Idokogi v. Ashcroft ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-30553
Summary Calendar
DUNCAN VICTOR AYEMERE IDOKOGI,
Petitioner-Appellant,
versus
JOHN ASHCROFT; KEVIN D. ROONEY;
EDWARD J. MCELROY; BENEDICT FERRO;
CARYL G. THOMPSON; U.S. DEPT. OF JUSTICE,
Respondents-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CV-205
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Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Duncan Victor Ayemere Idokogi, a Nigerian citizen who is a
permanent resident of the United States, appeals the district
court’s order lifting the stay of his removal. Idokogi argues
that he is not an aggravated felon. He argues that the denial of
a stay is an unconstitutional violation of his due-process rights
and that permanent exile from this country and separation from
his family is irreparable injury.
*
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that this opinion should not be published and is not precedent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.
No. 02-30553
-2-
Appeal from an order dissolving an injunction is governed by
28 U.S.C. § 1292(a)(1). “[T]he first question . . . is whether
the order appealed from specifically denied an injunction
(whether permanent or preliminary), or merely had the practical
effect of doing so.” E.E.O.C. v. Kerrville Bus Co., Inc., 925
F.2d 129, 131 (5th Cir. 1991). If the order specifically denied
an injunction, “that order is appealable as of right, right
away.” Id. at 132.
We have noted that a request for a judicial stay of
deportation is akin to and should be treated as a request for an
injunction. See Ignacio v. INS, 955 F.2d 295, 299 n.5 (5th Cir.
1992)). In Idokogi’s petition, Idokogi requested an order
enjoining the Government from deporting him until a full hearing
on the merits of his claim was had. By lifting the previous
grant of the request for a stay, the district court’s order
specifically denies this request. Therefore, we have
jurisdiction over Idokogi’s appeal from the district court’s
decision to lift the stay of the removal order.
We review an order denying an injunction for abuse of
discretion. See Regions Bank v. Rivet, 224 F.3d 483, 488 (5th
Cir. 2000); Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.
1991). The relief sought by Idokogi in the district court is
connected “directly and immediately” with the Attorney General’s
decision to commence removal proceedings against him. See
Humphries v. Various Federal USINS Employees, 164 F.3d 936, 943
No. 02-30553
-3-
(5th Cir. 1999). The district court therefore correctly
determined that it lacked jurisdiction to stay the order of
removal. See 8 U.S.C. § 1252(g); Reno v. American-Arab
Anti-Discrimination Comm., 525 U.S. 471, 482 (1999).
Accordingly, the district court did not abuse its discretion in
ordering the stay lifted. The district court’s order is
AFFIRMED.