibility for relief. Jd.
Respondent’s Emergency Motion to Reopen and
Motion to Stay Deportation is denied for the following
reasons. First, Respondent was already granted the
opportunity to renew his case before this Court by the
BIA, following the first in absentia removal order.
However, Respondent again failed to appear before
the Court on June 13, 2001. Respondent also failed
to comply with his obligation to notify the Court of
any change in address, though he was informed of
this obligation in the 1999 NTA. See 8 C.F.R.
§ 1003.15(d)(2). There is no notice issue in this case.
The Court mailed the hearing notice to the address
Respondent used in his appeal to the BIA.
The Court has also considered Respondent’s
applications for . Withholding of Removal and
protection under the CAT, and_= supporting
documentation. Respondent has been present in the
United Slates since 1986, and has had ample
opportunity to present these claims. The Court notes
that 7 years passed between the issuance of the NTA
and the present Motions, during which time
Respondent never came forward with the alleged
claims for relief. Furthermore, Respondent presented
10a
no independent evidence of past persecution or
torture in either Ethiopia or Eritrea, nor has he
presented any evidence supporting a claim that he is
likely to be persecuted or tortured in either country
in the future. The Court recognizes that human
fights conditions in Ethiopia and Eritrea are
generally poor. See Exhibits D and E. However,
Respondent has not demonstrated prima facie
eligibility for relief. Finally, the aggravated felony
drug crimes Respondent was convicted of in 1999
preclude the Court from granting him either asylum
or withholding of removal, and limit the availability
of relief under CAT.2 INA § 208(b)(2)(A)(ii); 8 C.F.R
1208.13(c)(1); INA § 241(b)(8)(B) (ii).
For the aforementioned reasons, Respondent’s
Emergency Motion to Reopen and Motion to Stay
Deportation is denied.
Il. ORDER
It is hereby ordered that Respondent’s Emergency
Motion to Reopen and Motion to Stay Deportation is
DENIED.
June 30, 2008 /s/ Bruce M. Barrett
Date Bruce M. Barrett
United States Immigration Judge
Baltimore, Maryland
2 An alien who is barred from withholding under CAT but who
demonstrates that he is entitled to protection under CAT shall
be ordered removed, but his removal shall be deferred until such
time as the deferral is terminated under 8 C.F.R. § 1208.17.
lla
DECLARATION OF SOLOMON TESFAGABER
I, Solomon Tesfagaber, state as follows:
_1. JI was born on July 27, 1965 in Asmara, Eritrea in
Ethiopia.
2. I am currently being detained at the Howard
County Detention Center in Jessup Maryland.
3. I first arrived in the United States in September,
1986. I was a refugee and I arrived through
Greece. Due to the emergency nature of my _
escape from Ethiopia and Eritrea, I do not have a
valid passport. Shortly after my arrival I
adjusted my status to that of a Legal Permanent
Resident.
4. I fled Ethiopia because I had suffered persecution
at the hands of the government and I feared
future persecution. The persecution I suffered
was on account of my Eritrean ethnicity and my
actual and imputed political opinions.
5. My father was politically active and supported
Eritrean independence. He was detained
numerous times and suffered physical harm at
the hands of the Ethiopian government because
he was Eritrean and because of his political
opinions and actions.
6. My five siblings that also fled Ethiopia were also
detained numerous’ times’ and __— suffered
persecution because they are Eritrean and
because of their actual and imputed political
opinions. All five of my siblings escaped from
Ethiopia and have asylum or a similar status.
One lives in the U.S., one in Italy and the rest in
Canada.
10.
12a
While in Ethiopia and Eritrea I personally
suffered much persecution at the hands of the
Ethiopian government. I was repeatedly targeted
and detained because I am Eritrean and because
I supported Eritrean independence.
On two occasions I was detained for long periods
of time and beaten severely. On the first occasion
I was arrested. for refusing to participate in
political activities supporting the Ethiopian
government. On that occasion I was whipped so
badly that I required hospitalization. On the
second occasion I was detained solely because I
was Eritrean. The Ethiopian government had
just suffered a defeat by the Eritrean forces and
came to my town and rounded up Eritreans to
punish them. I was one of many. I was held for
approximately 14 days in a tiny cell with no bed
or room to lay down. I was beaten severely with
a stick until I lost consciousness. My mother
brought me food every morning because there
was no food in the jail. When I was released I
could barely move for weeks and required
medical treatment.
On another occasion I tried to escape Ethiopia
and was shot at by military personnel. I feared
for my life and considered myself lucky that I was
not shot. I fell to the ground and was detained
and questioned.
When I was approximately 17, I was forced to
join the Ethiopian army. I did not want to join.
But I was not given a choice. I was sent for
training to prepare to fight in Ethiopia’s defense.
I did not want to fight. So I escaped out of
Ethiopia to Greece. I was in Greece as a refugee
11.
12.
13.
14.
15.
13a
for just over two years before I was finally —
admitted to the United States.
When I arrived in the United States I was
suffering from the torture, persecution, threats
and harassment I suffered in Ethiopia. I later
sought treatment for post traumatic stress
disorder because of the trauma I experienced in
Ethiopia.
While in the United States I have attended
college and worked a steady job. I have paid
taxes on a timely basis. [I also spend time with
my sister and her family who live in Maryland.
For extended periods of time I have assisted in
taking care of my sister’s children. I attend
church on a regular basis. I have worked hard to
be a contributing member to society.
In 1995 I was associated with a woman who was
using drugs and associated with others who were
buying and selling drugs. I have never used
drugs and I never participated in the purchase or
sale of drugs. On one occasion I was with her
when she attempted to sell drugs. She tried to
get me to participate, but I refused.
One of the persons she was trying to deal with
was an undercover police officer. I was arrested
at this time and charged with drug offenses. The
police officer pushed me to cooperate and assist
with his undercover operation. I tried to help,
but ultimately was too afraid of the consequences.
In 1995 1 went to court regarding criminal
charges having to do with conspiracy to
distribute cocaine. My public defender convinced
me to accept an Alford Plea, and told me I would
16.
17.
18.
19.
20.
l4a
not be pleading guilty. The result was I was
released from jail. |
I later learned that even though I did not plead
guilty, I was convicted of a felony and sentenced
to three years. But the judge suspended all but
the time I had already served, which was 139
days.
Because of this criminal conviction, the
immigration service began deportation
proceedings against me in approximately June of
1999. In December of 1999 I attended a hearing
on my deportation case. I was present in the
court room on the correct day, but I did not hear
my case called. After the judge adjourned for the
day I asked him about my case. He told me he
had ordered me removed in abstentia.
The judge then told me I could file a motion to
reopen my case. I talked to the Judge’s clerk and
she directed me to the court clerk. I then went
straight to the court clerk. She assisted me in
writing up a motion to reopen. She accepted
what I completed and stamped it. She gave me a
copy and I provided it to the Judge’s clerk. I
thought I had successfully filed my motion.
I learned later that the Court denied my motion
because I had not properly served the
government’s lawyer. I thought by giving it to
the Judge’s clerk I had done that.
I went back in April of 2000 and tried to properly
re-file my application with copies for the court
and the government. The clerk of the court told
me that I could not file another application. That
I am only permitted to file one.
21.
22.
l5a
I was picked up again by ICE on approximately
August 2, 2007 and have been in detention ever
since. In March of 2008 I attempted to file
another motion to reopen accompanied by an I-
589 seeking relief under the Convention Against
Torture and seeking Withholding of Removal.
This filing was sent back for procedural defects.
I am very afraid that I will be tortured and
persecuted if forced to return to Ethiopia. I am
not Ethiopian, I am Eritrean. I am afraid that if
forced to return to Ethiopia, the government will
- torture and persecute me both because I am
23.
Eritrean and because of my history of supporting
Eritrean independence.
I am also afraid of being returned to Eritrea. I
left and have never returned since I was 17. I
have not registered with the independent
government and I have not paid the 2% required
tax. I did not anticipate ever returning to Eritrea.
I declare under penalty of perjury under the laws of
the United States of America that the lien is
true and correct.
Executed: June 10, 2008 /s/ Solomon Tesfagaber
Solomon Tesfagaber
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.