In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-2166

KALIN DIMITROV and ZDRAVKA DIMITROVA,

Petitioners,

v.

JOHN D. ASHCROFT, Attorney General of the United States,

Respondent.

____________

Petition for Review of Orders of the

Board of Immigration Appeals.

Nos. A73-427-543, A73-427-544.

____________

SUBMITTED APRIL 26, 2004—DECIDED MAY 24, 2004

____________

Before POSNER, ROVNER, and EVANS, Circuit Judges.

PER CURIAM. On April 13, 2004, Kalin Dimitrov, an alien

whose appeal from the denial by the Board of Immigration

Appeals of his claim of asylum was pending before this

court, was detained by officers of the Department of

Homeland Security while trying to get an extension of his

work permit. He was told he’d be immediately removed

from the country for overstaying his visa. We do not know

what time of day that was, but at approximately 4:50 p.m.

Dimitrov’s lawyer filed with this court a motion for a stay

of removal and at 5:30 one of our judges granted a temporary stay pending consideration of the motion by a three-
2 No. 03-2166

judge panel. Our Clerk’s office was unable, however—

either by emailing, faxing, or phoning—to elicit a response

from anyone involved in the case at either the Justice

Department or the Department of Homeland Security until

9:00 p.m., when a Justice Department attorney emailed the

Clerk’s office that he would check the status of Dimitrov’s

removal the next day. That was done and, fortunately,

Dimitrov had not yet been removed. But the government’s

failure to make a prompt and effective response to the notice of our stay impelled us to order the Justice Department

to show cause why it should not be sanctioned for failing to

ensure that notice of a stay issued after normal business

hours was promptly communicated to the relevant immigration officials.

In its response the government explains that upon

receiving either word that a motion for a stay of removal

may be filed or a copy of the motion, the Justice Department’s Office of Immigration Litigation asks the Department of Homeland Security about the status of the alien’s

removal and conveys DHS’s reply to the court so that we

can decide how quickly we should act on the motion. If we

then issue a stay the Justice Department attorney assigned

to the case informs the appropriate DHS district office and

the information is recorded in the alien’s file and entered

into a DHS database. The DHS’s Bureau of Immigration and

Customs Enforcement is then responsible for stopping the

removal. For stays issued after normal business hours, DHS

has furnished the Justice Department with a phone number

at which the Department can reach a responsible Bureau

official.

In this case, however, after receiving notice at 8:15 p.m. of

the temporary stay barring Dimitrov’s removal, the Justice

Department’s attorney was unable to reach anyone at the

DHS facility at which Dimitrov was being held. He faxed
No. 03-2166 3

and emailed a copy of the stay to the Bureau of Immigration

and Customs Enforcement and phoned the Bureau at the

special phone number that had been provided to the Justice

Department. No one answered. He left a voicemail message

rather than making a further effort to reach the Bureau.

This was a potentially fatal breakdown in the established

procedures. The government says it was harmless because

Dimitrov was not in any danger of being removed: “the

Broadview facility where Mr. Dimitrov was being held is

not a 24-hour facility” and “aliens are ordinarily not

removed from that facility after normal business hours.

Aliens are only removed after-hours from that facility if the

alien has completed removal processing and is scheduled to

leave on an after-hours flight.” Dimitrov had just been

detained, so his removal was not imminent. It usually takes

several days to complete the paperwork necessary for

removing an alien, in which event the alien’s lawyer has

plenty of time in which to move for a stay.

Yet situations do arise in which time is of the essence. The

government acknowledges that some aliens, including

Mexican and Canadian nationals, and “certain fugitives”

(we are not told which), are often removed from the U.S. on

the same day they are taken into custody. Without sound

procedures, consistently applied, to ensure that stays are

promptly executed, some aliens may slip through the cracks

and be removed despite the existence of the stay. This has

happened. See, e.g., Lindstrom v. Graber, 203 F.3d 470, 474

(7th Cir. 2000); Singh v. Waters, 87 F.3d 346, 347 (9th Cir.

1996).

Recognizing the insufficiency of its current procedures,

the government has provided the court with a list of

emergency phone numbers of DHS supervisors in the states

of the Seventh Circuit. In addition, the government tells us

that DHS officers in charge of removing aliens often check
4 No. 03-2166

this court’s docket on the Internet to ascertain that there is

no stay in place before physically removing an alien and

that the Ninth Circuit and DHS have developed a system

whereby the court emails stays to an Internet address at the

local DHS office that is reviewed by DHS officials. When an

email is received, notification is sent to the court so that the

court knows that the Justice Department notified DHS of the

stay. The government expresses its willingness to make a

similar arrangement with this court, and we encourage it do

so.

In view of the government’s constructive response and the

fact that the stay was not in fact violated and that the

government’s carelessness did not impose legal expenses on

the alien, the order to show cause is discharged.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-24-04