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DHINE v. DISTRICT DIR.

May 24, 1993

LULSEGED DHINE, Petitioner,
v.
DISTRICT DIRECTOR and IMMIGRATION AND NATURALIZATION SERVICE, Respondents.


HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 This case is before the Court on respondents' motion for a stay of judgment pending appeal.

 BACKGROUND

 In a memorandum opinion and order dated April 23, 1993, familiarity with which is assumed, this Court granted Dhine's petition for a writ of habeas corpus. In a judgment dated May 5, 1993, this Court ordered Dhine's release from custody.

 On May 7, 1993, the government filed a notice of appeal of the Court's decision. In the interim, the government asks this Court to stay the judgment of May 5, 1993, pending a decision from the Second Circuit on the appeal. Petitioner resists this request and asks that the Court order his release.

 DISCUSSION

 A court making an initial custody determination in a habeas corpus case should be guided by the language of Fed. R. App. P. 23(c), and by the factors traditionally considered in decided whether to stay a judgment in a civil case. See Hilton v. Braunskill, 481 U.S. 770, 777, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1986). Rule 23(c) provides:

 
Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon the prisoner's recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the supreme Court, or a judge or justice of either court shall otherwise order.

 Four factors are traditionally utilized in determining whether to stay a judgment in a civil case: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; *fn1" (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties in interest in the proceeding; and (4) where the public interest lies. Id., at 776. Furthermore, if the respondent establishes that the prisoner would constitute a danger to the community if released, the Court may consider that factor in resolving the stay question. Id., at 777.

 1. Strong Possibility of Success on Appeal

 The Government devotes much of its argument to relitigating the issues that were determined in this Court's April 23rd opinion. To the extent that those issues were addressed in the earlier opinion, the Court need not revisit them. Instead, I focus on the Government's argument that it has a substantial possibility of success on appeal. The government contends that it knows of no case where a court reversed a BIA decision denying a discretionary grant of asylum where the applicant had a multiple criminal convictions.

 Initially, I observe that the government does not take issue with the legal standards or analyses the Court employed, but merely with the result that was reached. Thus, the appeal appears to rest on the ground that the Court's findings constituted an abuse of discretion. As far as grounds for appeal go, this is one of the more difficult arguments to make successfully.

 As for the government's argument concerning the novelty of my finding, I confess that I know of no case where the government seemed so anxious to repatriate someone to a country from which every single one of his "group" had fled, on the basis of four ...


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