KALIN DIMITROV and ZDRAVKA DIMITROVA v. JOHN D. ASHCROFT , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2166
K ALIN D IMITROV and Z DRAVKA D IMITROVA ,
Petitioners,
v.
J OHN D. A SHCROFT , Attorney General of the United States,
Respondent.
____________
Petition for Review of Orders of the
Board of Immigration Appeals.
Nos. A73-427-543, A73-427-544.
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S UBMITTED A PRIL 26, 2004—D ECIDED M AY 24, 2004
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Before POSNER , R OVNER , and E VANS , Circuit Judges.
P ER C URIAM . On April 13, 2004, Kalin Dimitrov, an alien
whose appeal from the denial by the Board of Immigration
Appeals of his claim of asylum was pending before this
court, was detained by officers of the Department of
Homeland Security while trying to get an extension of his
work permit. He was told he’d be immediately removed
from the country for overstaying his visa. We do not know
what time of day that was, but at approximately 4:50 p.m.
Dimitrov’s lawyer filed with this court a motion for a stay
of removal and at 5:30 one of our judges granted a tempo-
rary stay pending consideration of the motion by a three-

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2 No. 03-2166
judge panel. Our Clerk’s office was unable, however—
either by emailing, faxing, or phoning—to elicit a response
from anyone involved in the case at either the Justice
Department or the Department of Homeland Security until
9:00 p.m., when a Justice Department attorney emailed the
Clerk’s office that he would check the status of Dimitrov’s
removal the next day. That was done and, fortunately,
Dimitrov had not yet been removed. But the government’s
failure to make a prompt and effective response to the no-
tice of our stay impelled us to order the Justice Department
to show cause why it should not be sanctioned for failing to
ensure that notice of a stay issued after normal business
hours was promptly communicated to the relevant immi-
gration officials.
In its response the government explains that upon
receiving either word that a motion for a stay of removal
may be filed or a copy of the motion, the Justice Depart-
ment’s Office of Immigration Litigation asks the Depart-
ment of Homeland Security about the status of the alien’s
removal and conveys DHS’s reply to the court so that we
can decide how quickly we should act on the motion. If we
then issue a stay the Justice Department attorney assigned
to the case informs the appropriate DHS district office and
the information is recorded in the alien’s file and entered
into a DHS database. The DHS’s Bureau of Immigration and
Customs Enforcement is then responsible for stopping the
removal. For stays issued after normal business hours, DHS
has furnished the Justice Department with a phone number
at which the Department can reach a responsible Bureau
official.
In this case, however, after receiving notice at 8:15 p.m. of
the temporary stay barring Dimitrov’s removal, the Justice
Department’s attorney was unable to reach anyone at the
DHS facility at which Dimitrov was being held. He faxed

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No. 03-2166 3
and emailed a copy of the stay to the Bureau of Immigration
and Customs Enforcement and phoned the Bureau at the
special phone number that had been provided to the Justice
Department. No one answered. He left a voicemail message
rather than making a further effort to reach the Bureau.
This was a potentially fatal breakdown in the established
procedures. The government says it was harmless because
Dimitrov was not in any danger of being removed: “the
Broadview facility where Mr. Dimitrov was being held is
not a 24-hour facility” and “aliens are ordinarily not
removed from that facility after normal business hours.
Aliens are only removed after-hours from that facility if the
alien has completed removal processing and is scheduled to
leave on an after-hours flight.” Dimitrov had just been
detained, so his removal was not imminent. It usually takes
several days to complete the paperwork necessary for
removing an alien, in which event the alien’s lawyer has
plenty of time in which to move for a stay.
Yet situations do arise in which time is of the essence. The
government acknowledges that some aliens, including
Mexican and Canadian nationals, and “certain fugitives”
(we are not told which), are often removed from the U.S. on
the same day they are taken into custody. Without sound
procedures, consistently applied, to ensure that stays are
promptly executed, some aliens may slip through the cracks
and be removed despite the existence of the stay. This has
happened. See, e.g., Lindstrom v. Graber, 203 F.3d 470, 474
(7th Cir. 2000); Singh v. Waters, 87 F.3d 346, 347 (9th Cir.
1996).
Recognizing the insufficiency of its current procedures,
the government has provided the court with a list of
emergency phone numbers of DHS supervisors in the states
of the Seventh Circuit. In addition, the government tells us
that DHS officers in charge of removing aliens often check

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4 No. 03-2166
this court’s docket on the Internet to ascertain that there is
no stay in place before physically removing an alien and
that the Ninth Circuit and DHS have developed a system
whereby the court emails stays to an Internet address at the
local DHS office that is reviewed by DHS officials. When an
email is received, notification is sent to the court so that the
court knows that the Justice Department notified DHS of the
stay. The government expresses its willingness to make a
similar arrangement with this court, and we encourage it do
so.
In view of the government’s constructive response and the
fact that the stay was not in fact violated and that the
government’s carelessness did not impose legal expenses on
the alien, the order to show cause is discharged.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-24-04

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