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