The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO STAY REMOVAL; DISMISSING PETITION FOR LACK OF SUBJECT MATTER JURISDICTION; GRANTING 20 DAY HUMANITARIAN STAY
Petitioner Matteo Beatrice brings this habeas action pursuant to 28 U.S.C. §2241 to enjoin Respondents from effectuating his expedited removal in order to permit him the opportunity to adjust his immigration status. Respondents oppose the Petition. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court denies the motion to stay removal and dismisses the Petition for lack of subject matter jurisdiction. However, the court grants Petitioner a 20 day humanitarian stay in order to permit him the opportunity to obtain an stipulation and order permitting him to take his child with him to Italy.
Petitioner, a native and citizen of Italy, entered the United States for a second time on June 20, 2006 under the Visa Waiver Program ("VWP"). On July 12, 2006 Petitioner married a United States citizen, Tracy Lee Bennet, (Petition ¶2), and on June 18, 2007 the couple had a United States citizen son named Charlito Michael Beatrice.
Shortly after the marriage, Petitioner discovered that his wife was a drug abuser. (Petition ¶4). "As a result, they fought a lot and most fights involved Ms. Bennett being physically abusive towards Mr. Beatrice." Id.
On March 23, 2008 Petitioner sought and received a restraining order against Ms. Bennett. (Petition ¶5). The state court awarded physical and legal custody to Petitioner. Petitioner was also ordered not to move the child out of San Diego County without notice to Ms. Bennett or further court order. Id.
On July 10, 2008 Petitioner filed a Violence Against Women Act ("VAWA") petition, seeking to adjust status to that of a legal permanent resident of the Untied States. On the same day, Petitioner was taken into custody of the Immigration and Customs Enforcement ("ICE"). On July 17, 2008 Petitioner, through counsel, requested a motion for bond determination. (Petition ¶15). On July 23, 2008 ICE informed Petitioner's counsel that Petitioner did "not have a right to a bond hearing because he is subject to expedited removal and will be sent back to Italy before the end of the month." (Petition ¶10).
Petitioner alleges that he sought relief from detention in order to (1) have his VAWA Petition adjudicated and (2) arrange appropriate care for his one-year son "who could end up in foster care if he is removed from this country summarily." (Petition ¶12). Petitioner has been unable to secure his release from detention and moves to (1) have Respondents adjudicate his adjustment of status request and (2) enjoin Respondents from effectuating his removal. Respondents oppose the Petition and Petitioner's efforts to stay his removal from the country.
Legal Standards for a Stay
Stay requests are analyzed under the same standards employed to evaluate motions for preliminary injunctions. Abassi v. I.N.S., 143 F.3d 513, 514 (9th Cir. 1988). Preliminary injunctive relief is available if the party meets one of two tests: (1) a combination of probable success and the possibility of irreparable harm, or (2) the party raises serious questions and the balance of hardship tips in its favor. Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Id. Under both formulations, however, the party must demonstrate a "fair chance of success on the merits" and a "significant threat of irreparable injury." Id.
In order to prevail on the merits of Petitioner's claim, he must make a prima facie showing that he has the statutory right to seek adjustment of status. Visitors admitted under the VWP program may enter the United States without obtaining a visa for a period of up to 90 days. 8 U.S.C. §1187(a)(1). As a condition of entering the United States without a visa under VWP, the individual agrees to waive any right to review of "an immigration officer's determination as to the admissibility of the alien" or "to contest . . . any action for removal of the alien." 8 U.S.C. §1187(b). Visitors admitted under this program are ineligible for adjustment of status, except on the basis of an application for asylum. 8 U.S.C. §1187(b). A VWP entrant may also obtain adjustment of status through either an immediate relative petition, 8 U.S.C. 1255(c)(4), or a self-petition under VAWA. 8 C.F.R. §1245.1(b)(8). As explained by the Ninth Circuit, the no contest clause is "the linchpin of the [VWP], which assures that a person who comes here with a VWP visa will leave on time and will not raise a host of legal and factual claims to impede removal if he overstays." Momeni v. Chertoff, 521 F.3d 1094, 1096 (9th Cir. 2008). Consequently, any claim for adjustment of status must be made within the 90 period of time. Id. In Momeni, a German citizen entered the United States on November 30, 2005 as a tourist under the VWP. The petitioner did not leave the country within the 90 day period. On April 11, 2006 he married a United States citizen and subsequently filed a petition to adjust status based upon his marriage to a United States citizen. The Ninth Circuit concluded that the petitioner's failure to timely seek adjustment of status within the 90 day period of VWP prevented him from seeking to adjust his immigration status.
In Freeman v. Gonzales, 444 F.3d 1031, (9th Cir. 2006) a dual citizen of South Africa and Italy met an American citizen while temporarily working in the United states. The couple married in February 2001. Shortly thereafter Mrs. Freeman traveled to South Africa and returned to the United States in June 2001 under the VWP. In September 2001, prior to expiration of the 90 day period, Mr. Freeman filed a petition for immediate relative and Mrs. Freeman filed an application to adjust status based upon her marriage to a United ...