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Keywords

jurisdictionappealmotionregulationvisa
jurisdictionappealmotionregulationnaturalization

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Thapa v. Gonzales

Facts

Deu Thapa, a native and citizen of Nepal, was apprehended by the United States Customs and Border Protection in early 2004. He was charged with removal due to improper entry and later for overstaying a nonimmigrant visa. Thapa sought voluntary departure instead of removal and requested a continuance for labor certification, which was denied by the Immigration Judge. The BIA affirmed the IJ's decision and ordered Thapa to voluntarily depart within 60 days.

Deu Thapa, a native and citizen of Nepal, was apprehended by the United States Customs and Border Protection at White River Junction, Vermont, in early 2004. At that time, as the Immigration and Naturalization Service ('INS') subsequently alleged in a Notice to Appear ('NTA'), Thapa was unable to provide a document demonstrating his legitimate entry into the United States, nor was he able to establish the date, place, or manner of his entry into the United States. Accordingly, the INS charged that Thapa was subject to removal because of his improper entry into the United States.

Issue

Whether the court has jurisdiction under the Immigration and Nationality Act to stay an order of voluntary departure issued by an immigration judge or the Board of Immigration Appeals.

This motion presents an issue of first impression in this Circuit: whether we have jurisdiction under the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., to stay an order of voluntary departure issued by an immigration judge or the Board of Immigration Appeals.

Rule

The court held that it has the authority under 28 U.S.C. 2349(b), as incorporated by reference in 8 U.S.C. 1252(a)(1), to stay an agency order pending consideration of a petition for review on the merits.

We hold that we have the authority under 28 U.S.C. 2349(b), as incorporated by reference in 8 U.S.C. 1252(a)(1), to stay an agency order pending our consideration of a petition for review on the merits, and that nothing in the Immigration and Nationality Act or its implementing regulations strips us of this authority with respect to orders of voluntary departure.

Analysis

The court analyzed the statutory provisions and concluded that nothing in the Immigration and Nationality Act or its implementing regulations strips the court of its authority to stay an order of voluntary departure. The court found that the balance of hardships tipped in Thapa's favor, warranting the stay of his voluntary departure order.

The court, construing statutory ambiguities in favor of petitioner, disagreed with the government's reading of these provisions, and held that nothing rebutted the presumption that courts may stay an agency order pending review of a petition on the merits. Reviewing the motion for a stay of the final order of voluntary departure on its merits, the court issued the stay because petitioner showed a possibility of success and the balance of hardships tipped in his favor.

Conclusion

The court affirmed its prior grant of petitioner's motion for a stay of voluntary departure. The court did not issue a ruling on the motion for a stay of removal as it was not briefed.

The court affirmed its prior grant of petitioner's motion for a stay of voluntary departure. Because it was not briefed, the court did not issue a ruling on the motion for a stay of removal.

Who won?

Deu Thapa prevailed in the case because the court found that it had jurisdiction to grant a stay of the voluntary departure order, which was in his favor.

Deu Thapa prevailed in the case because the court found that it had jurisdiction to grant a stay of the voluntary departure order, which was in his favor.

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