Immigration Bd.; Rakhshan v.

DAVOUD RAKHSHAN, Appellant

v.

IMMIGRATION BOARD, AMERICAN
SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 18-89

August 29, 1989

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Appellate court cannot entertain an ex parte motion for stay of immigration order, since applicable rule requires that notice be given to all parties. Appellate Court Rule 18.

Stay of deportation order should not be granted unless petitioner proves both that there is a substantial likelihood of his prevailing on the merits and that he will be greatly or irreparably injured if the stay is not granted. [12ASR2d73]

Proof of elements required for stay of deportation order ordinarily requires a hearing.

Before REES, Associate Justice.

Counsel: For petitioner, Charles v. Ala'ilima

On petition for stay:

Appellant has been ordered by the Immigration Board to leave the Territory for his country of origin by August 31, 1989.

He now moves ex parte for a stay of this order pending judicial review.

The Court cannot entertain such an ex pane motion. Appellate Court Rule 18 specifically requires that "[r]easonable notice of the motion shall be given to all parties."

Moreover, a stay of a deportation order should not be granted unless petitioner proves both that there is a substantial likelihood of his prevailing on the merits and that he will be greatly or irreparably injured if the stay is not granted. Leti v. Immigration Board, 8 A.S.R.2d 107 (1988). Such proof ordinarily requires a hearing. It is not clear why this motion is being made only two days before the deadline, when a hearing with the requisite reasonable notice will be difficult if not impossible to arrange.

If, however, petitioner complies immediately with the notice provision of Rule 18, it may be possible to schedule an expedited hearing at some time during the next two days.

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