Free Motion to Stay - District Court of California - California

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JAMES TODD BENNETT Attorney of Law P. O. Box 742 El Cerrito, CA 94530 Telephone: (510) 232-6559 California State Bar No. 113009 Attorney for Petitioner GUMARO GARCIA GARNICA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

) ) ) Petitioner, ) ) v. ) ) MICHAEL CHERTOFF, Secretary,) Department of Homeland) Security, NANCY ALCANTAR, Field) Office Director, Immigration) and Customs Enforcement, and) PETER KEISLER, Acting Attorney) ) General of the United States, ) ) Respondent. ) / GUMARO GARCIA GARNICA, I

CASE NO:

NOTICE OF MOTION AND MOTION FOR EMERGENCY STAY OF EXECUTION AND APPLICATION FOR TEMPORARY STAY ORDER PENDING RULING OF MOTION RE PENDING APPEAL [FRAP, RULE 8(a)(1)] [Alien Registration No.: A77 428 624]

INTRODUCTION Gumaro Garcia Garnica, petitioner herein, hereby

respectfully moves the United States District Court for an order staying the execution of the order of removal of petitioner to Mexico pursuant to the administrative alternative order of

removal issued by the Board of Immigration Appeals (hereinafter

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BIA) on or about June 10, 2005 by the Department of Homeland Security, United States of Immigration and Customs Enforcement, San Francisco District (hereinafter DHS/ICE) by and through the San Francisco District deportation unit, sub-district office at 630 Sansome Street, San Francisco, California 94411., pending

disposition of the appeal of the order dismissing his petition for writ of habeas corpus before the United States District

Court, Northern District of California, issued by the Honorable Saundra Brown Armstrong, United States District Judge, on or about September 27, 2007. Appeal to the United States Court of

Appeals for the Ninth Circuit was taken on or about September 27, 2007. This application is made pursuant to Federal Rules of

Appellate Procedure, Rule 8(a)(1). Petitioner further respectfully moves the United States

District Court for a temporary stay of the execution of the aforementioned final order of removal by the respondents,

pending a ruling on the present motion. F3d 963, 964-6 (9th Cir. 2002). Execution of the final order of

Maharaj v. Ashcroft 295

removal

by

respondents

Chertoff and Alcantar is imminent since petitioner is in the custody of said respondents and their delegates at 630 Sansome Street, San Francisco, California to Mexico. order of 94111 for immediate removal

Accordingly, petitioner requests that a temporary stay of execution of the final order of

emergency

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removal and assumption of physical custody of petitioner issue pending a ruling on this motion for stay. II ISSUES ON APPEAL 1. The District court erred in finding it has no

jurisdiction under 8 USC, Section 1252(a)(5), (b)(9) and (g) and failed to apply the precedent in Singh v. Gonzales __ F3d __ (9th Cir. 8/24/07, Case No. 05-16005) where: a. raise by Counsel for petitioner and appellant failed to for review under 8 USC, Section 1252 the

petition

clearly erroneous decision by the Board of Immigration Appeals (hereinafter BIA) that a prior administrative order granting an alternative order of voluntary departure under 8 USC, Section 1229c(b) was not tolled, but had rather expired despite the timely filing of an administrative motion to reopen under 8 USC, Section 1229a(c)(7)(C) within the sixty day voluntary departure period, contrary to controlling precedent in Azarte v. Ashcroft 394 F3d 1278 (9th Cir. 2005) which holds that a timely filing of such a motion within the voluntary departure period tolls the running of time for the grant of voluntary departure. As a

result, petitioner has lost his right to judicial review of the clear error of law under 8 USC, Section 1252 and his right to voluntary departure. b. The District Court has jurisdiction under 28 USC, Petitioner submits that the present petition

Section 2241(c)(3).

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is not barred by Section 106 of Division B - Real ID Act of 2005, Title I (hereinafter RIDA) since the deprivation of constitutional and statutory rights herein have occurred after the entry of the final administrative order and are outside of the scope of the restrictions on habeas corpus jurisdiction placed on this court under Section 106(a) of RIDA, codified at 8 USC, Section

1252(a)(5) and (b)(9).

Singh v. Gonzales, __ F3d __ (9th Cir.

8/24/07, Case No. 05-16005). The error and omission herein occurred after entry of the final administrative order by the BIA on June 10, 2005 and does not require review of the final order itself. District Court has jurisdiction under Singh. III BASIS FOR STAY MOTION The basis for this motion is as follows: Petitioner incorporates by reference his Petition for Writ of Habeas Corpus or, In the Alternative, Order to Show Cause, and the attached exhibits, in support of the factual basis for this motion set forth below. 1. Petitioner is a citizen and national of Mexico, born Accordingly, the

on October 11, 1963 at Apipihuasco, Hidalgo, Mexico, and is presently 43 years old. A farm laborer by background with a

fourth grade education, he is married and has three children, one of whom is a United States citizen who suffers from myopia requiring corrective surgery. After his initial entry into the

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United

States

of

America

on

or

about

February

15,

1989,

petitioner has not returned to Mexico with the exception of a one month period from December of 1990 to January of 1991. He

is now a licensed commercial truck driver, a mortgaged homeowner and has full medical coverage for his son as well as the rest of his family through his employment. 2. In 1998, petitioner named consulted Rose Ann with a "notario" in or

"immigration California.

consultant"

Martinez,

Fresno,

Petitioner was advised by Ms. Martinez that she In the than

would obtain a work permit and "residency" for him. course of three meetings, petitioner paid her no

less

$4,500 and was asked to sign various forms, the contents of which learned were that unknown Ms. to petitioner. had filed Petitioner a Form subsequently I-589 (asylum

Martinez

application) with the Asylum Office of the former Immigration and Naturalization Service. On or about February 17, 1999, the

application was denied and the matter referred to the OIJ/SF. 3. A notice was with to appear and (hereinafter with 8 the USC, NTA) in removal charging

proceedings petitioner

issued

filed under

OIJ/SF,

removability

1182(a)(6)(a)(i),

presence without being admitted or paroled. 4. Ms. Martinez advised petitioner to contact Jorge

Rodriguez Choi, an attorney at law, for representation before the OIJ/SF. Mr. Rodriquez entered an appearance on behalf of

petitioner before the OIJ/SF on or about March 31, 1999.

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1

5. the Form

Petitioner was advised by Mr. Rodriguez to withdraw I-589 and to pursue it in as the relief a under 8 USC, green Section card" with a

1229b(b)(1), application.

describing Pleadings

"ten of

year

form

admissions

designation of Mexico as the country of removal were entered on or about March 26, 1999. Petitioner was not advised of the

nature of asylum application or of any claims he might have thereby, including claims based on economic persecution, before agreeing to the withdrawal of the I-589 on March 26, 1999 by either Mr. Rodriquez or Ms. Martinez. 6. Thereafter, an EOIR 42B was filed along with

supporting exhibits. 7. On or about March 25, 2005, the immigration judge

denied cancellation under 8 USC, Section 1229b(b)(1) under 8 USC, Section 1229b(b)(1)(B) due to assistance in the unlawful entry of petitioner's spouse and (D) due to a lack of extreme and unusual hardship to a qualifying relative, his son, Israel1. However, the immigration judge granted voluntary departure under 8 USC, Section 1229c(b), on the conditions of posting a $500.00 bond with departure by May 24, 2004 (60 days). bond was timely posted. Thereafter the

25

The denial of relief under 8 USC, Section 1229b(b)(1)(B) was not addressed or sustained by the BIA in its subsequent order June 10, 2005.
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8.

Mr. Rodriguez filed a timely notice of administrative

appeal to the BIA within thirty days of the immigration judge's order and before the expiration of the voluntary departure

period. on or

After briefing, the administrative appeal was dismissed about June 10, 2005 by the BIA on grounds that the

petitioner failed to meet the hardship requirements of 8 USC, Section 1229b(b)(1)(D). The BIA then issued an order granting

voluntary departure for sixty days from the date of the final administrative order, stating: FURTHER ORDER: Pursuant to the Immigration Judge's order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart from the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security (DHS). See section 240B(b) of the Immigration and Nationality Act, 8 C.F.R. §§ 1240.26(c), (f). In the event the alien fails to so depart, the alien shall be removed as provided in the Immigration Judge's order. NOTICE: If the respondent fails to depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty of not less than $1,000 and not more than $5,000 and shall be ineligible for a period of 10 years for any further relief under section 240B and the sections 240A, 245, 248 and 249 of the Immigration and Nationality Act. See section 240B(d) of the Act.

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9.

Under 8 USC, Section 1252(b)(1), petitioner had thirty

days thereafter to seek judicial review before the United States Court of Appeals for the Ninth Circuit (hereinafter Court of Appeals). A petition for review was not filed. Instead on or

about August 9, 2005 a motion to reopen was filed with the BIA by Mr. Rodriquez, asserting new evidence regarding hardship to Israel and requesting: a) a stay of removal; and b) a tolling of the voluntary departure period under Azarte v. Ashcroft 394 F3d 1278 (9th Cir 2005). The day of the filing was the sixtieth day The the

after the issuance of the decision and order of the BIA. delegates of respondents Chertoff and Alcantar opposed

motion on or about August 17, 2005. 10. On or about September 15, 2005 the BIA denied the In so doing, the BIA noted that petitioner

motion to reopen.

had been granted sixty days to exercise his voluntary departure; the period had expired, citing Azarte v. Ashcroft 394 F3d 1278 (9th Cir. 2005); but the BIA still had jurisdiction to rule on the motion to reopen itself nonetheless, presumably under the ninety day period under 8 USC, Section 1229a(c)(7)(C). No order

granting, tolling or extending the voluntary departure period was included in the decision and order. 11. On or about October 6, 2005 Mr. Rodriquez filed a

petition for review of the decision and order denying the motion to reopen and requested a stay of removal with the Court of Appeals in Garcia Garnica v. Gonzales, Case No. 05-75751. In

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the filing, petitioner's then counsel argued that the denial of relief under 8 USC, Section 1229b(b)(1)(D) was "arbitrary and capricious" and therefore not barred from review as a The

discretionary issue under 8 USC, Section 1252(a)(2)(B)(i). issue of the BIA's failure to toll the grant of

voluntary

departure was not raised and no request for a tolling of the voluntary departure period was asserted or mentioned by

petitioner's then counsel. 12. On the same day, the Court of Appeals issued a form

order under General Order 6.4(c) stating that "a temporary stay of deportation/removal and/or voluntary departure is in effect pending further order of this court," and, further stating that "NOTICE: There is no temporary stay of voluntary departure in effect if the motion for stay was filed AFTER expiration of the voluntary departure period." On or about January 11, 2006 the

Court of Appeals issued an order granting the unopposed stay motion and setting a briefing schedule. 13. After two extensions of time, petitioner's then

counsel of record filed an opening brief on or about May 1, 2006. In the brief petitioner's counsel argued issues relative

to the denial of relief for cancellation under 8 USC, Section 1229b(b)(1)(D) under a post-administrative order precedent,

Fernandez v. Gonzales 439 F3d 592 (9th Cir. 2006), but did not address the issue of the BIA's order relative to the expiration of the grant of voluntary departure.

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14. Gonzales, dismissal

After said

a

substitution moved

of for

counsel summary

for

respondent or

respondent

disposition

on multiple grounds on or about August 15, 2006, to On or about summary the

which petitioner's counsel made a brief reply. December 1, 2006, for the Court of Appeals on

granted

disposition

respondent

Gonzales

grounds

that

questions raised were insubstantial. the same date. 15.

Judgment was entered on

Based on information and belief, on or about December

6, 2006, Mr. Rodriguez sent a letter to petitioner's residence explaining that he might have voluntary departure, but that

petitioner would have to talk to counsel first and then present documents to "the immigration" before exercising it. failed to state a date by which the possible The letter "voluntary

departure" was to be exercised.

Adverse consequences, including

entry of a "deportation" order should the voluntary departure not occur, were enumerated. Petitioner was working out of state

at the time and was advised of the contents of the letter by his spouse. The next day, petitioner spoke with Mr. Rodriquez by Petitioner was thereupon advised by Mr. Rodriquez

telephone.

that the DHS/ICE would send petitioner a letter telling him when to leave for Mexico, and that his case was finished. No

discussion of voluntary departure occurred and petitioner was not advised as to whether he was still eligible for voluntary departure.

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16.

On or after September 5, 2007 petitioner was contacted

by Mr. Rodriquez regarding a letter received by counsel from DHS/ICE and that he was to report for deportation on September 26, 2007. provided 2007. Despite requests for a copy of the letter, it was no to petitioner the by Mr. Rodriquez is until to September report to 21, the

Under

letter,

petitioner

delegates of respondent Alcantar for removal to Mexico for ten years at 630 Sansome Street, Fifth Floor, San Francisco,

California 17.

94111, on September 26, 2007 at 9:00 o'clock a.m. At all times mentioned herein, petitioner had a right

to effective assistance of counsel in post-final order removal proceedings Amendment secured the by the due process clause of the ex. Fifth Rel.

to

federal

constitution.

Dearinger

Volkova v. Reno 232 F3d 1042, 1045-6 (9th Cir. 2000). 18. At all times mentioned herein, the tolling of grants

of voluntary departure upon the filing of motions to reopen were governed by the precedent in Azarte v. Gonzales 394 F3d 1278 (9th Cir. 2005). 19. On or about September 25, 2007 the instant petition

for writ of habeas corpus was filed and served. 20. On or about September 26, 2007 the Honorable Saundra

Brown Armstrong dismissed the petition for lack of jurisdiction.

///

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IV LEGAL ARGUMENT A. Facts

Petitioner incorporates by reference the facts set forth in the habeas petition as if fully set forth herein. the following facts are pertinent to the In addition, and

jurisdictional

substantive issues set forth below.

Factual issues relative to

the stay motion itself are addressed in the stay motion and below. The immigration judge issued an order on or about March 25, 2004 denying discretionary cancellation of relief removal, under but 8 USC, Section voluntary

1229b(b)(1),

granting

departure under 8 USC, Section 1229c(b) within sixty days and the posting of a $500 bond within five days of the order with an alternative order of removal to Mexico if petitioner failed to depart within the voluntary departure period (Habeas petition, Exhibit J). The final administrative order was issued by the BIA after timely administrative appeal by petitioner on or about June 10, 2005, wherein the BIA dismissed the appeal from the order

denying relief under the cancellation statute, but reinstating the voluntary departure order for sixty days from the date of the order (Id., Exhibit M). of removal since it The BIA order became a final order the decision and order of the

affirmed

immigration judge.

8 USC, Section 1101(a)(47)(B)(i).

Counsel

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for petitioner did not seek judicial review of the final order by petition within thirty days thereafter. 8 USC, Section

1252(b)(1). Instead, on the sixtieth day after the final order, and the last day of the voluntary departure order, counsel for

petitioner filed an administrative motion to reopen within the ninety day time period allowed after the final order for such motions. 8 USC, Section 1229a(c)(7)(C)(i). In the motion,

petitioner requested both a stay of removal and a stay of the voluntary departure period under Azarte v. Ashcroft 394 F3d 1278 (9th Cir. 2005) (habeas petition, Exhibit N). The BIA denied the motion on or about September 15, 2005, stating that the voluntary departure period had expired under Azarte, but that the motion to reopen itself could be considered as timely and was denied (Id., Exhibit P). In Azarte, the Ninth Circuit had to resolve the conflict between two statutes, regarding the sixty day maximum for

voluntary departure under 8 USC, Section 1229c(b)(2) and the ninety day maximum for motions to reopen under 8 USC, Section 1229a(c)(7)(C)(i). The Azarte court held that if the motion to

reopen is filed within the shorter voluntary departure period, then the voluntary departure period is tolled during the time the BIA is considering the motion to reopen. Azarte at 1289.

Accordingly, under Azarte the voluntary departure period in this case was tolled during the consideration of the motion to reopen

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since it was filed on the sixtieth day after the BIA's June 10, 2005 final order. Upon issuance of the September 15, 2005 BIA order denying the motion petitioner had thirty days to seek review under 8 USC, Section 1252(b)(1) and time regarding the voluntary

departure period commenced to run.

A petition for review was

filed on or about October 6, 2005 (Habeas petition, Exhibit Q). Voluntary departure time commences to run from the final order date unless tolled by Azarte. Under Desta v. Ashcroft 365 F3d

741 (9th Cir. 2004) a subsequent filing of a motion for stay tolls running of time under a voluntary departure order, if it is filed within the voluntary departure period which commences to run after the lifting of an Azarte tolling period, but only for such time remaining at the time of the filing of the motion. Desta at 747. Therefore, the balance of voluntary departure

time available to petitioner under a Desta stay would have been 39 days. However, due to the BIA's erroneous finding under Azarte, all voluntary departure time was found to have expired as of September 15, 2005. for review, was not The error was not raised in the petition briefed by counsel and the court order

dismissing the petition as insubstantial does not indicate that voluntary departure time remains and the issue was never raised. (Habeas petition, Exhibits Q, T, W). Accordingly, the issue of

the BIA's erroneous finding that voluntary departure had expired

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was not raised and petitioner has lost the right thereto as a result of the failure which occurred after the final order in the administrative proceeding. B. The District Court Has Jurisdiction Over the Habeas Petition 1. RIDA Does Not Apply Under Singh v. Gonzales

6

Under the provisions of RIDA, the District Court is
7

stripped of habeas jurisdiction over review of final orders of
8

removal.
9

8 USC, Section 1252(a)(5); 1252(b)(9).

However, under

Singh
10 11

a narrow exception arises where a Fifth Amendment due

process deprivation through ineffective assistance of counsel occurs after entry of the final administrative order since such
12

review does not entail review of the order of removal itself,
13

and falls outside of the restrictions on habeas jurisdiction
14

under RIDA.
15

Singh at 10473-4; 10487-8. a review of the final

Thus, where the remedy order itself, habeas

does
16 17

not

entail

jurisdiction lies with the District Court.
18

Singh at 10486-8.

In the case at hand, the attorney error occurred after the final
19 20

order

issued

on

June

10,

2005

due

to

the

failure

of

counsel to raise and seek reversal of the clearly erroneous application of Azarte by the BIA as to the purported expiration
21

of the voluntary departure period on judicial review with the
22

Court of Appeals.
23

The ruling is an unequivocal error or law, the voluntary departure period under the

since
24

Azarte

tolls

facts.
25

Failure to raise the issue at all is clearly ineffective

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since petitioner has been stripped of the rights to voluntarily depart to his prejudice. Under the case law, the court of Appeals has no authority to reinstate (as opposed to tolling) an expired grant of

voluntary departure.

Zazueta-Carillo v. Ashcroft 322 F3d 1166 The proper remedy in the case at hand BIA as the administrative agency

,1107-75 (9th Cir. 2003). entails a remand to the

directing it to reinstate the remaining 39 days of the voluntary departure period lost as a result of ineffective assistance of counsel. By merely retriggering the balance of the voluntary

departure time, the remedy does not result in a review of the June 10, 2005 final order. Singh at 10474, 14086-7 (remedy on

remand to District Court would be an order directing the BIA to retrigger the 30 day period to seek judicial review).

Accordingly, under Singh, the District court has jurisdiction over the habeas petition herein. C. The Failure to Seek Judicial Misapplication of Azarte by the Ineffective Assistance of Counsel 1. Constitutional Claim Review of the BIA Constitutes

The right to effective assistance of counsel arises under the due process clause of the Fifth Amendment. Baires v.

INS 856 F2d 89, 90-91 (9th Cir. 1998); Mohesseni Bebbahani v. INS 796 F2d 249, 250-2 (9th Cir. 1986). The issue therefore arises

under habeas jurisdiction 28 USC, Section 2241(c)(3).

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2. In

Standard for Ineffective Assistance the Ninth Circuit, the standard for ineffective

assistance of counsel is whether ineffective assistance "may" have affected the outcome of the proceeding. Mohammed v.

Gonzales 400 F3d 785, 793-4 (9th Cir. 2005). 3. Ineffective Assistance of Counsel

While there is no case precisely on point with the present case, the following cases set the parameters for the ineffective assistance of counsel claim herein. Failure application on by retained of the counsel alien to file a claim or

behalf

constitutes

ineffective

assistance of counsel.

Ray v. Gonzales 439 F3d 582, 587-89 (9th

Cir. 2006); Castillo Perez v. INS 212 F3d 518, 526 (9th Cir. 2000); Figueroa v. INS 886 F2d 76, 78-9 (4th Cir. 1989). A failure to apply for voluntary departure in the

administrative proceeding is ineffective assistance of counsel. Colindres Aguilar v. INS 819 F2d 259 (9th Cir. 1987). In the post-final order proceedings, the failure to file a timely petition for review after a final administrative order constitutes ineffective assistance of counsel. ex rel. Volkova v. Reno 200 F3d 1042 (9th Cir. 2000). context of the Sixth Amendment, ineffective Dearinger In the of

assistance

counsel includes acts and omissions on appeal. 477 U.S. 478, 488 (1986).

Murry v. Carrier

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While tactical decisions may not arise to the level of a Fifth Amendment violation, errors and omissions which may

affect the outcome do.

Thorsteinsson v. INS 724 F2d 1365, 1367

(9th Cir. 1984); Mohammed at 793-4; Ray at 587-89. Accordingly, in the case at hand, the failure to raise the clear legal error committed by the BIA in misapplying Azarte clearly affected a post order outcome as to the perseveration of the grant of voluntary departure to petitioner's prejudice

(infra) and constitutes ineffective assistance of counsel. 4. Prejudice

Petitioner must show prejudice to prevail on the claim of ineffective assistance. Rodriquez Lariz v. INS 282 F3d 1218, Since

1226 fn. 6 (9th Cir. 2002); Mohesseni Behbbahani at 251.

he is now facing removal instead of an exercise of voluntary departure, petitioner has been prejudiced as follows: 1) his

$500 departure bond is forfeited under 8 USC, Section 1229c(C) and 8 CFR, Section 1240.26(c)(3); 2) he faces a civil penalty from $1,000 to $5,000 under 8 USC, Section 1229c(d)(1)(A); 3) he is barred from specific relief, including re-immigration under 8 USC, Section 1255, for a period of ten years (including an

employment visa as a skilled truck driver); and d) has lost his remaining 39 day voluntary departure period. 5. Based Conclusion on the foregoing, petitioner has suffered

ineffective assistance of counsel.

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V STANDARDS FOR STAY Under the holding in Maharaj v. Ashcroft 295 F3d 963, 964-6 (9th Cir. 2002) and Abassi v. INS 143 F3d 513, 514 (9th Cir. 1998) petitioner respectfully submits that he is likely to prevail on the merits with demonstrable hardship if a stay is not issued or, alternatively the issues herein are serious legal questions and the balance of hardships favor petitioner in that: As to the violation of statute, such acts do not require a showing of prejudice. 1996). Bui v. INS 76 F3d 268, 270 (9th Cir.

As to the violations of the due process clause of the

Fifth Amendment petitioner has experienced prejudice since: a. b. The violations are clear, unequivocal errors of law; Petitioner is the father of a minor United States

citizen child who suffers from myopia. c. d. Petitioner is a homeowner, subject to a mortgage. Petitioner is the sole breadwinner for his family as a

commercial truck driver and his medical insurance coverage is essential for his son's operation. e. Petitioner will be barred from reentry for at least ten

years and subject to a fine up to $5,000 under 8 USC, Section 1229c(d) departure. if removed without reinstatement of his voluntary

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f.

Petitioner will be precluded from presenting further

evidence in support of any reinstated application for relief under 8 USC, Section 1229c(b) on remand if removed. If removed, petitioner will be separated from his family, unable to support them, unable to provide medical care for his son and will be barred from seeking further relief despite the

constitutional and statutory deprivations herein. VI IMMINENT REMOVAL PENDING Petitioner is in the custody of respondents and is subject to removal from the United States of America to Mexico since he has been ordered to be removed on September 27, 2007 on or after 5:00 o'clock p.m. by the Department of Homeland Security, Immigration and Customs Enforcement, by and through 630 Sansome Street, Room 548, San Francisco, California 94111. On or about September 27,

2007 a copy of this application was served on the United States Attorney Office, Northern District of California, at 450 Golden Gate Avenue, 9th Floor, San Francisco, California. In addition, a

copy of this application has been served on the respondents by mail. WHEREFORE, petitioner respectfully prays that the United

States District Court issue an order: 1. Temporarily staying the execution of the administrative

order of removal set forth herein by the Immigration and Customs

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Enforcement, Department of Homeland Security pending disposition of this motion for stay. 2. Staying the detention of petitioner by respondents

pending disposition of this motion for stay. 3. Staying execution of the final order of removal set

forth herein pending disposition of the petition herein; and 4. proper. Granting other such relief as the Court deems just and

Dated:
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

September 27, 2007

/s/ JAMES TODD BENNETT Attorney for Petitioner GUMARO GARCIA GARNICA

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