This opinion was released initially in typescript form. 

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-2055, 05-2824

AHMAD AL-MARBU,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States,

Respondent.

____________

Petitions for Review of an Order of the

Board of Immigration Appeals.

No. A79-546-194

____________

ON MOTION TO STAY THE MANDATE

____________

APRIL 24, 2008

____________

RIPPLE, Circuit Judge (in chambers). This matter is before

me on the petitioner’s “Motion to Stay the Mandate of

Panel’s Order, Pending Petition for Writ of Certiorari, and

Request for ‘Unopposed’ 30 Day Extension to File Supplemental Brief,” filed on April 2, 2008. For the reason set

forth in this chambers opinion, I deny the requested relief.
2 Nos. 04-2055, 05-2824

A.

On March 26, 2008, we denied petitioner Ahmad AlMarbu’s petition for rehearing and petition for rehearing

en banc. The mandate was scheduled to issue on April 2,

2008, but the filing of this motion to stay on that day has

stayed temporarily the mandate. Mr. Al-Marbu seeks a

stay of this court’s mandate pending a petition for a

writ of certiorari to the Supreme Court. He also requests

30 days to file a brief in support of the motion to stay the

mandate; he explains that he did not have sufficient

time to prepare the present motion. 

“When a party asks this court to stay its mandate pending the filing of a petition for a writ of certiorari, that party

must show that the petition will present a substantial

question and that there is good cause for a stay.” Books v.

City of Elkhart, 239 F.3d 826, 827 (7th Cir. 2001) (Ripple, J.,

in chambers), citing Fed. R. App. P. 41(d)(2)(A). The

grant of a motion to stay the mandate “is far from a

foregone conclusion.” 16A Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure

§ 3987 (3d ed. 1999). Instead, the party seeking the stay

must demonstrate both “a reasonable probability of

succeeding on the merits” and “irreparable injury absent

a stay.” Bricklayers Local 21 v. Banner Restoration, Inc.,

384 F.3d 911, 912 (7th Cir. 2004) (Ripple, J., in chambers);

see also Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995)

(per curiam); United States v. Holland, 1 F.3d 454, 456 (7th

Cir. 1993) (Ripple, J., in chambers). In order to demonstrate a reasonable probability of succeeding on the merits

of the proposed certiorari petition, the applicant must

show a reasonable probability that four Justices will vote

to grant certiorari and a “fair prospect” that five Justices

will vote to reverse the judgment of this court. See Cali-
Nos. 04-2055, 05-2824 3

fornia v. Am. Stores Co., 492 U.S. 1301, 1307 (1989)

(O’Connor, J., in chambers); see also United States v. Warner,

507 F.3d 508, 511 (7th Cir. 2007) (Wood, J., in chambers);

Williams, 50 F.3d at 1360. We consider the issues that the

applicant plans to raise in the certiorari petition in the

context of the case history, the Supreme Court’s treatment

of other cases presenting similar issues and the considerations that guide the Supreme Court in determining

whether to issue a writ of certiorari. Williams, 50 F.3d

at 1361. 

In attempt to demonstrate that a petition for a writ of

certiorari would present a reasonable probability of

succeeding on the merits, counsel lists the five questions

that he will raise in the petition: (1) whether the defective

trial transcript prejudiced his ability properly to appeal

his case and constituted a denial of Due Process;

(2) whether this court denied his Due Process rights “to

have jurisdiction to consider” the merits of his case;

(3) whether the court unconstitutionally denied jurisdiction based on the decision in Ali v. Gonzales, 502 F.3d

659 (7th Cir. 2007), cert. denied sub nom. Ali v. Mukasey, ___

S. Ct. ___, No. 07-798, 2008 WL 1699478 (Apr. 14, 2008);

(4) whether the IJ’s denial of his second motion to continue the trial constituted an abuse of discretion; and

(5) whether the court’s stay of removal equitably tolled

his voluntary departure period. Counsel argues, in

essence, that our holding that we lacked jurisdiction to

review the IJ’s denial of the motion for continuance

was based on a misreading of our precedent. He contends

that the Ali decision misapplied the court’s decision in

Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). The five

issues that counsel says he will raise in the petition for a

writ of certiorari are the exact same five issues that he
4 Nos. 04-2055, 05-2824

raised in the petition for rehearing with suggestion for

rehearing en banc.

Counsel also submits that Mr. Al-Marbu would suffer

irreparable harm if he were required to leave the Country

now because his wife, a United States citizen, is currently

in Europe seeking advanced medical attention, and he

is the sole custodian of their two children. He offers no

further details regarding his wife’s medical needs, the

length of her stay, or whether there are other arrangements that could be made with respect to the children

or their travel. 

B.

I must conclude that Mr. Al-Marbu has not demonstrated

that his petition for a writ of certiorari would present a

reasonable probability of succeeding on the merits. He has

not demonstrated that his case involves an important

question of federal law that should be settled by the

Supreme Court or that his case conflicts with a decision

of the Supreme Court. See Sup. Ct. R. 10(c). Nor has he

argued that there exists a division between the circuits.

See Sup. Ct. R. 10(a). At most, he appears to argue that the

decision in his case conflicts with prior precedent from

this circuit. In deciding his case, we relied upon Ali v.

Gonzales, 502 F.3d 659 (7th Cir. 2007). A petition for a writ

of certiorari was filed in that case on December 12, 2007

and denied on April 14, 2008. Ali v. Mukasey, ___ S. Ct. ___,

No. 07-798, 2008 WL 1699478 (Apr. 14, 2008). Under these

circumstances, I must conclude that it is not likely that

four Justices will vote to grant certiorari in this case.

Finally, I see no reason to prolong these proceedings by

permitting counsel an additional 30 days to file a sup-
Nos. 04-2055, 05-2824 5

plemental brief in support of the request to stay the

mandate. The matters he intends to raise in his petition

for certiorari have been examined thoroughly in the

proceedings in this court and further delay in the issuance of our mandate is not justified.

Accordingly, I deny the motion to stay the mandate.

I further deny the request for a 30-day extension of time

to file a supplemental brief in support of the request to

stay the mandate. 

The Clerk is directed to issue the mandate immediately.

IT IS SO ORDERED

USCA-02-C-0072—5-1-08