Opinion
No. 00 Civ. 8731 (GBD)
December 18, 2000
MEMORANDUM OPINION AND ORDER
On November 15, 2000, Petitioner Euclides Gomera brought a petition before this Court for a Writ of Habeas Corpus and moved for a Temporary Restraining Order ("TRO") to stay deportation. On November 27, 2000 this Court denied Mr. Gomera's petition for a Writ of Habeas Corpus and for a TRO to stay deportation following a finding of the Board of Immigration Appeals that petitioner was an aggravated felon and therefore ineligible for the relief of cancellation of removal. See Gomera v. Reno, No. 00 Civ. 8731, 2000 WL 1752835 (S.D.N.Y. 2000).
On December 6, 2000, petitioner appealed this Court's decision to the Second Circuit and moved this Court for a stay of his final order of removal pending appeal.
The standard in this Circuit for a stay pending appeal is "(1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a `substantial possibility, although less than a likelihood, of success' on appeal, and (4) the public interests may be affected." Larouche v. Kezer, 20 F.3d 68, 72 (2d Cir. 1994) (citingHirschfield v. Board of Elections, 984 F.2d 35, 39 (2d Cir. 1993)).
Petitioner has not met his burden to obtain a stay from this Court pending appeal. In particular, he has not demonstrated a substantial possibility of success on appeal. There is not a substantial possibility that petitioner will be successful in arguing that the holding in St. Cyr v. Immigration and Naturalization Service, 229 F.3d 406 (2d Cir. 2000) applies to the circumstances of his case. In St. Cyr, the Second Circuit determined that the bar to discretionary relief from removal should not be applied retroactively to pleas of guilty or nolo contendere entered before the 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Petitioner argued before this Court that his original conviction, which occurred before the enactment of the statutes, cannot be used to qualify his subsequent drug offenses as an aggravated felony. Petitioner committed and was convicted of an aggravated felony two years after the enactment of the statutes. In the Court's opinion in St. Cyr, the Second Circuit did not require that both the prior crime, as well as the aggravated felony, must occur after the enactment of the statutes.
Having failed to demonstrate a substantial possibility of success on appeal, petitioner's motion for a stay pending appeal is therefore DENIED.