Obale: Staying Period Of Voluntary Departure

Obale v. Gonzales
No. 05-1109
Precedential
June 22, 2006
http://www.ca3.uscourts.gov/opinarch/051109p.pdf

The Third Circuit ruled that it does have the power to extend a period of voluntary departure and will apply the same standard as for deciding whether to issue a stay of a removal order. The standard, by the way, is:

(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. Douglas v. Ashcroft, 374 F.3d 230, 233 (3d Cir. 2004).

The Third Circuit left unresolved the question of whether a request for a stay of removal implicitly also asks for a stay of the voluntary departure period. It's in footnote 10 of the opinion.

The Third Circuit rejected the government's unusual argument that anyone with a voluntary departure order was not able to appeal until they overstayed the voluntary departure period. The Third Circuit rightfully tossed that proposal into the trash. (It would have had a draconian effect on litigants who would need to take the ultimate risk of breaking their promise to leave by a certain date just to get judicial review.)

On the merits, the asylum claim lost because the siblings' asylum applications did not mention what this person suffered and the IJ felt it should have been corroborated or at least the lack of that corroboration should have been explained.