     Case: 13-60319       Document: 00512271690         Page: 1     Date Filed: 06/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit
                                 _____________________                      FILED
                                                                           June 12, 2013
                                     No. 13-60319
                                 _____________________                     Lyle W. Cayce
                                                                                Clerk
MARCO ANTONIO DURAN-CRUZ,


                                                  Petitioner,

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent.

                              __________________________

                  Emergency Motion for Extension of Temporary
                     Stay of Removal Nunc Pro Tunc and
                   Emergency Motion for Stay of Removal on
                     Petition for Review of an Order by the
                         Board of Immigration Appeals
                             BIA No. A045-143-955
                           __________________________

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

       Petitioner Marco Antonio Duran-Cruz was deported by the Government
hours before this court granted a temporary stay of deportation pending review




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 13-60319         Document: 00512271690         Page: 2   Date Filed: 06/12/2013



                                       No. 13-60319

of Duran-Cruz’s appeal.1 Duran-Cruz now seeks an extension of that temporary
stay nunc pro tunc to the time he filed his original Emergency Motion for Stay
of Removal. We deny his motion.
                                              I
      Duran-Cruz was convicted of aggravated assault in Tennessee, and
removal proceedings were initiated.               In a preliminary bond hearing, an
Immigration Judge (IJ) concluded that Duran-Cruz’s conviction qualified as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(G) based on a copy of the
Tennessee judgment indicating that Duran-Cruz had been sentenced to 6 years
“CCA” and 6 years probation. At the time, Duran-Cruz had argued that his
conviction was not a felony because his incarceration sentence was suspended
and he served only probation. Duran-Cruz requested a rehearing on the issue,
which the IJ denied.
      At the subsequent deportation hearing, the IJ concluded that the issue of
whether Duran-Cruz was an aggravated felon had already been determined in
the bond hearing and ordered Duran-Cruz deported. While that order was on
appeal with the Board of Immigration Appeals (BIA), Duran-Cruz’s attorney
discovered a docket entry on a court computer, previously not found, in Duran-
Cruz’s state criminal file (Minute Order Entry) relating to Duran-Cruz’s
sentence that read as follows:
      CAME THE ATTORNEY GENERAL WHO PROSECUTES FOR
      THE STATE AND THE DEFENDANT IN PERSON, BEING
      REPRESENTED BY COUNSEL.
      THEREUPON, THIS CAUSE CAME ON TO BE HEARD UPON A
      SENTENCING HEARING; AFTER HAVING HEARD THE PROOF
      AND ARGUMENT OF COUNSEL, THE COURT SENTENCES
      THE DEFENANT [sic] TO SIX YEARS INTENSIVE PROBATION
      WITH JUDGMENTS TO BE ENTERED.


      1
          Order, No. 13-60319 (5th Cir. June 7, 2013).

                                              2
     Case: 13-60319         Document: 00512271690         Page: 3    Date Filed: 06/12/2013



                                        No. 13-60319

Based on this newly discovered Minute Order Entry, Duran-Cruz moved for a
rehearing, arguing for the first time that he was sentenced directly to probation
without any imprisonment and therefore his conviction did not constitute an
aggravated felony.2
       The IJ denied Duran-Cruz’s request for a rehearing for two reasons. First,
under 8 C.F.R. § 1003.23(b)(1) a party may file only one motion to reconsider,
and the IJ concluded that Duran-Cruz’s earlier request for a rehearing of the
bond determination precluded a rehearing of the judgment. Second, the IJ held
that Duran-Cruz had not shown that his motion was based on previously
unavailable and undiscoverable evidence as required to justify reconsideration
under 8 C.F.R. § 1003.23(b)(3). Duran-Cruz applied for an administrative stay
of removal and appealed to this court, arguing (1) that the regulations
distinguish between pre- and post-decision motions for rehearing and (2) that
the Minute Order Entry is material evidence that was previously unavailable.
       On June 5, 2013, while his appeal in this court was pending, Duran-Cruz’s
attorney learned that the Government had denied his application and planned
to deport Duran-Cruz on June 7, 2013. Duran-Cruz filed an Emergency Motion
for Stay of Removal with this court on June 6. The following day, we granted a
temporary stay of removal but not before the Government deported Duran-Cruz.
Duran-Cruz now asks this court to extend the temporary stay nunc pro tunc.
                                               II
       Although Congress eliminated the automatic stay of removal that
previously accompanied the filing of an appeal, we retain the inherent authority
to issue a stay of removal as appropriate.3 In considering whether to issue a


       2
        Under this court’s precedent, a conviction must carry with it a sentence of at least one
year of incarceration, even if not served, to be classified as an aggravated felony for the
purposes of removal. United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999).
       3
           Nken v. Holder, 556 U.S. 418, 435-36 (2009).

                                               3
     Case: 13-60319        Document: 00512271690          Page: 4     Date Filed: 06/12/2013



                                        No. 13-60319

stay, we consider “(1) whether the stay applicant has made a strong showing
that he 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.”4 A stay may be justified to preserve meaningful review,
but a stay is also an “intrusion into the ordinary processes of administration and
judicial review” and therefore not to be granted reflexively.5 Furthermore, we
are mindful that Duran-Cruz is requesting a stay nunc pro tunc. Courts have
sanctioned orders nunc pro tunc in other immigration contexts only in “certain
exceptional cases.”6 It is far from clear that this court has the authority to issue
a nunc pro tunc order in this precise context, and in any event, we have
expressed reluctance to extend the application of nunc pro tunc authority absent
manifest necessity.7
       Of the factors we consider in granting a stay, the first two are “the most
critical.”8 In particular, the petitioner must demonstrate “more than a mere
possibility”of success on the merits.9 In his underlying appeal, Duran-Cruz


       4
       Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)) (internal quotation
marks omitted).
       5
        Id. at 427 (quoting Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921,
925 (D.C. Cir. 1958) (per curiam)) (internal quotation marks omitted).
       6
        E.g., Iavorski v. INS, 232 F.3d 124, 130 n.4 (2d Cir. 2000) (citing Batanic v. INS, 12
F.3d 662, 667-68 (7th Cir. 1993)); cf. Fanelli v. Hensley (In re Triangle Chems., Inc.), 697 F.2d
1280, 1289 (5th Cir. 1983) (noting that a bankruptcy court’s equitable powers “may permit
nunc pro tunc appointment [of a trustee] in rare or exceptional circumstances”).
       7
        See Romero-Rodriguez v. Gonzales, 488 F.3d 672, 678-79 & n.8 (5th Cir. 2007) (holding
that the court’s nunc pro tunc authority does not extend to correcting the BIA’s legal errors
and noting that exercise of that power may be warranted only in exceptional circumstances,
such as avoidance of a constitutional violation).
       8
           Nken, 556 U.S. at 434.
       9
           Id.

                                               4
     Case: 13-60319         Document: 00512271690        Page: 5   Date Filed: 06/12/2013



                                          No. 13-60319

challenges the denial of a rehearing, which this court reviews under the “highly
deferential abuse-of-discretion standard.”10 Therefore, the first factor of the stay
analysis rests on whether Duran-Cruz is likely to succeed in his claim that the
IJ abused its discretion.              We conclude that the likelihood of success is
insufficient to justify a stay nunc pro tunc, even were we to possess that power.
      Duran-Cruz is likely correct that the IJ erred by holding that he had
exhausted his only opportunity for a rehearing. The one-motion limit applies
only to motions filed after entry of a “final administrative order of removal,
deportation, or exclusion.”11 Because Duran-Cruz’s earlier motion was filed and
denied before the IJ issued the final order of removal, his subsequent motion for
reconsideration was likely not barred.12
      However, Duran-Cruz must also show that the IJ abused its discretion by
holding that the Minute Order Entry did not justify a rehearing pursuant to 8
C.F.R. § 1003.23. In pertinent part, that regulation provides that “[a] motion to
reopen will not be granted unless the Immigration Judge is satisfied that
evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing.”13 Duran-Cruz asserts
that the Minute Order Entry is material evidence that was “previously
unavailable” to him because it was not in his criminal file and he only discovered
it after a search of the county’s computer system with the help of the county
clerk. We have never considered the meaning of “previously unavailable and not
discoverable” under § 1003.23, and we need not address the question here. Even



      10
         Rodriguez-Manzano v. Holder, 666 F.3d 948, 952 (5th Cir. 2012) (quoting Gomez-
Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)) (internal quotation marks omitted).
      11
           8 C.F.R. § 1003.23(b)(1).
      12
           Id.
      13
           Id. § 1003.23(b)(3).

                                               5
     Case: 13-60319         Document: 00512271690       Page: 6    Date Filed: 06/12/2013



                                        No. 13-60319

if the circumstances were to meet those criteria, it is unlikely that the IJ’s
refusal to grant a rehearing based on the Minute Order Entry was an abuse of
discretion.14
       Viewed in the context of the evidence as a whole, the probative weight of
the Minute Order Entry is diminished. Tennessee law mandates that a sentence
of probation be accompanied by a suspended term of imprisonment.15 The
applicable Tennessee statute states in pertinent part that
       [i]f the court determines that a period of probation is appropriate,
       the court shall sentence the defendant to a specific sentence but shall
       suspend the execution of all or part of the sentence and place the
       defendant on supervised or unsupervised probation either
       immediately or after a period of confinement for a period of time no
       less than the minimum sentence allowed under the classification
       and up to and including the statutory maximum time for the class
       of the conviction offense.16
Accordingly, Tennessee courts have held “that there is no such thing as
probation without a suspension of the sentence.”17 Furthermore, the record
contains ample evidence that Duran-Cruz was sentenced to six years of
incarceration, which the state judge suspended. In addition to the judgment
relied on by the IJ, the record before this court contains a completed “Probation
Order” indicating that Duran-Cruz was sentenced to a six-year term of
imprisonment that was suspended in favor of six years of probation. Against
this evidence, Duran-Cruz brings a single docket entry by the Tennessee clerk
that ambiguously omits mention of any suspended sentence of incarceration.


       14
        See id. (“The Immigration Judge has discretion to deny a motion to reopen even if the
moving party has established a prima facie case for relief.”).
       15
            TENN. CODE ANN. § 40-35-303 (2012).
       16
            Id. § 40-35-303(c)(1) (emphasis added).
       17
         State v. McCammon, 623 S.W.2d 133, 135 (Tenn. Crim. App. 1981) (citing State v.
King, 603 S.W.2d 721, 725 (Tenn. 1980)).

                                               6
     Case: 13-60319        Document: 00512271690          Page: 7     Date Filed: 06/12/2013



                                        No. 13-60319

Admittedly, the Minute Order Entry raises the possibility that the sentencing
judge imposed a probation-only sentence, unauthorized by Tennessee law.
However, when viewed against the weight of the evidence as a whole, it is a
slender reed from which to conclude that the IJ abused its discretion by denying
a rehearing.18 The request for a stay nunc pro tunc is DENIED.
       It is further ordered that the temporary stay previously granted is now
dissolved, and the request for a stay pending appeal is DENIED as MOOT.




       18
         See Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009) (“[T]his court must
affirm the BIA’s decision as long as it is not capricious, without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any perceptible rational
approach.”).

                                               7
