                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                       June 5, 2019

                                         Before

                         DIANE S. SYKES, Circuit Judge

                         DAVID F. HAMILTON, Circuit Judge

                         AMY C. BARRETT, Circuit Judge


No. 19-1728

RUBEN LOPEZ RAMOS,                             Petition for Review of an Order of the
    Petitioner,                                Board of Immigration Appeals.

      v.                                       No. A039-091-760

WILLIAM P. BARR, Attorney General
of the United States,
       Respondent.

                                       ORDER

        IT IS ORDERED that the motion for stay of removal is DENIED. The temporary
stay of removal entered on April 18, 2019, is VACATED. Petitioner has demonstrated
neither the irreparable harm nor substantial likelihood of success on the merits required
for a stay under Nken v. Holder, 556 U.S. 418 (2009). While we are cognizant that removal
imposes a serious burden on petitioner, the Supreme Court has made clear that “the
burden of removal alone cannot constitute the requisite irreparable injury.” Id. at 434.
And petitioner’s argument that the statutory scheme is irrational has little chance of
succeeding.
No. 19-1728                                                                         Page 2

       HAMILTON, Circuit Judge, dissenting. I respectfully dissent. Ramos faces removal
from the nation where he has been a lawful permanent resident for thirty years, since he
was just ten years old. He is removable, rather than a United States citizen who has
served his time, because of an odd, arguably irrational, conundrum. The conundrum
arose under statutes that have been repealed but still apply to him. If Ramos had been
born abroad to two non-citizens, he would have become a United States citizen
automatically when his mother would have become a naturalized citizen. 8 U.S.C.
§ 1432 (1988) (repealed). His mother was born a citizen of the United States, though, so
she was never naturalized. Because she had not resided in the United States before
Ramos’s birth, a different rule applied. 8 U.S.C. § 1401(a)(7) (1970). He did not become a
United States citizen automatically upon his birth or as a minor, but he would have if
only his mother had not been a citizen herself.

       Ramos argues that this odd differential treatment in favor of children of
naturalized mothers as compared to mothers who are citizens by birth is irrational and
violates the equal protection dimension of the Fifth Amendment’s due process clause.
He might be right. Neither the immigration judge nor the Board of Immigration
Appeals had the authority to consider that constitutional claim. This court is not aware
of any controlling or even persuasive authority from any court that would resolve this
claim. While it may be difficult to win an equal protection case under the applicable
rational-relation test, it is not impossible. Also, the 2001 repeal of the statutes posing
this odd conundrum raises questions about the government’s interests here.

       In deciding Ramos’s motion for a stay of removal, under Nken v. Holder, 556 U.S.
418 (2009), and Hilton v. Braunskill, 481 U.S. 770, 777–78 (1987), we should exercise
equitable discretion by weighing the risk of irreparable harm posed by an incorrect
decision (in either direction) and Ramos’s prospects for success on the merits.
Removal of a long-term legal permanent resident who has a family and a life in this
country will cause grave irreparable harm, not only to Ramos but also to his family of
United States citizens. A delay of months to give our court time to consider his
arguments carefully through the ordinary course of briefing and argument will, on the
other hand, cause the government and the public no comparable or even appreciable
harm. In the absence of controlling law that would show Ramos’s case is futile, we
should leave the stay of removal in place while we consider this case in the ordinary
course.
