United States District Court, D. Oregon, Portland Division
A. Platt Timothy M. Belsan U.S. DEPARTMENT OF JUSTICE, CIVIL
DIVISION Office of Immigration Litigation Diane Schweiner
U.S. ATTORNEY'S OFFICE - DISTRICT OF OREGON Attorneys for
Rasema Yetisen 2088 Defendant Pro Se
OPINION & ORDER
A. HeJandez, United States District Judge.
February 28, 2019 Opinion & Order, I granted
Plaintiff's motion for judgment on the pleadings.
United States v. Yetisen, No. 3:18-cv-00570-HZ (D.
Or. Feb. 28, 2019), ECF 35. As a result, Plaintiff was
entitled to judgment on its claim that Defendant had
illegally procured her naturalization. On March 11, 2019, a
Judgment in accordance with the February 28, 2019 Opinion
& Order was filed. ECF 39. The Judgment revokes and sets
aside the order admitting Defendant to United States
citizenship, effective as of the original date of the
Certificate of Naturalization, and further cancels
Defendant's Certificate of Naturalization. Judgment at 1.
Additionally, the Judgment orders Defendant to surrender her
Certificate of Naturalization, any copies of the Certificate
in her possession, and any current or expired United States
passports. Id. at 2. Defendant moves to stay
execution of the Judgment pending appeal. I deny the motion.
federal court, "as part of its traditional equipment for
the administration of justice," may stay the execution
of a judgment pending appeal. Nken v. Holder, 556
U.S. 418, 421 (2009) (internal quotation marks omitted);
see also Fed. R. Civ. P. 62. However, a stay
"is an intrusion into the ordinary processes of
administration and judicial review and accordingly, is not a
matter of right, even if irreparable injury might otherwise
result to the appellant[.]" Id. at 427
(citation and internal quotation marks omitted).
courts have denied stays of execution in civil
denaturalization cases. E.g., United States v.
Breyer, 41 F.3d 884, 893 (3d Cir. 1994) (affirming
district court's denial of a motion to stay the
denaturalization action pending resolution of a "pending
administrative derivative citizenship proceeding" and
describing a stay as "as an extraordinary
measure"); United States v. Olivar, No.
CV1209134RGKPJWX, 2014 WL 12707482, at *1-2 (C.D. Cal. Mar.
31, 2014) (denying motion to stay a civil denaturalization
order pending appeal).
party seeking the stay bears the burden of showing that a
stay is warranted. Nken, 556 U.S. at 433-34. The
relevant factors to consider are: (1) whether the stay
applicant has made a strong showing that she is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public
interest lies. Id. at 426. Among these factors, the
first two are the most critical. Id. at 434. The
first factor requires that the chance of success on the
merits be "better than negligible." Id.
The second factor requires the moving party to demonstrate
more than "some possibility of irreparable injury."
Id. "Once an applicant satisfies the first two
factors, the traditional stay inquiry calls for assessing the
harm to the opposing party and weighing the public interest.
These factors merge when the Government is the opposing
party." Id. at 435.
initial motion, Defendant does not cite to the relevant
factors and states only that she cannot work on her appeal if
she is forced to leave the country. ECF 41. In her reply, she
raises what appear to be arguments contending that she has a
likelihood of success on the merits. ECF 44. She also
reiterates her concern that she will be unable to prosecute
her appeal if she is deported. Defendant's arguments are
the likelihood of success on the merits, I do not repeat the
analysis contained in the February 28, 2019 Opinion but I
note that Defendant did not dispute key facts such as her
having pleaded guilty to war crimes and did not dispute
previous factual findings including that she had committed
murder. Feb. 28, 2019 Op. at 8-9. She cites to no law or
other authority in support of the arguments she offers now
suggesting that this Court erred. She fails to show that her
likelihood of success on appeal is more than
"negligible." This factor weighs in Plaintiff's
it may be more onerous to proceed with her appeal if she is
no longer in the United States, I reject Defendant's
contention that this is irreparable harm. First, as Plaintiff
explains, Defendant's alleged harm is not imminent.
Instead, Defendant remains in the United States as a lawful
permanent resident until she is removed by the Department of
Homeland Security. Before Defendant is actually removed from
this country, the Department of Homeland Security must decide
to initiate removal proceedings and must succeed in that
pursuit. Defendant is entitled to due process during that
proceeding, and has the ability to seek relief from the
immigration court, to appeal an adverse decision to the
Bureau of Immigration Appeals, and then, if necessary, to
petition the appropriate federal court of appeals for review
as permitted by statute. If she is actually deported during
this process, she could continue to work on her appeal from
abroad. Granted, as noted above, this could be cumbersome.
But, absence from the United States does not prevent
her from prosecuting her appeal. This argument also weighs in
favor of Plaintiff.
instructs that when the Government opposes the motion to
stay, the issues of harm to the opposing party and the public
interest merge. Here, while I see little harm to the
Government by staying execution of the Judgment, the
Government appropriately notes that the public interest is
served by protecting the public from convicted criminals.
Although the facts of this case do not suggest that the
public is actually in any danger by Defendant's presence
in the United States, her criminal history weighs in the
Government's favor. Moreover, as the Government notes,
there is always the possibility that should Defendant not be
required to promptly turn over her Certificate of
Naturalization and passport, she could abscond. In the end, I
find this factor neutral.
all of the relevant factors, Defendant fails to meet her
burden to show that execution ...