Idokogi v. Ashcroft

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 21, 2003
• Docket: 02-30553
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 18, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-30553 Summary Calendar

DUNCAN VICTOR AYEMERE IDOKOGI,

Petitioner-Appellant,

versus

JOHN ASHCROFT; KEVIN D. ROONEY; EDWARD J. MCELROY; BENEDICT FERRO; CARYL G. THOMPSON; U.S. DEPT. OF JUSTICE,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 02-CV-205 --------------------

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Duncan Victor Ayemere Idokogi, a Nigerian citizen who is a

permanent resident of the United States, appeals the district

court’s order lifting the stay of his removal. Idokogi argues

that he is not an aggravated felon. He argues that the denial of

a stay is an unconstitutional violation of his due-process rights

and that permanent exile from this country and separation from

his family is irreparable injury.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-30553 -2-

Appeal from an order dissolving an injunction is governed by

28 U.S.C. § 1292(a)(1). “[T]he first question . . . is whether

the order appealed from specifically denied an injunction

(whether permanent or preliminary), or merely had the practical

effect of doing so.” E.E.O.C. v. Kerrville Bus Co., Inc., 925

F.2d 129, 131 (5th Cir. 1991). If the order specifically denied

an injunction, “that order is appealable as of right, right

away.” Id. at 132.

We have noted that a request for a judicial stay of

deportation is akin to and should be treated as a request for an

injunction. See Ignacio v. INS, 955 F.2d 295, 299 n.5 (5th Cir.

1992)). In Idokogi’s petition, Idokogi requested an order

enjoining the Government from deporting him until a full hearing

on the merits of his claim was had. By lifting the previous

grant of the request for a stay, the district court’s order

specifically denies this request. Therefore, we have

jurisdiction over Idokogi’s appeal from the district court’s

decision to lift the stay of the removal order.

We review an order denying an injunction for abuse of

discretion. See Regions Bank v. Rivet, 224 F.3d 483, 488 (5th

Cir. 2000); Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.

1991). The relief sought by Idokogi in the district court is

connected “directly and immediately” with the Attorney General’s

decision to commence removal proceedings against him. See

Humphries v. Various Federal USINS Employees, 164 F.3d 936, 943 No. 02-30553 -3-

(5th Cir. 1999). The district court therefore correctly

determined that it lacked jurisdiction to stay the order of

removal. See 8 U.S.C. § 1252(g); Reno v. American-Arab

Anti-Discrimination Comm., 525 U.S. 471, 482 (1999).

Accordingly, the district court did not abuse its discretion in

ordering the stay lifted. The district court’s order is

AFFIRMED.