Milbin v. Ashcroft, et al.

No. 3:02cv2227 (JBA)

US District Court for the District of Connecticut

2003 US Dist. LEXIS 21624

Rikesnson Milbin, a lawful permanent resident and Haitian national, filed a habeas petition on December 17, 2002, which challenged the constitutionality of his mandatory detention and sought to vacate the Board of Immigration Appeal’s (BIA) order of removal.  The Court found that Milbin was not removable because his criminal conviction did not qualify as an aggravated felony.

In March 2001, Milbin pled guilty to assault in the third degree.  He received a one year suspended sentence and two years of probation.  In September 2001, Milbin violated his probation, causing his suspension to be lifted and his sentence to be changed to six months in prison.  After his sentence was completed in February 2002, Milbin was taken into INS custody and issued a deportation order for having been convicted of an aggravated felony, defined as a “crime of violence...for which the term of imprisonment is at least one year.”

An Immigration Judge (IJ) ordered Milbin to be removed for his conviction.  Milbin appealed to the BIA arguing that his conviction was not a “crime of violence” and that he did not receive sentence of imprisonment for one year.  The BIA dismissed his appeal.  Milbin filed his petition with the Connecticut District Court, which issued a stay of removal on March 19, 2003.

Citing Chrzanoski v. Ashcroft, 327 F. 3d (2d Cir. 2003), the Connecticut District Court decided that third degree assault is not a crime of violence and granted Milbin’s petition for a writ of habeas corpus and ordered the he should be released from custody.

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Nwakanma v. Ashcroft

No. 03-4317

US Court of Appeals for the Sixth Circuit

2003 US App. LEXIS 24769; 2003 FED App. 0436P

Godfrey N. Nwakanma, a native and citizen of Nigeria, sought asylum, withholding of removal and relief under the Convention Against Torture (CAT).  An immigration judge (IJ) denied all such relief and this was affirmed by a Board of Immigration Appeals (BIA) decision.  The BIA did grant Nwakanma voluntary departure within 30 days of the removal order.  Nwakanma petitioned the Sixth Circuit for review of the decision.

Nwakanma filed two motions on the last day before the expiration period for voluntary departure: 1) a motion to stay voluntary departure pending adjudication of the petition for review, and 2) a motion to stay removal pending judicial review.  The Attorney General stated that he did not oppose the stay of removal but did oppose the stay of voluntary departure.

The Sixth Circuit stated that it had previously decided that a stay of removal may be granted (Bejjani v. INS, 271 F.3d 670, 688, 6^th Cir. 2001), the circuit had not dealt with stays of the period allowed for voluntary departure.  The only circuit dealing with this issue held that the equitable power of courts of appeals “extends to stays of voluntary departure” (El Himri v. Ashcroft, 344 F.3d 1261, 9^th Cir. 2003).

The court asserted that “voluntary departure is a discretionarily granted alternative to mandatory removal” where immigrants can avoid the penalties of forced removal.  Immigrants who do not voluntarily depart the US after voluntary departure has been granted face additional penalties.  An immigrant who has been granted voluntary departure and who chooses to have his/her case reviewed may suffer penalties if he/she does not receive a stay of voluntary departure.

Attorney General Ashcroft argued that the Sixth Circuit did not have the jurisdiction to grant Nwakanma’s motion.  However, the Sixth Circuit asserted that it did have the jurisdiction to grant a stay of the “immediate effectiveness of the relief already granted by the [Attorney General]...to allow [Nwakanma] to receive appellate review.”

By applying the factors for injunctive relief, used to determine whether a stay of removal may be granted, the Sixth Circuit found that “the balance of harm supports a stay of removal” and because “a stay of removal is appropriate, a stay of the period for involuntary departure is also appropriate.”  The court granted the motion to stay removal and the motion to stay the period for voluntary departure.  The stays expire when a final decision in this case is given or as otherwise ordered by the court.