### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI FTH CI RCUI T

_____________________ No. 13-60319

_____________________ MARCO ANTONIO DURAN-CRUZ,

Petitioner,

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

__________________________ Emergency Motion for Extension of Temporary S tay of Removal Nunc Pro Tunc and E mergency 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 w as deported by the G overnment hours before t his court g ranted a temporary stay of d eportation pending review U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-60319 Document: 00512271690 Page: 1 Date Filed: 06/12/2013No. 13-60319

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 w as convicted of aggravated a ssault in Ten n e s s e e, and removal proceedings w ere initiated. In a preliminary bond h earing, an Immigration Judge (IJ) concluded that Duran-Cruz’s conviction qualified as an aggravated felony u n d e r 8 U.S.C. § 1101(a)(43)(G) based on a copy of the Tennessee judgment i ndicating that Duran-Cruz had been sentenced to 6 years “CC A ” a n d 6 years probation. At the time, Duran-Cruz had a rgued that his conviction was not a felony because h is incarceration sentence was suspended and h e served only probation. Duran-Cruz requested a rehearing o n 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. W hile that order was on appeal with the Board of Immigration Appeal s (BIA), Duran-Cruz’s attorney discovered a d ocket entry on a court computer, previously not found, in DuranCruz’s state criminal file ( M inute Order Entry) relating t o D u r a n -Cruz’s sentence that read as follows: CAME THE A TTORNEY GENERAL WHO PROSECUTES FOR THE S T ATE A ND THE DEFENDANT IN PERSON, BEING REPRESENTED BY COUNSEL. THEREUPON, THIS CAUSE CAME ON TO BE H EARD UPON A S E N T E N C ING HEARING; AFTER HAVI N G H E A R D T H E P R O O F AND A R GUMENT OF COUNSEL, THE COURT SENTENCES THE D EFENANT [sic] TO SIX YEARS INTENSIVE PROBATION WITH JUDGMENTS TO BE ENTERED.

1 O rd er, N o. 13- 60319 ( 5th Cir. June 7, 2013)

. 2 Case: 13-60319 Document: 00512271690 Page: 2 Date Filed: 06/12/2013No. 13-60319

Based on thi s n ewly d iscovered Minute Order Entry, D uran-Cruz moved for a rehearing, arguing for the first time that he was sentenced directly to probation without any imprisonment and therefore his conviction d id not c o n s t itute 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 p a r t y m a y file o nly one motion to reconsider, and t he I J c oncluded th a t Duran-Cruz’s earlier request for a rehearing of the bond determination precluded a rehearing of the judgment. S econd, the IJ held that D uran-Cruz had not shown that his motion w a s b a s ed on previously unavailable and undiscoverable e vidence a s required to j ustify reconsideration under 8 C.F.R. § 1 003.23(b)(3). Duran-Cruz applied for an administrative stay of removal and appealed to this court, arguing ( 1 ) t h at the regulations distinguish between pre- and p o s t

- d e cision motions for rehearing and (2) that the Minute Order Entry is material evidence that was previously unavailable. On June 5, 2013, while h is appeal in t his c ourt was pending, Duran-Cruz’s attorney learned that the Government had denied h is application and planned to d e port Duran-Cruz on June 7, 2013. D uran-Cruz filed a n E mergency Motion for Stay o f Removal with t his court on J une 6

. The following day, we granted a temporary stay of removal but not before t h e Government deported Duran-Cruz. Duran-Cruz now asks this court to extend the temporary stay nunc pro tunc

. II Although Congress eliminated the aut o m a tic stay of removal that previously accompanied the filing of an appeal, we retain the inherent authority to iss u e a s t a y o f removal as appropriate. 3 In considering w hether t o issue a

2 U nd er this court’s p reced ent, a conviction m us t carry w ith it a s entence of at leas t one year of inc a r c e r a t i o n , even if not s erved , to be clas s if ied as an aggravated f elony f or the p urp os es of

rem oval. U

ni ted Sta tes v . Ba nda

- Za mora , 178 F. 3d 728, 730 (5th Cir. 1999)

.
3 N ken v . H ol der , 556 U

. S. 418, 435- 36 ( 2009)

. 3 Case: 13-60319 Document: 00512271690 Page: 3 Date Filed: 06/12/2013No. 13-60319

stay, we consider “(1) whether the stay applicant h a s m a d e a strong showing that he is likely to succeed on the merits; (2) w hether t h e applicant will be irreparably injured a bsent a s tay; (3) whether issuance o f the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” 4 A s tay may be justified t o preserve meaningful review, but a s t ay is also an “intrusion into the ordinary p rocesses of administration and judicial r eview” and therefore not to b e g ranted reflexively. 5 F urthermore, we
are mindful that Dura n - C r u z is requesting a stay nunc pro tunc

. Courts have sanctioned o rders nunc pro tunc in other immigration contexts only i n “certain exceptional cases.” 6 It is far from clear that this court has the authority to issue

a n unc p ro tunc order in t his precise c o ntext, 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 c onsider in granting a stay, the first two a re “the most critical.” 8 In particular, the petit i o n e r m u s t d emonstrate “more t han a mere possibility”of success on the merits. 9 In his underly i n g a ppeal, Duran-Cruz

4 Id. at 434 ( quoting H i l ton v . Bra unski l l , 481 U. S. 770, 776 (1987) ) ( internal quotation
m ark s om itted )

.

5 Id. at 427 ( quoting V a . P etrol eum Jobbers A ss’n v . Fed. Pow er Com m ’n , 259 F. 2d 921, 925 ( D

. C. Cir. 1958) ( p er curiam ) ) ( internal quotation m ark s om itted )

.

6 E. g. , Ia v orski v . IN

S , 232 F. 3d 124, 130 n. 4 ( 2d Cir. 2000) (citing Ba ta ni c v . IN S , 12 F. 3d 662, 667- 68 ( 7th Cir. 1993) ) ; cf

. Fa nel l i v . H

ensl ey ( In re Tri angl e Chem s. , Inc. ), 697 F. 2d 1280, 1289 ( 5th Cir. 1983) ( noting that a bank rup tcy court’s equitable p ow ers “m ay p erm it nunc p ro tunc ap p ointm ent [ of a trus tee] in rare or excep tional circum s tances ”)

.

7 See Rom ero- Rodri guez v . G onz a les , 488 F

. 3d 672, 678- 79 & n. 8 ( 5th Cir. 2007) ( hold ing that the court’s n u n c p r o tunc authority d oes not extend to correcting the BIA’s legal errors and noting that exercis e of that p ow er m ay be w arranted only in excep tional circum s tances , s uch as avoid ance of a cons titutional violation)

.

8 N ken , 556 U

. S. at 434.

9 Id. 4 Case: 13-60319 Document: 00512271690 Page: 4 Date Filed: 06/12/2013No. 13-60319

challenges the d enial of a rehearing, which this court r e views under the “highly deferential abuse-of-discretion standard.” 1 0 Therefore, t h e first factor of the stay analysis rests on whether Duran-Cruz i s likely to succeed in his claim that the IJ a bused its discretion. We conc l u d e t h a t 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 t hat he had exhausted his only opportunity for a rehearing. T h e o n e - m o t i o n l i m i t a p p l i e s only to motions f

iled after entry of a “final administrative order of r emoval, deportation, or exclusion.” 1 1 Because Duran-Cruz’s earlier motion w as filed and denied before the IJ issued t he final order of removal, his subsequent motion for reconsideration was likely not barred. 1 2 However, Duran-Cruz must also show that the IJ a bused i t s discretion by holding that the Minute Order Entry did not justify a rehearing pursuant to 8 C.F.R. § 1 003.23. In pertinent part, that regulation p rovides t hat “[a] motion to reopen will not be gr a n t e d u nless t he Immigration Judge i s satisfied that evidence sought to be offered is material and was not available and c oul d not have been discovered or presented at the former hearing.” 1 3 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 i t a f t e r a search of the county’s computer system with the help of the count y clerk. We have never c onsidered the meaning of “previously unavailable and not discoverable” u n der § 1003.23, and we need not address the question here. Even

1 0 Rodri guez
- M

a nz a no v . H

ol der , 666 F. 3d 948, 952 ( 5th Cir. 2012) ( quoting G om ez Pa la ci os v . H

ol der , 560 F. 3d 354, 358 ( 5th Cir. 2009) ) ( internal quotation m ark s om itted )

.
1 1 8 C. F. R. § 1003. 23( b) ( 1)

.
1 2 Id.

1 3 Id. § 1003. 23( b) ( 3)

. 5 Case: 13-60319 Document: 00512271690 Page: 5 Date Filed: 06/12/2013No. 13-60319

i f t h e c ircumstances were to meet t hose criteria, i t is unlikely that the IJ’s refusal to grant a rehearing based on t he Minute Order Entry was an abuse of discretion. 1 4 Viewed in the c ontext of the e vidence a s a whole, t he probative weight of the Minute Order Entry is diminished. T ennessee l aw mandates that a s entence of probation be accom p a nied by a suspended t erm of imprisonment. 1 5 The applicable Tennessee statute states in pertinent part that [i]f the court determines th a t a period of probation is appropriate, the court shall s entence the defendant to a specific sentence but shall suspe n d t h e execution of all or part of t he s entence and place t h e defendan t on supervised o r u nsupervised probation e ither immediately or after a period of confinement for a period of time n o less than the minimum sentence allowed u nder the classification and up to and including the statutory maximum time for the class of the conviction offense. 1 6 Accordingly, Te n n e ssee courts have held “that there is no such thing as p r obation without a suspension of the sentence.” 1 7 Furthermore, t he re c o r d contains a mple evidence t h at Duran-Cruz was sentenced to six years of incarceration, which the s t a t e j udge suspended. In a ddition to the judgment relied on by the IJ, the r ecord before this court contains a completed “Probation Order” indicating t hat Duran-Cruz was sentenced to a six-year term of i mprisonment that w as suspended in favor of six years of p robation. Agains t this evidence, Duran-Cruz brings a single docket entry by the Tennessee clerk t h a t a mbiguously omits mention of any suspended sentence of incarceratio n .

1 4 See i d. ( “The Im migration Jud ge has d is cretion to d eny a m otion to reop en even if the
m oving p arty has es tablis hed a p rim a f acie cas e for relief

. ”)

.
1 5 T E N N

. C ODE A N N

. § 40- 35- 303 ( 2012)

.
1 6 I d. § 40- 35- 303( c) ( 1) ( em p has is ad d ed )

.
1 7 Sta te v . McCa m m on , 62 3 S

. W

. 2 d 133, 135 ( Tenn. Crim

. A p p . 1981) ( citing Sta te v . Ki ng , 603 S. W. 2d 721, 725 ( Tenn. 1980) )

. 6 Case: 13-60319 Document: 00512271690 Page: 6 Date Filed: 06/12/2013No. 13-60319

Admittedly, the M i n u te O rder 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 wh o le, it is a slender reed from which to conclude that the IJ abused its discretion by denying a rehearing. 1 8 The request for a stay nunc pro tunc is DENIED. It is further ordered t h a t the temporary s tay previously g ranted is now dissolved, and the request for a stay pending appeal is DENIED as MOOT.

1 8 See G om ez - Pa l a ci os v . Hol der , 560 F. 3d 354, 358 ( 5th Cir. 2009) ( “[ T] his court m us t af f irm the BIA’s d ecis ion as long as it is not cap ricious , without found ation in the evid ence, or otherw is e s o irrational that it is arbitrar y rather than the res ult of any percep tible rational ap p roach. ”)

. 7 Case: 13-60319 Document: 00512271690 Page: 7 Date Filed: 06/12/2013