Haifa Saleh El Himri; Musab El Himri v. John Ashcroft

U.S. Court of Appeals for the Ninth Circuit

Haifa Saleh El Himri and her son, Musab El Himri, petitioned for a stay of voluntary departure, pending review of the BIA’s final order of removal.  The Immigration Judge (IJ) denied their application for asylum, withholding of removal and relief under the Convention Against Torture (CAT), and ordered the Himris removed to Jordan.  The Judge gave the petitioners 62 days in which to voluntarily depart from the U.S. upon posting a $500 voluntary departure bond.  The BIA affirmed the decision and granted the Himris another 30 days in which to voluntarily depart

The Himris then filed a petition for review by the Ninth Circuit and a motion for stay of removal and voluntary departure.  Relying on Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9^th Cir. 2003), the Himris argued that the Ninth Circuit has jurisdiction to stay voluntary departure in cases where a stay of removal is also warranted.  The Attorney General opposed the motion for stay of voluntary departure, contending that the Ninth Circuit does not have the power to do so. 

The Court found that “the standards for obtaining a stay of removal shall also apply to stays of voluntary departure.”  However, the Court added that a petitioner must show either “a probability of success on the merits and the possibility of irreparable injury,” or (2)“that serious legal questions are raised and the balance of hardships tips sharply in the petitioner’s favor.”

The Himris argued that there were “serious legal questions” in that the IJ did not analyze their claims under CAT separately from their asylum and withholding petitions.  Also, the Himris argued that they are stateless Palestinians born in Kuwait, and as neither one of them has ever lived in Jordan, the IJ was mistaken in ordering their removal to Jordan.  The Himris also argued that the IJ did not consider Musab’s petition separately from his mother’s petition.  Additionally, the Himris demonstrated that they would suffer hardship because they have lived in the U.S. for thirteen years and four of Haifa’s five children are U.S. citizens and would be separated from their mother if she was removed from the U.S.

The Court granted the Himris a stay of voluntary departure.