Godfrey N. Nwakanma v. JOHN ASHCROFT, Attorney General

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0436P (6th Cir.)
File Name: 03a0436p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GODFREY N. NWAKANMA,
Petitioner,
v.
JOHN ASHCROFT, Attorney
General,
Respondent.
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No. 03-4317
Decided and Filed: December 10, 2003
Before: KENNEDY, MARTIN, and MOORE, Circuit
Judges.
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OPINION
_________________
PER CURIAM. The petitioner, a native and citizen of
Nigeria, sought asylum, withholding of removal, and relief
under the Convention Against Torture. The Board of
Immigration Appeals summarily affirmed the immigration
judge’s denial of all such relief, but granted the petitioner
permission to voluntarily depart within 30 days of the date of
the order or within any extension granted by the district
2 Nwakanma v. Ashcroft No. 03-4317
director. The petitioner seeks review of that decision. On the
last day prior to the expiration of the period for voluntary
departure, the petitioner filed in this court two motions: 1) a
motion to stay voluntary departure pending adjudication of
the petition for review, and 2) a motion to stay removal
pending judicial review. The respondent answers that he does
oppose a stay of voluntary departure, but that he does not
oppose a stay of removal at this time.
While this court has previously concluded that a stay of
removal may be granted upon balance of the four general
factors for injunctive relief, see Bejjani v. INS, 271 F.3d 670,
688 (6th Cir. 2001), whether this injunctive power extends to
stays of the period allowed for voluntary departure is an issue
of first impression in this circuit. The only circuit to address
this issue previously has held that the equitable power of the
courts of appeals extends to stays of voluntary departure. See
El Himri v. Ashcroft, 344 F.3d 1261 (9th Cir. 2003) (adopting
Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1175 (9th Cir.
2003) (Berzon, J., concurring). We find the Ninth Circuit’s
reasoning persuasive. Voluntary departure is a discretionarily
granted alternative to mandatory removal whereby removable
aliens may leave the country at their own expense and thereby
avoid the penalties that follow on forced removal. A failure
to voluntarily depart once voluntary departure has been
granted carries additional penalties that do not attend on
forced removal. Thus, an alien who has been granted
voluntary departure who wishes to have her case reviewed
will, if no stay of that voluntary departure period is granted,
suffer additional penalties and be in a worse position than an
alien who has been denied voluntary departure in the first
instance. Asylum applicants with potentially meritorious
cases establishing their genuine fear of persecution in their
home countries will face either returning to those countries
and possibly life-threatening persecution or staying in the
United States, letting the clock run out on their voluntary
departure periods, and suffering the penalties that attach. A
stay of voluntary departure pending appellate review should
therefore be available on the same showing that authorizes a

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No. 03-4317 Nwakanma v. Ashcroft 3
stay of removal pending review. See Bejjani, 271 F.3d at
688.
The respondent’s only challenge to the motion to stay the
voluntary departure period is an argument that we lack
jurisdiction to grant this motion. He points to 8 U.S.C.
§ 1229c(b)(2), which limits the initial term of voluntary
departure, and § 1252(a)(2)(B)(i), which bars review of
substantive determinations of eligibility for voluntary
departure. However, in granting a stay of voluntary
departure, we do not pass on the substance of the decision to
grant voluntary departure; we only stay the immediate
effectiveness of the relief already granted by respondent in his
discretion, to allow the alien petitioner to receive appellate
review. See Zazueta-Carrillo, 322 F.3d at 1176 (Berzon, J.,
concurring).
In evaluating motions to stay, the factors for injunctive
relief are considered: 1) whether the applicant has
demonstrated a likelihood of success 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 interested parties; and 4) where the public interest
lies. Bejjani, 271 F.3d at 688. These factors are balanced;
when a greater showing of irreparable harm in the absence of
a stay is made, a lesser showing of the likelihood of success
on the merits is necessary to support a stay. Michigan
Coalition of Radioactive Material Users, Inc. v. Griepentrog,
945 F.2d 150, 153 (6th Cir. 1991); see also Sofinet v. INS,
188 F.3d 703, 707 (7th Cir. 1999) (using a sliding scale
approach to stays of removal). In the instant case, the
respondent does not oppose a stay of removal; because the
harm to the applicant may be irreparable and because no other
parties will be injured, the balance of harms supports a stay of
removal. Because a stay of removal is appropriate, a stay of
the period for voluntary departure is also appropriate.
Therefore, the motion to stay removal is GRANTED. The
motion to stay the period for voluntary departure is
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GRANTED nunc pro tunc to October 29, 2003, the date
petitioner filed his motion for stay of voluntary departure.
The stays shall expire upon issuance of the final mandate in
this case or as otherwise directed by the court.

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