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Tuesday, August 03, 2004
Indiana Decisons - One 7th Circuit Opinion Posted Today
RASHMIKA PATEL v. JOHN D. ASHCROFT (On Petition for Review of an Order of
the Board of Immigration Appeals)
Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Once again we deal with issues arising from the removal (deportation) of an alien in violation of a stay granted by this court. * * *The government has moved to dismiss Patel’s petition for review on the ground that a court has no jurisdiction to review an order of removal or deportation after the alien has been removed. And so the statute provides. * * *
We doubt that Congress meant to empower the immigration authorities to thwart judicial review by removing the alien from the United States in conscious contempt of a judicial decree. But there was no willfulness on the part of the government in this case—on the contrary, the violation of the stay was technical and inadvertent, the stay having been issued too late to be communicated to the airline in time to stop the departure. Patel should not be allowed to gain a procedural advantage from the action of her lawyer in dawdling about seeking a stay of the original removal order. Baez v. INS, supra, 41 F.3d at 25; Arreaza-Cruz v. INS, 39 F.3d 909, 911 (9th Cir. 1994). Not only must the motion for a stay of removal be dismissed as moot, therefore, but the petition for review must also be dismissed as outside our jurisdiction.
Posted by Marcia Oddi on August 3, 2004 12:07 PM
Posted to Indiana Decisions