UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

LIN BAO JIAN, :

:

Petitioner : No. 4:CV-05-1551

:

vs. : Petition Filed 08/02/05

:

BUREAU OF IMMIGRATION AND CUSTOMS : (Judge Muir)

ENFORCEMENT, :

: (Magistrate Judge Mannion)

Respondent :

ORDER

August 8, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On August 2, 2005, Petitioner Lin Bao Jian, a native of The

Peoples Republic of China, filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. Incorporated within that

petition is a request “that this court grant him a ‘Stay of

removal’ in order to pursue the proceeding at issue.” (Petition

for Writ of Habeas Corpus, p. 1) We will construe that request

as a separate motion to stay Jian’s removal pending our

disposition of his habeas corpus petition.

The Clerk of Court assigned this case to us and referred it

to Magistrate Judge Malachy E. Mannion for preliminary

consideration. Despite the reference of Jian’s petition to the

Magistrate Judge, it is the policy of this court for the

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District Judge to rule on a motion to stay the petitioner’s

removal.

Jian’s petition is somewhat unique in that he does not

challenge the final order of removal that has been issued in his

case. Jian concedes that he may be removed to his native

country for the reasons stated by the government. His only

claim is that he is entitled to be released from detention on

bail pending his removal. According to Jian’s petition, he is

being subjected to an indefinite period of incarceration which

to this point has exceeded six months because the repeated

efforts to secure his travel papers from The Peoples Republic of

China have been unsuccessful and he will not be deported without

those papers. As soon as the papers are obtained, it appears as

though Jian will immediately be removed from the United States.

The relief sought in Jian’s motion to stay his removal is

not related in any manner to the relief he seeks in his habeas

petition. In our view granting the motion to stay this case

could actually prolong Jian’s detention because a party would

have to move for the stay to be lifted before Jian could be

removed from the country. Consequently, we question Jian’s

purposes for seeking a stay of his removal. Nonetheless, we

will proceed to consider the merits of the motion. 

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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. We will apply those four elements to Jian’s

motion to stay his removal while his habeas petition is pending

in this court.

Jian has not demonstrated a likelihood of success on the

merits of his petition. One of the exhibits attached to Jian’s

petition is a “Decision to Continue Detention” issued by the

Bureau of Immigration and Customs Enforcement. That document

states the following:

Your file indicates that you were convicted of

Participating in a Racketeering Enterprise. It also

indicates that you are associated with the Fukienese Flying

Dragons ... [which] is involved in several criminal acts

including murder, rape, kidnapping [sic], robbery and other

crimes. Due to these aforementioned facts, Immigration and

Customs Enforcement considers you a threat to the community

if release were authorized. ICE believes the Chinese

Embassy is working on issuing a travel document on your

behalf.

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(Petition for Writ of Habeas Corpus, Exhibit C) Based on the

specific facts of this case, Jian has not demonstrated that his

continued detention violates his due process rights.

Jian has not addressed the issue of whether he would be

irreparably harmed if a stay is not granted. Our review of the

petition does not reveal any reason to believe such harm will

befall Jian if the stay is not granted. As noted above, denying

Jian’s motion for a stay would actually expedite his removal.

The third factor to consider is whether the potential harm

to Jian outweighs the harm to the government if a stay is not

granted. The potential harm caused by Jian’s continued

detention does not outweigh the government’s interest to remove

Jian from the United States as expediently as possible and to

detain him in custody pending his removal from this country. 

The fourth and final element to consider is whether 

granting the stay would serve the public interest. For the

reasons set forth above, prolonging Jian’s detention in this

country by staying this case is not in the public interest. 

We will deny Jian’s request for a stay of deportation while

his petition is pending in this court.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

Jian’s motion (Document 1) to stay his deportation is

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denied.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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