UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

MAURICIO ARGUETA, :

:

Petitioner : No. 4:CV-05-0911

:

vs. : Petition Filed 05/04/05

:

BUREAU OF IMMIGRATION AND CUSTOMS : (Judge Muir)

ENFORCEMENT, INTERIM FIELD OFFICE :

DIRECTOR FOR DETENTION AND REMOVAL :

FOR THE PHILADELPHIA DISTRICT, :

:

Respondents :

ORDER

May 4, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On May 4, 2005, Petitioner Mauricio Argueta, a native of El

Salvador, filed a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241, an emergency stay of his allegedly imminent

deportation, and a request to proceed in forma pauperis.

According to his petition a final order of deportation has

been issued against him by the United States Bureau of

Immigration and Customs Enforcement. Argueta alleges that his

removal would be contrary to the controlling precedent

established by the Court of Appeals for the Third Circuit in

Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004), which held

that a certain provision of the Illegal Immigration Reform and

Immigrant Responsibility Act could not be applied retroactively. 

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The specific provision at issue repealed the availability,

pursuant to § 212(c) of the Immigration and Nationality Act, of

discretionary relief from deportation for aliens convicted of

aggravated felonies who served term of imprisonment of less than

five years. Argueta argues that Ponnapula applies in this case

and that he has unlawfully been denied an opportunity to file a

request for discretionary relief pursuant to § 212(c) of the

Immigration and Nationality Act before he is removed from this

country. Argueta also contends that the offense for which he is

being deported is, contrary the government’s position, not an

“aggravated felony,” as that phrase is defined and used in the

immigration laws. 

In the case of Douglas v. Ashcroft, 374 F.3d 230 (3d Cir.

2004), the United States Court of Appeals for the Third Circuit

established the standard for granting a stay of removal pending

review of a habeas corpus petition. The court in Douglas

applied the same elements which govern a motion for a

preliminary injunction. The court held that

a petitioner requesting a stay of removal must demonstrate

(1) a likelihood of success on the merits of the underlying

petition; (2) that irreparable harm would occur if a stay

is not granted; (3) that the potential harm to the moving

party outweighs the harm to the opposing party if a stay is

not granted; and (4) that the granting of the stay would

serve the public interest.

Id., at 233, 234.

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Argueta appears to have met those elements because, on the

face of his petition, he has shown that the court’s holding in

Ponnapula may apply to his case. In addition, Argueta alleges

that his family will suffer irreparable if he is removed from

the United States because he supports the family and he has a

son with Down’s Syndrome. Under the circumstances alleged in

Argueta’s petition, we are of the view that the potential harm

to him outweighs the harm to the government, if any, should a

stay not be granted, and that granting the stay would serve the

public interest.

We will grant Argueta’s request for a stay of deportation

and establish a briefing schedule on Argueta’s petition. We

will also grant Argueta’s motion to proceed in forma pauperis.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Argueta’s motion (Document 2) to proceed in forma

pauperis is granted.

2. Argueta’s motion (Document 1) to stay his deportation

is granted.

3. The Clerk of Court is directed to serve a copy of

Argueta’s petition and this order on the respondent

and the United States Attorney.

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4. Respondent, within twenty days after the date of this

order, shall respond to the allegations in the

petition for writ of habeas corpus.

5. Argueta may, within 15 days after the filing of the

response, file a reply brief.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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