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ORDER DENYING STAY OF REMOVAL 

PAGE – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

SEBASTIAN ZIGA, )

) CASE NO. C05-0816-RSL-MJB

Petitioner, )

)

v. ) 

) ORDER DENYING STAY

MICHAEL CHERTOFF, ) OF REMOVAL

)

Respondent. )

_________________________________________)

On May 2, 2005, petitioner filed, through counsel, a Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2241, challenging a final order of removal to Ghana. (Dkt. #1). At the

same time, petitioner filed an emergency Motion for Stay of Deportation, indicating that he is to

be deported from the United States today, May 2, 2005. (Dkt. #2 at 1). Respondent objects to

petitioner’s motion for stay contending that “petitioner gives no indication that he has any

defense to the fundamental issue regarding his continued presence in the United States, which is

that he has overstayed his visa now more than six years.” (Dkt. #3 at 3). Accordingly,

respondent argues that there is no showing of the probability of success on the merits.

Having reviewed petitioner’s motion for a stay of deportation, and the balance of the

record, the Court does hereby find and ORDER:

(1) Petitioner’s motion for a stay of deportation is DENIED. The standard of review for

a stay of removal is set forth in Abassi v. INS, 143 F.3d 513 (9th Cir. 1998); see also Andreiu v.

Case 2:05-cv-00816-RSL Document 4 Filed 05/02/2005 Page 1 of 3

Ziga v. Chertoff Doc. 4

Dockets.Justia.com
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ORDER DENYING STAY OF REMOVAL 

PAGE – 2

Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001) (en banc) (concluding that § 1252(f)(2) does not

limit the power of federal courts to grant a stay of removal). Under Abassi, petitioner must show

either: (1) the probability of success on the merits plus the possibility of irreparable harm, or (2)

that serious legal questions are raised and the balance of hardships tips in petitioners favor. 

Abassi, 143 F.3d at 514. The Court finds that petitioner meets neither of these prongs at this

time. 

Petitioner is a native and citizen of Ghana who was admitted to the United States on or

about November 17, 1998, as a non-immigrant visitor with authorization to remain in the country

until February 6, 1999. On May 8, 2003, the Service issued a Notice to Appear, charging

petitioner with removability under Section 237(a)(1)(B) of the Immigration and Nationality Act,

in that petitioner had remained in the United States for a time longer than permitted. On

February 10, 2004, petitioner was ordered removed in absentia after failing to appear at his

removal hearing. On February 17, 2005, one year later, petitioner filed a motion to reopen based

on “exceptional circumstances.” On March 9, 2005, an Immigration Judge (“IJ”) in Detroit,

Michigan denied petitioner’s motion to reopen, finding that petitioner had failed to demonstrate

exceptional circumstances to excuse his failure to appear. On April 8, 2005, petitioner filed a

motion for reconsideration of the IJ’s denial, alleging that the death of his father in Ghana on the

date of his removal hearing constituted “exceptional circumstances” for his failure to appear at

his removal proceedings, and alleging ineffective assistance of his former counsel for failing to

raise this argument in his motion to reopen. (Dkt. #1).

Aside from the aforementioned facts alleged in petitioner’s habeas petition, petitioner has

not indicated the likelihood of success on the merits of any claim, nor has he raised substantial

legal issues. Therefore, petitioner has provided no argument to support this Court’s grant of a

stay of his removal.

(2) The Court expresses no views at this time as to the merits of petitioner’s habeas

petition.

Case 2:05-cv-00816-RSL Document 4 Filed 05/02/2005 Page 2 of 3
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ORDER DENYING STAY OF REMOVAL 

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(3) The Clerk shall direct a copy of this Order to all counsel of record, and shall forward a

copy of this Order to Judge Benton.

DATED this 2nd day of May, 2005. 

A

Robert S. Lasnik

United States District Judge

Recommended for Entry

this 2nd of May, 2005.

s/ Monica J. Benton 

MONICA J. BENTON

United States Magistrate Judge

Case 2:05-cv-00816-RSL Document 4 Filed 05/02/2005 Page 3 of 3