NATALIA KOUTCHER and OLEXANDER KOUTCHER v. Alberto R. Gonzales

ΠThis opinion was initially released in typescript form.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2610
N ATALIA K OUTCHER and
O LEXANDER K OUTCHER ,
Petitioners,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A73-428-841 & A73-428-842
____________
O N M OTION FOR S TAY OF R EMOVAL
____________
J ULY 23, 2007Œ
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Before E ASTERBROOK , Chief Judge, and P OSNER and R IPPLE ,
Circuit Judges.
R IPPLE , Circuit Judge. The petitioners Natalia and
Olexander Koutcher seek a stay of their removal to Ukraine
pending review in this court. For the reasons set forth in

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1 The original IJ opinion refers to both petitioners as natives of
the USSR and citizens of Ukraine, but also being of Jewish
nationality. It then goes on and, in examining their documenta-
tion of birth and marriage, specifically refers to them as being of
Jewish nationality.
this opinion, the motion is denied because it does not set
forth the information needed by the court to adjudicate
this matter.
The petitioners seek review of the Board of Immigration
Appeal’s decision denying their motion to reopen as
untimely. The Board determined that there was no reason
to invoke the doctrine of equitable tolling. The Board
determined that the petitioners had met the requirements
of alleging ineffective assistance of counsel by presenting
affidavits describing their dealings with counsel and by
providing former counsel the opportunity to respond.
Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). However,
after noting that former counsel vigorously contested
the allegations, the Board concluded that it need not
decide whether ineffective assistance had been shown
because the Koutchers had failed to show sufficient
prejudice to warrant consideration of their late appeal.
Matter of Assaad, 23 I&N Dec. 553 (BIA 2003).
In 1996, the Koutchers admitted that they had over-
stayed their tourist visas but had sought asylum and
withholding of deportation based on their Jewish national-
ity. 1 The IJ found the Koutchers credible but ruled that
they had failed to prove that the threats and attacks
against them by the Ukrainian People’s Self-Defense
group rose to the level of past persecution because they
had failed to establish that the police were unable or
unwilling to protect them. In addition, the IJ held that the

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No. 07-2610 3
petitioners could not establish a well-founded fear of
future persecution because the State Department report
explained that discrimination against people of Jewish
nationality had been confined to the Western portion of
Ukraine (where the petitioners had lived) but that country
conditions had changed significantly in that area for the
better. In addition, the IJ reasoned, they could move to the
Eastern or Southern portions where they would not face
persecution.
The one-page motion does nothing more than make a
general request for a stay. It fails to set forth any informa-
tion in support of the criteria that a petitioner seeking a
stay of removal pending judicial review must demon-
strate. The motion does not demonstrate: (1) a likelihood
of success on the merits; (2) irreparable harm if a stay is
not granted; (3) that the potential harm to the petitioner
outweighs the harm to the Government; and (4) that the
granting of the stay would serve the public interest. Sofinet
v. INS, 188 F.3d 703, 706 (7th Cir. 1999); see also Hor v.
Gonzales, 400 F.3d 482, 484-85 (7th Cir. 2005). Moreover,
Rule 18(a)(2)(B) of the Federal Rules of Appellate Proce-
dure specifically requires that:
(B) The motion must also include:
(i) the reasons for granting the relief requested and
the facts relied on;
(ii) originals or copies of affidavits or other sworn
statements supporting facts subject to dispute; and
(iii) relevant parts of the record.
The stay motion does not explain why the Koutchers
believe that their former attorneys were ineffective or the
resulting prejudice that they suffered. We therefore can-

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4 No. 07-2610
not assess the Koutchers’ likelihood of success on the
merits of the appeal. Nor does the motion explain the harm
the petitioners might suffer if removed pending our
review. We are given no information as to whether
their removal is imminent.
A bare bones motion for stay such as the one presented
here is not a rare occurrence. It is, however, a very unhelp-
ful submission both from the viewpoint of the court and
the viewpoint of the petitioner.
M OTION FOR S TAY D ENIED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-30-07

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