Opinion
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
On Petition for Review of an Order of the Board of Immigration Appeals.
Frank P. Sprouls, Law Office of Ricci and Sprouls, San Francisco, CA, for Petitioners.
John Ashcroft, Attorney General, Regional Counsel, Western Region, Immigration & Naturalization Service, Laguna Niguel, CA, Ronald E. LeFevre, Chief Legal Officer, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, M. Jocelyn Wright, Esq., U.S. Department of Justice, Jamie M. Dowd, Office of Immigration, Litigation, Washington, DC, for Respondent.
Before HUG, B. FLETCHER, and TASHIMA, Circuit Judges.
ORDER
On October 6, 2003, at oral argument, counsel for the petitioners, Angel Villanueva Araiza, his wife Euridice, and their two oldest children, made an oral motion for stay of voluntary departure nunc pro tunc. That motion is granted.
In El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir.2003), this court held that it has the equitable power to grant a stay of voluntary departure. The standards for granting a stay of voluntary departure are the same standards used to evaluate a motion for stay of removal. Id. A petitioner must show "either (1) 'a probability of success on the merits and the possibility of irreparable injury,' or (2) 'that serious legal questions are raised and the balance of hardships tips sharply in the petitioner's favor.' " Id. (quoting Abbassi v. INS, 143 F.3d 513, 514 (9th Cir.1998)).
On December 12, 2002, this court granted the Villanuevas' unopposed motion for a temporary stay of removal which would remain in effect until the disposition of the case or further action by the court. Because the standards for a stay or removal and a stay of voluntary departure are identical, we apply the same analysis and hereby
Page 591.
grant the petitioners' nunc pro tunc motion for stay of voluntary departure.
The stay of voluntary departure shall expire thirty days after the issuance of the mandate in this case.