Mohammad Ali Faruqi v. Department of Homeland Security

ORDER

We expedited this appeal and ordered briefing from the parties in order to resolve an issue affecting several other cases pending before us — that is, whether, in light of our decision in Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir.2001) (en banc), we have jurisdiction over an interlocutory appeal of a district court order denying a stay of removal in a habeas corpus petition brought under 28 U.S.C. § 2241 . See Andreiu, 253 F.3d at 480-83 (determining that stay of removal is not equivalent to injunctive relief). We conclude that we have appellate jurisdiction over such an interlocutory appeal, under 28 U.S.C. § 1292 (a)(1).

I

Petitioner Mohammad Ali Faruqi is a native of Pakistan and a citizen of the United Kingdom. Faruqi last entered the United States on June 6, 1999 under the Visa Waiver Pilot Program (‘VWPP”), 8 U.S.C. § 1187 . Visitors admitted under this program may enter the country without a visa, and may stay a maximum of ninety days, in exchange for waiving their right to contest any action for deportation against them, unless that challenge is based upon an application for asylum. 8 U.S.C. § 1187 (b)(2). Such visitors are ineligible for adjustment of status,…