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February 23, 2004.

DEBORAH ACHIM, Field Operations Interim Director, United States Department of Homeland Security, Immigration and Customs Enforcement; TOM RIDGE, a Secretary of the Department of Homeland Security, Respondents

The opinion of the court was delivered by: JOHN W. DARRAH, District Judge


Petitioner, Antonio Ramirez-Vicario, filed a Petition for Habeas Corpus and an Emergency Motion to Stay Deportation after he was detained by the United States Immigration and Customs Enforcement ("ICE"). Pursuant to an Immigration Judge's order from January 4, 1995, the ICE intends to deport Vicario to Mexico. On January 15, 2004, Vicario's Emergency Motion to Stay Deportation was granted. Respondents seek to have the stay vacated.

The following facts, for purposes of this motion, are found in the pleadings, affidavits, and attachments. Vicario is an immigrant from Mexico. In 1992, at the age of 15, Vicario entered the United States without inspection. In 1994, he was placed into deportation proceedings. Vicario was initially ordered deported; but, through an attorney, he succeeded in reopening those proceedings in 1995. Instead of an Order of Deportation, Vicario obtained permission to depart voluntarily from the United States under an Order of Voluntary Departure. The Order of Voluntary Departure was entered in lieu of an Order of Deportation. Pursuant to regulation, the Order of Voluntary Departure would automatically convert to an Order of Deportation if Vicario failed to depart on or before Page 2 January 15, 1995.

  On January 5, 1995, Vicario traveled by airplane to Mexico via Mexico Airlines. When Vicario departed the United States, he handed a sheet of paper intended to confirm his departure to Mexican immigration officials rather than taking the confirmation to a United States embassy or consulate. Approximately three weeks after departing the United States, Vicario unlawfully reentered the United States.

  In 1997, unaware that Vicario had departed the United States, the INS issued a Warrant of Deportation based on the Immigration Judge's January 4, 1995 order.

  In 1998, Vicario married Emma Beltran, a lawful permanent resident of the United States. Emma became a United States citizen in February 2000. Vicario and Emma have two children, ages three and one month.

  In 2000, Emma filed an immigration visa petition on Vicario's behalf. Vicario then filed an application for permanent residency in the United States pursuant to 8 U.S.C. § 1255(i), which permits individuals who entered the country unlawfully — but are otherwise eligible for resident status — to obtain resident status upon payment of a $1,000 penalty. This application was denied on January 16, 2004.

  In January 2004, Vicario was stopped by the Waukegan police for driving with his license plate obstructed by snow. The police officer ran a national Crime Information Center check which indicated that Vicario had an outstanding warrant or charge related to his outstanding deportation order. Vicario was arrested and turned over to the ICE, where he remains in custody.

  The ICE has informed Vicario that it intends to remove him pursuant to the Warrant of Deportation issued in 1997, notwithstanding Vicario's claim that he timely departed the United Page 3 States. ICE intended to effectuate Vicario's deportation on January 16, 2004. On January 15, 2004, this Court granted Vicario's Emergency Motion to Stay Deportation.

  Respondents first argue that this Court lacks jurisdiction under 8 U.S.C. § 1252(g) to review Vicario's habeas petition.

  Amendments to the Immigration and Nationality Act do not foreclose all use of 28 U.S.C. § 2241, the general habeas corpus statute. See INS v. St. Cyr, 533 U.S. 289, 311-313 (2001). However, 8 U.S.C. § 1252(g) prohibits the review of particular kinds of administrative decisions in the district courts. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (AADC). Section 1252(g) states:
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against an alien under this chapter.
  Accordingly, Section 1252(g) restricts the districts> `jurisdiction only in the three circumstances found within the statute: "when the alien challenges discretionary actions taken by the Attorney General to (1) commence proceedings, (2) adjudicate cases, and (3) execute removal orders." Fornalik v. Ferryman, 223 F.3d 523, 531 (7th Cir. 2000) (Fornalik), citing AADC, 525 U.S. at 482.

  In the instant case, Vicario asserts that the claim of a removal order is improper as a matter of law and, no valid removal order exists because he voluntarily left the United States in 1995. Accordingly, Vicario is not challenging a discretionary action by the Attorney General to commence proceedings, adjudicate his case, or execute his removal order; and Section 1252(g) is not applicable. See Fornalik, 233 F.3d at 531-33 (finding Section 1252(g) did not foreclose the district court's review of petitioner's claim that the district director's denial of his adjustment of status application Page 4 was incorrect as a matter of law). Thus, Section 1252(g) does not deprive this Court of jurisdiction over Vicario's petition.

  Respondents also argue that Petitioner has not established the necessary elements for a stay.

  A petitioner seeking a stay of deportation must show: (1) some likelihood of success for his petition for review, (2) irreparable harm will occur if the stay is denied, (3) the potential harm to the petitioner outweighs the harm the respondent will suffer if the stay is granted, and (4) that a stay serves the ...

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