-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MIGUEL ANGEL DIAZ-MEJIA, :

Petitioner :

:

v. : CIVIL NO. 2:02-CV-04454-JCJ

:

JOHN ASHCROFT, UNITED :

STATES ATTORNEY GENERAL, :

et al., :

Respondents :

:

:

GOVERNMENT”S MOTION TO LIFT 

 STAY OF REMOVAL 

I. BACKGROUND

In this alien habeas corpus case, the petitioner

was convicted of trafficking in cocaine in New Bedford,

Bristol County, Massachusetts in about 1991. He was arrested

in the Summer of 1994, and was released on bail. Apparently

he skipped, and came back into the custody of the

Massachusetts authorities sometime in 1996. 

On April 24, 1996 Congress passed the

Antiterrorism and Effective Death Penalty Act of 1996,

Pub.L. No. 104-132, tit. I, 110 Stat. 1214 (24 April 1996)

("AEDPA"). Section 440(d) of the AEDPA eliminated what was

known as the “Section 212(c)” waiver for aggravated felon

Case 2:02-cv-04454-JCJ Document 6 Filed 10/28/2002 Page 1 of 7
-2-

aliens without regard to time served. The section 212(c)

waiver (codified at 8 U.S.C. § 1182(c), repealed 1996) was

the principal deportation waiver for resident aliens with

criminal convictions facing proceedings.

Four months after the waiver was proscribed for

aggravated felon aliens, Diaz pleaded guilty (in July 1996)

to an aggravated felony (drug trafficking). Following his

sentence he was taken into custody by INS and ordered

removed. Diaz was detained in Pennsylvania.

On or about May 9, 2002 counsel filed a habeas

corpus petition in the Southern District of New York,

seeking review of the order and a stay of removal. The

district court there issued a stay “until further order of

the Court” and transferred the case to this Court on July 3,

2002.

The government answered the petition on July 23,

2002. 

On Friday, October 25, 2002 Diaz learned that his

removal to the Dominican Republic was imminent. In a

telephonic hearing Friday evening, Judge Yohn (the emergency

judge)restrained the removal until this Court affirmatively

lifted the New York court’s stay.

Case 2:02-cv-04454-JCJ Document 6 Filed 10/28/2002 Page 2 of 7
-3-

II. ARGUMENT

Following the passage of the 1996 amendments to

the Immigration & Nationality Act (INA), there is no longer

any requirement that an alien remain in the United States

while his final order is reviewed by a federal court; see

Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001). In

other words, following the repeal of 8 U.S.C. § 1105a(c),

federal courts retain jurisdiction to review orders lodged

against aliens following their expulsion. Id. The

concomitant to this is that “stays” of removal are no longer

“automatic” upon a judicial filing, cf. 8 U.S.C.

§ 1105a(a)(3) (1994). Because the Court can consider the

merits of a properly-filed habeas petition while the alien

is abroad, under the post-1996 immigration law a stay is

appropriate only if the alien persuades the Court "by clear

and convincing evidence that the entry or execution of such

[removal] order is prohibited as a matter of law...." 8

U.S.C. § 1252(f)(2). See Weng v. U.S. Attorney General, 

- F.3d -, 2002 WL 533658, *1 (11th Cir. Apr. 10, 2002);

Hypolite v. Blackman, 57 F.Supp.2d 128, 132 (M.D.Pa.

1999)(applying § 1252(f)(2) to habeas cases); but cf.

Andreiu v. Reno, 223 F.3d 1111 (9th Cir. 2000), superseded

Case 2:02-cv-04454-JCJ Document 6 Filed 10/28/2002 Page 3 of 7
-4-

by 253 F.3d 477, 479-84 (9th Cir. 2001) (en banc) ("enjoin"

term in § 1252(f)(2) does not include "stay"). 

It follows that most aliens, and certainly Western

Hemisphere aliens like Diaz, cannot establish any

irreparable harm that warrants a stay of removal. If they

prevail in the courts, they can be readmitted, a very simple

matter in Diaz’s case.

In addition to no irreparable harm, Diaz cannot

establish any likelihood of success on the merits. His legal

claim is weak in the extreme; he argues that even if

aggravated felons like him were not statutorily eligible for

a section 212(c) waiver when he pleaded guilty in July 1996,

nonetheless he should be considered because the waiver was

not repealed until September 30, 1996. The argument is

foreclosed by our Circuit’s decision in Perez v. Elwood, 294

F.3d 552, 558 (3d Cir. 2002). In Perez, the circuit analyzed

the application of the Supreme Court’s decision in INS v.

St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347

(2001), and noted “[i]n St. Cyr, the Supreme Court

considered whether ‘the restrictions on discretionary relief

from deportation contained in [AEDPA and IIRIRA] ... apply

to removal proceedings brought against an alien who pled

Case 2:02-cv-04454-JCJ Document 6 Filed 10/28/2002 Page 4 of 7
1 Counsel has suggested, no doubt accurately,

that some or all of Judge Batts’ order was

predicated on a stipulation by the United

States Attorney’s Office in Manhattan. 

-5-

guilty to a deportable crime before their enactment.’” 294

F.3d at 556 (emphasis added). Here Diaz pleaded guilty to an

aggravated felony after the enactment of AEDPA and its

restriction on the waiver for aggravated felons. He could

not possibly have had any reliance on its availability, the

touchstone of the retroactivity analysis in St. Cyr. That

the waiver was repealed later for other aliens is

irrelevant.

Finally, the New York district court’s open-ended

stay was improvidently issued. As noted above, the INA

authorizes a stay only when the evidence of illegality in

the removal order is “clear.” 8 U.S.C. § 1252(f)(2). While a

brief restraining order may be unobjectionable while the

habeas case is in transit between districts, an open-ended

stay in a case like this is an abuse of discretion.1 

III. CONCLUSION

For the foregoing reasons, the government requests

that the Court lift the stay and permit Diaz’ removal,

without prejudice to his pending habeas petition. An

appropriate order will be forwarded by diskette along with

Case 2:02-cv-04454-JCJ Document 6 Filed 10/28/2002 Page 5 of 7
-6-

the Court’s courtesy copy of this motion.

Respectfully,

PATRICK L. MEEHAN

United States Attorney 

 

JAMES G. SHEEHAN

Assistant United States Attorney

Chief, Civil Division

________________________________

STEPHEN J. BRITT

Assistant United States Attorney

Case 2:02-cv-04454-JCJ Document 6 Filed 10/28/2002 Page 6 of 7
-7-

Certificate of Service 

 I certify hereby that on the 29th Day of October, 2002 I personally served

or caused to be served a copy of the attached Government's Motion To Lift Stay Of

Removal, addressed to: 

Jorge Guttlein Esquire

Aranda & Guttlein

291 Broadway Suite 1500

New York NY 10007

 Attorney pro pet.

by first class mail service upon counsel. 

 

STEPHEN J. BRITT 

Assistant United States Attorney 

Suite 1250, 615 Chestnut Street 

Philadelphia, PA 19106-4476 

 (215) 861-8443 

 (215) 861-8642 telecopier 

 

Case 2:02-cv-04454-JCJ Document 6 Filed 10/28/2002 Page 7 of 7