IN THE UNITED STATES COURT OF APPEALS

 FOR THE FIFTH CIRCUIT

_____________________

No. 13-60319

 _____________________

MARCO ANTONIO DURAN-CRUZ, 

 Petitioner,

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, 

 Respondent.

 __________________________

Emergency Motion for Extension of Temporary

Stay of Removal Nunc Pro Tunc and 

Emergency Motion for Stay of Removal on 

Petition for Review of an Order by the

Board of Immigration Appeals

BIA No. A045-143-955

 __________________________

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Petitioner Marco Antonio Duran-Cruz was deported by the Government

hours before this court granted a temporary stay of deportation pending review

United States Court of Appeals

Fifth Circuit

F I L E D

June 12, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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of Duran-Cruz’s appeal.1 Duran-Cruz now seeks an extension of that temporary

stay nunc pro tunc to the time he filed his original Emergency Motion for Stay

of Removal. We deny his motion. 

I

Duran-Cruz was convicted of aggravated assault in Tennessee, and

removal proceedings were initiated. In a preliminary bond hearing, an

Immigration Judge (IJ) concluded that Duran-Cruz’s conviction qualified as an

aggravated felony under 8 U.S.C. § 1101(a)(43)(G) based on a copy of the

Tennessee judgment indicating that Duran-Cruz had been sentenced to 6 years

“CCA” and 6 years probation. At the time, Duran-Cruz had argued that his

conviction was not a felony because his incarceration sentence was suspended

and he served only probation. Duran-Cruz requested a rehearing on the issue,

which the IJ denied.

At the subsequent deportation hearing, the IJ concluded that the issue of

whether Duran-Cruz was an aggravated felon had already been determined in

the bond hearing and ordered Duran-Cruz deported. While that order was on

appeal with the Board of Immigration Appeals (BIA), Duran-Cruz’s attorney

discovered a docket entry on a court computer, previously not found, in DuranCruz’s state criminal file (Minute Order Entry) relating to Duran-Cruz’s

sentence that read as follows:

CAME THE ATTORNEY GENERAL WHO PROSECUTES FOR

THE STATE AND THE DEFENDANT IN PERSON, BEING

REPRESENTED BY COUNSEL.

THEREUPON, THIS CAUSE CAME ON TO BE HEARD UPON A

SENTENCING HEARING; AFTER HAVING HEARDTHE PROOF

AND ARGUMENT OF COUNSEL, THE COURT SENTENCES

THE DEFENANT [sic] TO SIX YEARS INTENSIVE PROBATION

WITH JUDGMENTS TO BE ENTERED.

1 Order, No. 13-60319 (5th Cir. June 7, 2013).

2

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Based on this newly discovered Minute Order Entry, Duran-Cruz moved for a

rehearing, arguing for the first time that he was sentenced directly to probation

without any imprisonment and therefore his conviction did not constitute an

aggravated felony.2

The IJ denied Duran-Cruz’s request for a rehearing for two reasons. First,

under 8 C.F.R. § 1003.23(b)(1) a party may file only one motion to reconsider,

and the IJ concluded that Duran-Cruz’s earlier request for a rehearing of the

bond determination precluded a rehearing of the judgment. Second, the IJ held

that Duran-Cruz had not shown that his motion was based on previously

unavailable and undiscoverable evidence as required to justify reconsideration

under 8 C.F.R. § 1003.23(b)(3). Duran-Cruz applied for an administrative stay

of removal and appealed to this court, arguing (1) that the regulations

distinguish between pre- and post-decision motions for rehearing and (2) that

the Minute Order Entry is material evidence that was previously unavailable.

On June 5, 2013, while his appeal in this court was pending, Duran-Cruz’s

attorney learned that the Government had denied his application and planned

to deport Duran-Cruz on June 7, 2013. Duran-Cruz filed an Emergency Motion

for Stay of Removal with this court on June 6. The following day, we granted a

temporary stay of removal but not before the Government deported Duran-Cruz. 

Duran-Cruz now asks this court to extend the temporary stay nunc pro tunc.

II

Although Congress eliminated the automatic stay of removal that

previously accompanied the filing of an appeal, we retain the inherent authority

to issue a stay of removal as appropriate.3In considering whether to issue a

2 Under this court’s precedent, a conviction must carry with it a sentence of at least one

year of incarceration, even if not served, to be classified as an aggravated felony for the

purposes of removal. United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999).

3 Nken v. Holder, 556 U.S. 418, 435-36 (2009).

3

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stay, we consider “(1) whether the stay applicant has made a strong showing

that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will

substantially injure the other parties interested in the proceeding; and (4) where

the public interest lies.”4 A stay may be justified to preserve meaningful review,

but a stay is also an “intrusion into the ordinary processes of administration and

judicial review” and therefore not to be granted reflexively.5 Furthermore, we

are mindful that Duran-Cruz is requesting a stay nunc pro tunc. Courts have

sanctioned orders nunc pro tunc in other immigration contexts only in “certain

exceptional cases.”6It is far from clear that this court has the authority to issue

a nunc pro tunc order in this precise context, and in any event, we have

expressed reluctance to extend the application of nunc pro tunc authority absent

manifest necessity.7

Of the factors we consider in granting a stay, the first two are “the most

critical.”8In particular, the petitioner must demonstrate “more than a mere

possibility”of success on the merits.9In his underlying appeal, Duran-Cruz

4

Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)) (internal quotation

marks omitted).

5

Id. at 427 (quoting Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921,

925 (D.C. Cir. 1958) (per curiam)) (internal quotation marks omitted).

6 E.g., Iavorski v. INS, 232 F.3d 124, 130 n.4 (2d Cir. 2000) (citing Batanic v. INS, 12

F.3d 662, 667-68 (7th Cir. 1993)); cf. Fanelli v. Hensley (In re Triangle Chems., Inc.), 697 F.2d

1280, 1289 (5th Cir. 1983) (noting that a bankruptcy court’s equitable powers “may permit

nunc pro tunc appointment [of a trustee] in rare or exceptional circumstances”).

7See Romero-Rodriguez v. Gonzales, 488 F.3d 672, 678-79 & n.8 (5th Cir. 2007) (holding

that the court’s nunc pro tunc authority does not extend to correcting the BIA’s legal errors

and noting that exercise of that power may be warranted only in exceptional circumstances,

such as avoidance of a constitutional violation).

8 Nken, 556 U.S. at 434.

9

Id.

4

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challenges the denial of a rehearing, which this court reviews under the “highly

deferential abuse-of-discretion standard.”10 Therefore, the first factor of the stay

analysis rests on whether Duran-Cruz is likely to succeed in his claim that the

IJ abused its discretion. We conclude that the likelihood of success is

insufficient to justify a stay nunc pro tunc, even were we to possess that power.

Duran-Cruz is likely correct that the IJ erred by holding that he had

exhausted his only opportunity for a rehearing. The one-motion limit applies

only to motions filed after entry of a “final administrative order of removal,

deportation, or exclusion.”11 Because Duran-Cruz’s earlier motion was filed and

denied before the IJ issued the final order of removal, his subsequent motion for

reconsideration was likely not barred.12

However, Duran-Cruz must also show that the IJ abused its discretion by

holding that the Minute Order Entry did not justify a rehearing pursuant to 8

C.F.R. § 1003.23. In pertinent part, that regulation provides that “[a] motion to

reopen will not be granted unless the Immigration Judge is satisfied that

evidence sought to be offered is material and was not available and could not

have been discovered or presented at the former hearing.”13 Duran-Cruz asserts

that the Minute Order Entry is material evidence that was “previously

unavailable” to him because it was not in his criminal file and he only discovered

it after a search of the county’s computer system with the help of the county

clerk. We have never considered the meaning of “previously unavailable and not

discoverable” under § 1003.23, and we need not address the question here. Even

10 Rodriguez-Manzano v. Holder, 666 F.3d 948, 952 (5th Cir. 2012) (quoting GomezPalacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)) (internal quotation marks omitted).

11

8 C.F.R. § 1003.23(b)(1).

12

Id.

13

Id. § 1003.23(b)(3).

5

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if the circumstances were to meet those criteria, it is unlikely that the IJ’s

refusal to grant a rehearing based on the Minute Order Entry was an abuse of

discretion.14

Viewed in the context of the evidence as a whole, the probative weight of

the Minute Order Entry is diminished. Tennessee law mandates that a sentence

of probation be accompanied by a suspended term of imprisonment.15 The

applicable Tennessee statute states in pertinent part that

[i]f the court determines that a period of probation is appropriate,

the court shall sentence the defendant to a specific sentence but shall

suspend the execution of all or part of the sentence and place the

defendant on supervised or unsupervised probation either

immediately or after a period of confinement for a period of time no

less than the minimum sentence allowed under the classification

and up to and including the statutory maximum time for the class

of the conviction offense.16

Accordingly, Tennessee courts have held “that there is no such thing as

probation without a suspension of the sentence.”17 Furthermore, the record

contains ample evidence that Duran-Cruz was sentenced to six years of

incarceration, which the state judge suspended. In addition to the judgment

relied on by the IJ, the record before this court contains a completed “Probation

Order” indicating that Duran-Cruz was sentenced to a six-year term of

imprisonment that was suspended in favor of six years of probation. Against

this evidence, Duran-Cruz brings a single docket entry by the Tennessee clerk

that ambiguously omits mention of any suspended sentence of incarceration. 

14 See id. (“The Immigration Judge has discretion to deny a motion to reopen even if the

moving party has established a prima facie case for relief.”).

15 TENN. CODE ANN. § 40-35-303 (2012).

16

Id. § 40-35-303(c)(1) (emphasis added).

17 State v. McCammon, 623 S.W.2d 133, 135 (Tenn. Crim. App. 1981) (citing State v.

King, 603 S.W.2d 721, 725 (Tenn. 1980)).

6

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Admittedly, the Minute Order Entry raises the possibility that the sentencing

judge imposed a probation-only sentence, unauthorized by Tennessee law. 

However, when viewed against the weight of the evidence as a whole, it is a

slender reed from which to conclude that the IJ abused its discretion by denying

a rehearing.18 The request for a stay nunc pro tunc is DENIED.

It is further ordered that the temporary stay previously granted is now

dissolved, and the request for a stay pending appeal is DENIED as MOOT.

18 See Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009) (“[T]his court must

affirm the BIA’s decision as long as it is not capricious, without foundation in the evidence, or

otherwise so irrational that it is arbitrary rather than the result of any perceptible rational

approach.”).

7

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