Mercedes DE LEON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

115 F.3d 643, 97 Cal. Daily Op. Serv. 3847, 97 Daily Journal DAR 6558, 1997 U.S. App. LEXIS 12010

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 1997
• Docket: 97-70127
• Status: Published

Opinion

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 See 8 U.S.C. § 1105a(a)(3), repealed by IIRIRA § 306(b).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.RApp.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 deportation will be presented to the next available motions panel after receipt of respondent’s opposition or notice of non-opposition. In the event respondent’s opposition contains a motion to dismiss the petition, both motions will be presented to the next available motions panel.

Accordingly, Petitioner De Leon’s deportation is temporarily stayed pending this court’s decision on the merits of her motion for a stay of deportation.