Hizam v. Clinton et al
Filing
29
MEMORANDUM AND ORDER denying 26 Motion to Stay. For the foregoing reasons, the defendants' motion for a stay pending consideration of appeal and, if an appeal is filed, pending resolution of that appeal (Docket No. 27), is denied on the condi tion that the plaintiff does not seek derivative status for his family members until an appeal, if filed, is resolved. If an appeal is not filed, this condition dissolves on the day after the final day on which the State Department may file a notice of appeal. (Signed by Magistrate Judge James C. Francis on 9/20/2012) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
ABDO HIZAM,
:
:
Plaintiff,
:
:
- against :
:
HILLARY CLINTON, Secretary of
:
State, United States Department of :
State, UNITED STATES DEPARTMENT OF :
STATE and THE UNITED STATES OF
:
AMERICA,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
11 Civ. 7693 (JCF)
MEMORANDUM
AND ORDER
Plaintiff Abdo Hizam brought this action against defendants
Hillary Clinton, the United States Department of State, and the
United States of America (collectively the “State Department”)
seeking a judgment declaring that he is a citizen of the United
States and an order compelling the defendants to re-issue his
Consular Report of Birth Abroad for a Citizen of the United States
(“CRBA”) and passport.
(Memorandum Opinion and Order dated July
27, 2012 (“July 27 Order”) at 1).
The parties consented to my
exercise of jurisdiction for all purposes, and on July 27, 2012, I
granted Mr. Hizam’s motion for summary judgment and denied the
State Department’s cross-motion for summary judgment.
(July 27
Order at 2).
On August 21, 2012, the State Department filed a motion
1
requesting that I stay the July 27 Order while it considers whether
to appeal, and if an appeal is filed, extend the stay pending
resolution of that appeal.
(Memorandum of Law in Support of
Defendants’ Motion for Stay Pending Consideration of Appeal (“Def.
Stay Memo.”) at 1, 13).
Mr. Hizam opposes the application.
(Memorandum in Opposition to Defendant’s Motion for a Stay Pending
Expiration of the Time for Filing a Notice of Appeal and Pending
Appeal Should a Notice of Appeal Be Filed (“Pl. Stay Memo.”)).
For the reasons that follow, the State Department’s motion is
denied.
Background
The facts of the case are set out in the July 27 Order, with
which I assume familiarity.
Nevertheless, some background will be
helpful in understanding the following discussion.
Mr. Hizam was born in 1980 in Al Mahaqira, Yemen.
Order at 2).
(July 27
At that time, his parents were married, and his
father was a naturalized citizen of the United States.
(July 27
Order at 2). In 1990, Mr. Hizam’s father applied for United States
passports and CRBAs for his children at the United States Embassy
in Sana’a, Yemen and the consular officers issued a CRBA and
passport to Mr. Hizam.
(July 27 Order at 2-3).
Mr. Hizam first came to the United States in 1990 and remained
in this country thereafter.
(July 27 Order at 3).
2
In 1996 and
again in 2001, the State Department renewed Mr. Hizam’s passport.
(July 27 Order at 3).
In May 2002, Mr. Hizam traveled to Yemen where he married and
had two children, both of whom currently reside there.
Order at 4).
(July 27
In 2009, while Mr. Hizam was in Yemen visiting his
wife and children, he applied for CRBAs and passports for his two
children at the United States Embassy in Sana’a, Yemen.
Order at 4).
(July 27
Embassy employees suggested to Mr. Hizam that there
was an unspecified issue with his passport and instructed him to
contact the State Department upon his return to the United States.
(July 27 Order at 4).
On April 18, 2011, the State Department informed Mr. Hizam by
letter of its opinion that it had committed an error in calculating
the
physical
presence
citizenship at birth.
requirement
for
his
(July 27 Order at 4).
acquisition
of
Subsequently, the
State Department informed Mr. Hizam that his CRBA had been canceled
and
his
passport
documents.
revoked
and
requested
(July 27 Order at 5).
the
return
of
those
On May 19, 2011, he complied.
(July 27 Order at 5).
On October 28, 2011, Mr. Hizam filed the instant suit and both
parties subsequently cross-moved for summary judgment.
Order at 5).
(July 27
In the July 27 Order, I held, first, that prior to
the passage of 8 U.S.C. § 1504 in 1994, no statutory authority
3
permitted
the
State
Department
to
revisit
an
individual’s
nationality determination and revoke a passport or cancel a CRBA.
(July 27 Order at 9).
Rather, prior to the enactment of Section
1504, the only grounds for revoking a passport were on the basis of
fraud, misrepresentation, or some other exceptional reasons such as
national security.
(July 27 Order at 9-10).
Second, I held that
Section 1504 may not be applied retroactively because it would
“upset the settled expectations of the entire class of persons who
received CRBAs prior to the passage of [Section 1504].”
Order at 16).
(July 27
Therefore, permitting retroactive application of
Section 1504 would be inconsistent with the second prong of the
analysis required by Landgraf v. USI Film Products, 511 U.S. 244
(1994).
(July 27 Order at 14-15).
Third, I found that the State
Department had no other authority to revoke proof of Mr. Hizam’s
citizenship.
(July 27 Order at 18-20).
Therefore, I held that in
absence of authority for the State Department to revoke Mr. Hizam’s
citizenship documents, he is entitled to the return of his CRBA and
could presumably apply for and obtain a new passport.
(July 27
Order at 21).
Discussion
A.
Authority to Issue a Stay
The State Department has requested a stay of the July 27 Order
pending its decision whether to appeal and, if an appeal is taken,
4
pending resolution of that appeal.1
(Def. Stay Memo. at 1, 13).
Mr. Hizam argues that Rule 62 of the Federal Rules of Civil
Procedure provides no basis for obtaining a stay while the State
Department decides whether to appeal.
(Pl. Stay Memo. at 2).
The Supreme Court has described the federal court’s power to
issue
a
stay
as
“inherent,”
part
of
a
court’s
“traditional
equipment for the administration of justice,” and “a power as old
as the judicial system of the nation.”
Nken v. Holder, 556 U.S.
418, 426-27 (2009) (internal quotation marks omitted).
While Rule
62 outlines the mechanism for how a stay may be obtained while an
appeal is pending, it does not limit the district court’s inherent
power to issue a stay in a manner that does not fall within the
scope of the Rule. See e.g., Marcoux v. Farm Service and Supplies,
Inc., 290 F. Supp. 2d 457, 485 (S.D.N.Y. 2003) (“Whether to grant
a stay without a supersedeas bond is a matter that remains within
this Court’s sound discretion.”); see also Federal Prescription
Service, Inc. v. American Pharmaceutical Association, 636 F.2d 755,
760-61 (D.C. Cir. 1980) (holding Rule 62(d) does not limit district
court’s power to issue unsecured stays through exercise of its
sound discretion); Alexander v. Chesapeake, Potomac and Tidewater
1
The State Department requests an initial stay of 60 days to
accord with the time Congress has provided the Government to
consider whether to appeal. (Def. Stay Memo. at 13; 28 U.S.C. §
2107(b); Fed. R. App. P. 4(a)(1)(B)).
5
Books, Inc., 190 F.R.D. 190, 192 (E.D. Va. 1999) (Rule 62(d)
“leaves unimpaired a district court’s inherent, discretionary power
to stay judgments pending appeal on terms other than a full
supersedeas bond.”).
Thus, courts have stayed their orders even
when an appeal is not yet pending.
See National Immigration
Project of the National Lawyers Guild v. United States Department
of Homeland Security, 842 F. Supp. 2d 720, 731, 733 (S.D.N.Y. 2012)
(granting government’s motion for 60-day stay while it considered
whether to appeal); United States ex rel. Carson v. Taylor, 403 F.
Supp. 747, 757 (S.D.N.Y. 1975) (considering government’s request
for 30-day stay while government decided whether to appeal); see
also Mocanu v. Mueller, Nos. 07-0445, 07-3223, 07-2718, 07-2859,
2008 WL 570953, at *1 (E.D. Pa. Feb. 28, 2008) (addressing merits
of government’s motion for stay while government decided whether to
appeal); but see United States v. One 1962 Ford Galaxie Sedan, 41
F.R.D. 156, 157-78 (S.D.N.Y. 1966) (finding no power to grant stay
absent notice of appeal).
Therefore, I will entertain the merits
of the State Department’s motion.
B.
Merits of the Stay Application
“A stay is not a matter of right, even if irreparable injury
might otherwise result.
It is instead an exercise of judicial
discretion, and [t]he propriety of its issue is dependent upon the
circumstances of the particular case.”
6
Nken, 556 U.S. at 433
(alteration in original) (internal quotation marks and citation
omitted).
In deciding whether to issue a stay, a court considers
four factors:
(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.
Id. at 434 (internal quotation marks omitted).
“The first two
factors . . . are the most critical,” id., and these factors have
typically been evaluated on a sliding scale, so that a strong
showing that the applicant is likely to succeed on the merits
excuses a weaker showing of irreparable injury.
Reno, 309 F.3d 95, 101 (2d Cir. 2002).
See Mohammed v.
Nevertheless, the Supreme
Court has recently emphasized that the applicant must demonstrate
that both factors are satisfied, so that even if a party makes a
robust showing that it is likely to succeed on appeal, it still
must also show that “irreparable injury is likely.”
Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008)
(emphasis omitted).2
“The party seeking the stay bears a heavy
2
Winter dealt with the showing required for the issuance of
a preliminary injunction rather than for a stay pending appeal.
However, the test for a stay “is essentially the same” as the test
for a preliminary injunction.
Citizens for Responsibility and
Ethics in Washington v. Office of Administration, 593 F. Supp. 2d
156, 159 n.1 (D.D.C. 2009)(internal quotation marks omitted); see
also Nken, 556 U.S. at 434 (“There is substantial overlap between
7
burden to establish[] a favorable balance of these factors.”
National Resources Defense Council v. United States Food and Drug
Administration,
(S.D.N.Y.
Aug.
F. Supp. 2d
8,
2012)
, 2012 WL 3229296, at *10
(alteration
in
original)
(internal
quotation marks omitted); see Shays v. Federal Election Commission,
340 F. Supp. 2d 39, 41 (D.D.C. 2004) (noting “standards required to
justify the extraordinary remedy of a stay” are “stringent”).
1.
Likelihood of Success on the Merits
Although the oft-repeated standard indicates that an applicant
must “ma[ke] a strong showing that he is likely to succeed on the
merits,” Hilton v. Braunskill, 481 U.S. 770, 776 (1987), if “a
serious legal question is involved,” a stay may issue when the
movant “present[s] a substantial case on the merits . . . and
show[s] that the balance of the equities weighs heavily in favor of
granting the stay.”
LaRouche v. Kezer, 20 F.3d 68, 72-73 (2d Cir.
1994); see also Sutherland v. Ernst & Young LLP, __ F. Supp. 2d __,
2012 WL 751970, at *1 (S.D.N.Y. March 6, 2012); cf. Citigroup
Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd.,
598 F.3d 30, 38 (2d Cir. 2010) (holding, in preliminary injunction
[the stay] factors and the factors governing preliminary
injunction[.]”).
Winter’s clarification of the standard,
therefore, applies to stay applications.
Consequently, cases
discussing the factors a court must weigh in deciding a preliminary
injunction motion are helpful in analyzing this stay application.
8
context,
Winter
does
not
foreclose
“flexible
standard”
of
“assessing a movant’s likelihood of success on the merits”).
a.
Inherent Authority to Revoke
The State Department first argues, as it did in its motion for
summary judgment, that it has authority to revoke erroneously
issued citizenship documents independent of 8 U.S.C. § 1504. (Def.
Stay Memo. at 2-6). The July 27 Order considered and rejected this
argument.
(July 27 Order at 17-20); see Schwartz v. Dolan, 159
F.R.D. 380, 384 (N.D.N.Y. 1995) (“Mere repetition of arguments
previously considered and rejected cannot be characterized as a
‘strong showing’ [of likelihood of success on the merits].”); see
also International Equity Investments, Inc. v. Opportunity Equity
Partners,
Ltd.,
No.
05
Civ.
(S.D.N.Y.
April
26,
2006)
2745,
(holding
2006
WL
1116437,
applicant
failed
at
*3-4
to
show
likelihood of success on merits when it presented only arguments
that court had already rejected); Shays, 340 F. Supp. 2d at 45-47
(same).
The State Department claims that the July 27 Order rejecting
this argument conflicts with Haig v. Agee, 453 U.S. 280 (1981).
(Def. Stay Memo. at 2-6).
The State Department argues that Agee
held that the Secretary of State has authority to deny or revoke a
passport for reasons not expressly authorized in the Passport Act
of 1926.
(Def. Stay Memo. at 2).
9
While this may be technically
correct, it does not aid the State Department.
In Agee, the
Supreme Court found that although the text of the Passport Act did
not provide the Secretary of State the authority to deny or revoke
passports, 453 U.S. at 290, the Secretary did have the authority to
do so for serious national security and foreign policy reasons.
Id. at 306.
This authority stems from the Secretary’s “consistent
administrative construction of [the Passport Act of 1926] . . .
especially [] in the areas of foreign policy and national security,
where congressional silence is not to be equated with congressional
disapproval.”
Id. at 291.
The Court surveyed the history of
passport control and concluded there is “since the earliest days of
the Republic [] congressional recognition of Executive authority to
withhold passports on the basis of substantial reasons of national
security and foreign policy,” id. at 293, and that such a policy
was consistently enforced, id. at 303.
Therefore, the Court held
that this policy was “sufficiently substantial and consistent” to
compel the conclusion that Congress had approved it.
Id. at 306
(internal quotation marks omitted).
In this case, the State Department has not made a similar
showing of a consistent administrative construction of a policy to
revoke
erroneously
issued
CRBAs
and
passports.
The
State
Department has not identified any regulations in effect at the time
Mr. Hizam received his CRBA that provided for revocation based on
10
mere agency error.
(Pl. Stay Memo. at 6).
The State Department
now cites Magnuson v. Baker, 911 F.2d 330 (9th Cir. 1990), as
evidence of its policy of revoking erroneously issued passports.
(Def. Stay Memo. at 5-6). However, a single example of revocation,
subsequently invalidated, is insufficient to show a consistent
administrative policy.
The State Department also contends that Weinstein v. Albright,
261 F.3d 127 (2d Cir. 2001), “re-affirmed the authority of the
Secretary of State to revoke passports even where the revocation is
not expressly authorized by statute.”
(Def. Stay Memo. at 4).
Weinstein concerned the statutory delegation of discretionary power
to the Secretary of State to revoke passports for those certified
as being in arrears in child support.
261 F.3d at 133.
There, the
court cited Agee for the principle that the Secretary should be
granted
broader
latitude
in
creating
a
policy
for
passport
revocation when it is acting pursuant to a statutory delegation of
discretionary power than when it is acting pursuant to a nonstatutory
power
Weinstein’s
Department’s
as
in
discussion
contention
261
Agee.
of
Agee
here
F.3d
does
because
at
not
the
139.
support
power
Therefore,
the
to
State
revoke
erroneously issued passport was neither expressly authorized by
statute nor a consistently followed and enforced policy at the time
Mr. Hizam was issued his CRBA.
11
b.
Retroactive Application of Section 1504
The State Department’s second argument -- that Section 1504
may operate retroactively because it does not affect a “vested
right” (Def. Stay Memo. at 7-8) -- was expressly abandoned in its
motion for summary judgment.
(Pl. Stay Memo. at 4; July 27 Order
at 17; Defendants’ Memorandum of Law in Opposition to Plaintiff’s
Motion for Summary Judgement and in Support of Defendants’ Cross
Motion for Summary Judgment at 19).
Accordingly, the State
Department has not shown a likelihood that the Second Circuit will
reach the merits of this argument. See In re Nortel Networks Corp.
Securities Litigation, 539 F.3d 129, 133 (2d Cir. 2008) (“[T]he
circumstances normally do not militate in favor of an exercise of
discretion to address . . . new arguments on appeal where those
arguments were available to the [parties] below and they proffer no
reason
for
their
failure
to
raise
the
arguments
below.”
(alteration in original) (internal quotation marks omitted)).
Even
if
the
Second
contention is flawed.
Circuit
were
to
entertain
it,
this
The State Department argues that Mr. Hizam
has no “vested right” in retaining an erroneously issued Government
document
and
that
in
other
circumstances
the
Government
is
permitted to fix mistakes retroactively. (Def. Stay Memo. at 7-8).
The retroactive effect of a statute is measured by a “commonsense”
judgment
about
whether
a
new
12
provision
attaches
new
legal
consequences to events completed in the past drawing on “familiar
considerations of fair notice, reasonable reliance, and settled
expectations.”
INS v. St. Cyr, 533 U.S. 289, 321 (2001) (internal
quotation marks omitted).
As discussed in the July 27 Order,
permitting the retroactive application of Section 1504 would “upset
the settled expectations of the entire class of persons who
received CRBAs prior to the passage of [Section 1504].”
(July 27
Order at 16).
Nevertheless, neither party denies that this case involves
serious legal questions regarding the authority of the State
Department to revoke erroneously-issued citizenship documentation
independent of Section 1504 and the retroactive application of
Section 1504.
See Schwartz, 159 F.R.D. at 384 (noting some courts
apply “serious legal issue” test as alternative to evaluating
likelihood their decisions would be overturned on appeal).
Second
Circuit
questions.
has
not
directly
addressed
either
of
The
these
See National Immigration Project, 842 F. Supp. 2d at
733 (“[W]here the district court has had to address issues as to
which the appellate courts have provided little direct guidance,
the likelihood that an appellate court will take a different
approach increases.”).
Moreover, the appeal will likely present
only questions of law, which the Second Circuit will review without
deference.
Although the State Department may not have made a
13
strong showing of likelihood of success on appeal, its arguments
are far from frivolous.
Therefore, the success of its application
depends on whether the State Department can “show that the balance
of the equities weighs heavily in favor of granting the stay.”
LaRouche, 20 F.3d at 72-73 (internal quotation marks omitted).
2.
Irreparable Injury
To support a stay, the applicant must show “‘an injury that is
neither remote nor speculative, but actual and imminent,’ and ‘one
that that cannot be remedied’ if the party seeking the stay is
granted
relief
on
appeal.”
United
States
ex
rel.
Anti-
Discrimination Center of Metro New York, Inc. v. Westchester
County, New York, No. 06 Civ. 2860, 2012 WL 1758109, at *3
(S.D.N.Y.
May
17,
2012)
(quoting
Grand
River
Enterprise
Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)).
Six
The
potential for irreparable injury should be evaluated taking into
account the possibility that the ruling sought to be stayed is
erroneous.
See National Immigration Project, 842 F. Supp. 2d at
733 (“Thus, failure to stay the disclosure required by the Order
would cause the Government irreparable injury if the ruling [were]
erroneous.”).
The State Department claims it will suffer irreparable injury
if a stay is not granted because it will be required to issue a
CRBA and, presumably, a passport, to an individual who “even the
14
Court recognizes is not a citizen or national of the United States”
and is thereby ordered to violate the law.
12).
(Def. Stay Memo. at 11-
This argument is premised on a misunderstanding of the July
27 Order.
In that order, I found that the State Department lacked
authority to revoke Mr. Hizam’s CRBA, and ordered its return.
(July 27 Order at 21).
Since Mr. Hizam’s CRBA is conclusive proof
of
22
citizenship
under
U.S.C.
§
2705,
it
binds
the
State
Department as to Mr. Hizam’s citizenship status. (July 27 Order at
21).
Therefore, if Mr. Hizam were to apply for and obtain a new
passport, the State Department is not being required to violate the
law because Mr. Hizam would be able to establish his citizenship
through
his
CRBA.
Moreover,
this
alleged
harm
is
hardly
irreparable and can be easily remedied if the State Department were
to file an appeal and win.
If the Second Circuit were to find that
the State Department has the authority to revoke Mr. Hizam’s
citizenship documents, then the State Department can do so.
There
is no reason to believe that Mr. Hizam would not comply with such
a decision, as he has demonstrated his willingness to comply with
a revocation directive in the past.
(July 27 Order at 5; Pl. Stay
Memo. at 8).
The State Department also contends that absent a stay it will
suffer irreparable injury because the July 27 Order undermines its
“sole discretion” to withhold passports. (Def. Stay Memo. at 11).
15
This is simply a restatement of its disagreement with the July 27
Order.
The July 27 Order found that the State Department did not
have the authority to revoke Mr. Hizam’s citizenship documents and
ordered the return of Mr. Hizam’s CRBA.
(July 27 Order at 21).
Being required to comply with a court order is insufficient in and
of itself to constitute irreparable harm.
Defense Council,
F. Supp. 2d at
See National Resources
, 2012 WL 3229296, at *12
(“[A]ccepting the Government’s argument would almost always result
in a finding of irreparable harm whenever an agency was required to
comply with a court order.
As a consequence stays pending appeal
would become routine, conflicting with the rule that such relief
should be ‘extraordinary.’” (internal citation omitted)).
In short, the State Department has not shown that it will be
irreparably harmed if a stay is not granted.
3.
Injury to the Plaintiff
The State Department acknowledges that if a stay is issued,
Mr. Hizam faces hardship from his inability to travel.
Memo. at 13).
in
Yemen
and
(Def. Stay
Mr. Hizam has a wife and two young children who live
whom
he
has
not
seen
in
over
three
years.
(Declaration of Abdo Ali Hizam dated Aug. 24, 2012 (“Hizam Decl.”),
attached as Exhibit 1 to Pl. Stay Memo., ¶ 4; Pl. Stay Memo. at 8).
“Loss of the ability to travel abroad is itself a harsh penalty,
made all the more devastating if it means enduring separation from
16
close family members living abroad.”
Vartelas v. Holder,
, 132 S. Ct. 1479, 1488 (2012) (footnote omitted).
U.S.
An appeal
takes time and if the State Department were to decide to appeal,
Mr. Hizam could face a year or more without the ability to travel
abroad and see his family.
(Pl. Stay Memo. at 8).
Mr. Hizam also contends that without his CRBA he is unable to
offer potential employers the necessary documentation to establish
his eligibility to work in the United States.
Pl. Stay Memo. at 9).
(Hizam Decl., ¶ 9;
Under federal regulations, employers are
required to document proof of citizenship or authorization to work
in the United States for every employee they hire. (Pl. Stay Memo.
at 9).
This is of immediate concern, as Mr. Hizam is currently
seeking employment.
(Hizam Decl., ¶ 9; Pl. Stay Memo. at 9).
If
a stay is issued, Mr. Hizam may face unemployment until an appeal
is filed and resolved.
It is clear, then, that Mr. Hizam is at risk of substantial
harm if a stay is imposed.
4.
Public Interest
The State Department claims a stay is in the public interest
because Mr. Hizam may seek derivative status for his wife and
children which would permit them to travel to the United States
ahead of relatives of legal permanent residents who have been
waiting for immigration visas for years. (Def. Stay Memo. at 12).
17
If the State Department were later to win on appeal, Mr. Hizam’s
family
could
face
the
unfortunate
circumstances
of
having
detrimentally relied on Mr. Hizam’s CRBA only to be deported.
(Def. Stay Memo. at 13).
Mr. Hizam asserts that he is not in a
position now to bring his wife and children to the United States.
(Hizam Decl., ¶ 6; Pl. Stay Memo. at 8).
While the State
Department raises valid concerns, they can be addressed without
granting a stay, as will be discussed below.
On the other hand, there is a broad public interest in the
State Department following the law.
Jolly v. Coughlin, 907 F.
Supp. 63, 65 (S.D.N.Y. 1995) (noting the “strong public interest in
following the law”).
In addition, arguably, there is a public
interest in Mr. Hizam finding employment, for which he requires the
documentation that have been revoked by the State Department.
Therefore, the public interest favors denying a stay.
C.
Relief
It is clear that the State Department has not met its heavy
burden of “establishing a favorable balance of [the four stay]
factors.”
Barcia v. Sitkin, No. 79 Civ. 5831, 2004 WL 691390, at
*1 (S.D.N.Y. March 31, 2004).
Indeed, given the substantial harm
that further delay in complying with the July 27 Order could have
on Mr. Hizam, the balance of equities would not “weigh heavily in
favor”
of
a
stay
even
if
the
18
State
Department
had
shown
a
substantial case on the merits.
LaRouche, 20 F.3d at 72-73.
Therefore, the State Department’s request is denied.
However, a denial of a stay need not be unconditional.
See
e.g., Statharos v. New York City Taxi and Limousine Commission, 198
F.3d 317, 320 (2d Cir. 1999) (noting court had denied stay pending
appeal on certain conditions).
The State Department raises a
legitimate concern about Mr. Hizam’s wife and children obtaining
derivative status through Mr. Hizam and coming to the United
States, only to be later removed if the July 27 Order is overturned
on appeal.
To avert this situation, the denial of a stay is
conditioned on Mr. Hizam not seeking derivative status for his
family members until an appeal, if lodged, is resolved. This would
also alleviate the State Department’s concern about Mr. Hizam’s
family being processed for citizenship ahead of other qualified
applicants, only to be later deported.
Conclusion
For the foregoing reasons, the defendants’ motion for a stay
pending consideration of appeal and, if an appeal is filed, pending
resolution of that appeal (Docket No. 27), is denied on the
condition that the plaintiff does not seek derivative status for
his family members until an appeal, if filed, is resolved.
If an
appeal is not filed, this condition dissolves on the day after the
final day on which the State Department may file a notice of
19
appeal.
SO ORDERED.
ITED STATES MAGISTRATE JUDGE
Dated:
New York, New York
September 20[ 2012
Copies mailed this date:
Nancy B. Morawetz[ Esq.
Alina Das, Esq.
Semuteh Freeman, Legal Intern
Kevin Terry, Legal Intern
Washington Square Legal Services, Inc.
245 Sullivan Street
New York, NY 10012
David Bober, Esq.
U.S. Attorney's Office, SDNY
86 Chambers Street
New York, NY 10007
20
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