Opinion
Civil Action No. SA-04-CA-0862-XR.
November 1, 2004
ORDER
On this date the Court considered Petitioner's Expedited Motion for Stay or to Restore or Grant an Injunction to Prevent Deportation Pending Appeal and Motion for Release on Bond. The government has filed an opposition to this motion. Petitioner's petition for review is currently pending in the United States Court of Appeals for the Fifth Circuit, filed October 4, 2004, in which he claims ineffective assistance of counsel. A motion to stay deportation proceedings also is pending before the Fifth Circuit. The government filed a notice of intent to deport with the Fifth Circuit on October 15, stating that it is awaiting the Court's decision on the motion to stay to determine whether or not to proceed with removal. On October 12, 2004, this Court dismissed Petitioner's habeas application for lack of jurisdiction, due to the fact that the application raised the same issues as the pending petition for review. Petitioner appealed this ruling to the Fifth Circuit on October 20. Petitioner has now returned to this Court seeking a stay of deportation, pending the determinations of his petition for review and appeal.
The government asserts that the clear and convincing standard of 8 U.S.C. § 1252(f)(2) applies to Petitioner's motion to stay pending appeal. The government cites Weng v. U.S. Att'y Gen., 287 F.3d 1335 (11th Cir. 2002) for this proposition. The Fifth Circuit has not addressed what standard applies to a motion to stay deportation pending appeal of the deportation decision. However, the majority of courts to decide this issue have found that the standard that applies to motions to stay in general, typically likelihood of success, rather than the clear and convincing evidence standard of § 1252(f)(2) applies to these motions. Specifically, the First, Second, Third, Sixth, and Ninth Circuits, as well as a table decision of the Seventh Circuit, have all held that the general standard applies. Only the Eleventh Circuit has specifically held that the clear and convincing evidence standard applies. The only Texas District Court to take up this issue, Periz v. Harrington, No. 3:98-CV-2309-D, 1999 WL 20832 (N.D. Tex. Jan. 13, 1999), decided sua sponte that the § 1252(f)(2) standard applied, but did not have the benefit of the subsequent circuit decisions to inform its decision. Other district courts have decided that the general standard should apply, see, e.g., Kanivets v. Riley, 286 F. Supp.2d 460, 464 (E.D. Pa. 2003).
See Arnold v. Garlock, Inc., 278 F.3d 426, 438-49 (5th Cir. 2001) (noting four-part inquiry focusing on likelihood of success); In re First S. Sav. Assoc., 820 F.2d 700, 704 (5 th Cir. 1987) ("[The appellant] need not always show a `probability' of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weigh heavily in favor of granting the stay.") (quotation omitted).
Arevelo v. Ashcroft, 344 F.3d 1, 7-8 (1st Cir. 2003).
Mohammed v. Reno, 309 F.3d 95, 100 (2nd Cir. 2002).
Douglas v. Ashcroft, 374 F.3d 230, 234 (3rd Cir. 2004).
Bejjani v. INS, 271 F.3d 670, 688-89 (6th Cir. 2001).
Andreiu v. Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001) (en banc).
Lal v. Reno, 221 F.3d 1338, 2000 WL 831801, at *1 (7th Cir. 2000) (Table).
The Court finds that it need not decide what standard to apply to Petitioner's motion because Petitioner has the exact same motion pending before the Fifth Circuit in conjunction with his petition for review. As this Court noted in its October 12 Order dismissing Petitioner's habeas application, Petitioner is engaged in a form of forum shopping, attempting to find the first court that will rule in his favor. While the government has not mentioned this fact in its opposition to the current motion, it has filed a notice in the Fifth Circuit of its intention to await that Court's decision as to the pending motion to stay deportation proceedings. The Court accepts the government's position that it will await the Fifth Circuit's decision before finalizing deportation proceedings. Accordingly, the Court finds that Petitioner's motion should be DENIED (docket no. 14).