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Sabra v. Clark - Document No. 7

Sabra v. Clark - Document No. 7

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Published by Justia.com
ORDER denying petitioner's 5 Motion for immediate stay of deportation by Judge Robert S. Lasnik.(RS, ) 2:2006cv01832 Washington Western District Court
ORDER denying petitioner's 5 Motion for immediate stay of deportation by Judge Robert S. Lasnik.(RS, ) 2:2006cv01832 Washington Western District Court

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Published by: Justia.com on Apr 30, 2008
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ORDER DENYING PETITIONER\u2019S MOTION FOR IMMEDIATE STAY OF DEPORTATION PAGE \u2013 1

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

MUHAMAD EHAB SABRA,
Petitioner,
v.
NEIL CLARK,
Respondent.
CASE NO. C06-1832-RSL-JPD

ORDER DENYING PETITIONER\u2019S MOTION FOR IMMEDIATE STAY OF DEPORTATION

Petitioner Muhamad Ehab Sabra is a native and citizen of Israel who is being detained by
U.S. Immigration and Customs Enforcement (\u201cICE\u201d) at the Northwest Detention Center in
Tacoma, Washington. On December 27, 2006, petitioner, proceeding pro se, filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. \u00a7 2241, challenging the lawfulness of his

detention pursuant to Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653

(2001). Petitioner alleges, inter alia, that his detention is unlawful because ICE has no statutory
authority to indefinitely detain him, and because his removal cannot be effectuated because he
has been granted withholding of removal by the Immigration Court. Petitioner also filed a
motion for stay of deportation, seeking to stay his removal from the United States. Although
petitioner asserts that there is no \u201creasonable expectation\u201d that he will be deported because he

Case 2:06-cv-01832-RSL Document 7
Filed 01/05/2007 Page 1 of 4
Sabra v. Clark
Doc. 7
Dockets.Justia.com
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ORDER DENYING PETITIONER\u2019S MOTION FOR IMMEDIATE STAY OF DEPORTATION PAGE \u2013 2

has been granted withholding of removal, he claims that \u201cNeil Clark has a pattern and policy of holding persons granted withholding of removal and sending those persons granted withholding of removal to other countries not sanctioned by any court of law.\u201d (Dkt. #1 at 3). It is therefore ORDERED:

(1) Petitioner\u2019s motion for a stay of deportation is DENIED. The standard of review for
a stay of removal is set forth in Abassi v. INS, 143 F.3d 513 (9th Cir. 1998); see also Andreiu v.
Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001) (en banc) (concluding that \u00a7 1252(f)(2) does not

limit the power of federal courts to grant a stay of removal). UnderA bassi, petitioner must
show either: (1) the probability of success on the merits plus the possibility of irreparable harm,
or (2) that serious legal questions are raised and the balance of hardships tips in petitioners
favor.A bassi, 143 F.3d at 514. The Court finds that petitioner meets neither prong of the

Abassit est .

The post-removal-detention statute, INA \u00a7 241(a), 8 U.S.C. \u00a7 1231(a), provides for the
mandatory detention of aliens awaiting removal from the United States for an initial period of
three months. This three months may be followed by an additional three months discretionary
detention during which detention remains presumptively valid.Zadvydas v. Davis, 533 U.S. 678,
121 S. Ct. 2491, 2505, 150 L. Ed. 2d 653 (2001). InZa d vyd a s, the Supreme Court explained that
after this six-month period, the alien is eligible for conditional release upon demonstrating that
there is \u201cno significant likelihood of removal in the reasonably foreseeable future.\u201dId . The
petitioner has the burden of coming forward with \u201cgood reason to believe there is no significant
likelihood of removal in the reasonably foreseeable future.\u201dId . Then the burden shifts to
respondents to produce evidence which could rebut petitioner\u2019s showing.Id .

Case 2:06-cv-01832-RSL Document 7
Filed 01/05/2007 Page 2 of 4
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ORDER DENYING PETITIONER\u2019S MOTION FOR IMMEDIATE STAY OF DEPORTATION PAGE \u2013 3

Petitioner\u2019s underlying habeas petition challenges the constitutional and statutory
authority of ICE to detain him any further because he was granted withholding of deportation
and cannot be deported. Petitioner asserts that his continued detention is a violation of his
constitutional right to due process of law, as well as a violation of 8 U.S.C. \u00a7 1231(a);

Zadvydas, 533 U.S. at 678. Petitioner\u2019s request for a stay of removal must therefore be denied

because it is inconsistent with the merits of his underlying habeas petition. Petitioner may not
simultaneously maintain that he is entitled to release because his deportation cannot be
effectuated and that he is entitled to a stay of removal because his removal is imminent.
Furthermore, petitioner\u2019s claim that ICE intends \u201cto send [him] to a third country where the
Immigration Judge never ordered\u201d is nothing more than speculation and conjecture.
Accordingly, petitioner cannot demonstrate a probability of success on the merits plus the
possibility of irreparable harm, or that serious legal questions are raised and the balance of
hardships tips in petitioners favor.

(2) The Court expresses no views at this time as to the merits of petitioner\u2019s habeas
petition.
(3) The Clerk is directed to send a copy of this Order to petitioner and to the Honorable
James P. Donohue.
DATED this 5th day of January, 2007.
A
Robert S. Lasnik
United States District Judge
Case 2:06-cv-01832-RSL Document 7
Filed 01/05/2007 Page 3 of 4

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