The Supreme Court, in an opinion released today, has decided that immigrants seeking a stay of their removal from the United States while they appeal the removal order don't need to meet the restrictive requirements of 8 U. S. C. §1252(f)(2) before a court can issue a stay. Instead, the Court says that the traditional, more lenient, criteria governing stays should control the issue.
This does not necessarily mean that immigrants will have an easier time obtaining such a stay, however. The Court, in a majority opinion authored by Chief Justice John Roberts, explicitly states that appeals courts cannot assume that the balance of hardships favors applicants. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), courts of appeals did not have jurisdiction to review removal orders of aliens who had already been removed from the US. As a result, courts granted most aliens an automatic stay of removal pending review.
After IIRIRA, courts of appeals gained jurisdiction over the petitions of removed aliens and the presumption of an automatic stay was removed. IIRIRA also stated that "no court shall enjoin the removal of any alien ... unless [he] shows
by clear and convincing evidence that the entry or execution of such
order is prohibited as a matter of law." 8 U. S. C. §1252(f)(2).
Petitioner Nken asked the Fourth Circuit for a stay of his removal to Cameroon while the court considered his petition for review of a BIA decision denying his request to reopen removal proceedings. The circuit's precedent followed the language of 8 U. S. C. §1252(f)(2), and placed a high hurdle in front of applicants wishing to stay their removal from the US.
Nken argued that tradition criteria for judicial stays should apply. The Fourth Circuit denied his motion for a stay without comment.
The Supreme Court agreed with Nken that the traditional considerations governing whether or not to grant a stay should apply. The Court looked to the basic functions of stays versus injunctions, as well as the specific language and statutory structure of 8 U. S. C. §1252, and determined that the restrictive language of 8 U. S. C. §1252(f)(2) did not refer to a judicial stay of removal proceedings.
The Court reasoned that injunctions are coercive orders that typically operate in personam. A stay, on the other hand, acts on the judicial proceeding itself. A alien seeking a stay of a removal order, the court said, is not seeking an order against the government that would prevent it from executing the removal order; rather, the alien has requested a postponement of the actual order. Thus, the request for a stay should not be subject to 8 U. S. C. §1252(f)(2)'s requirements for an injunction.
The Court also looked to the statutory language and structure of 8 U. S. C. §1252 in making its ruling. The statute mentions both stays and injunctions, the Court points out, indicating that Congress was aware of the distinction between the two. The Court also notes that there is an entire section that changed the basic rules for stays of removal. If Congress had wished to alter the standard governing stays, the Court stated, then it would have done so in that section, and not §1252(f)(2).
As mentioned above, however, the fact that the traditional four-factor standard applies to stays of removal does not necessarily mean that a petitioner will remain in the country. The government still has an interest that must be weighed alongside that of the movant, the Court said. There are also remedies that could repair any damage caused to the immigrant by removal, such as a return to the US and restoration of their previous immigration status.
The Court cautions that courts of appeals must adequately examine the factors at work in the decision to grant a stay, and not reflexively rule in favor of the applicant.