Supreme Court: Use Traditional Standard for Stay of Removal–Not Clear & Convincing Evidence Standard

By University of Denver Sturm College of Law
Apr 23, 2009

The Supreme Court released its decision in /files/0/6/4/7/5/167292-157460/08_681.pdf”>Nken v. Holder, 556 U.S. ___, No. 08-681 (Apr. 22, 2009).

As the Court explained, this case arose from the change in judicial review procedures mandated by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, 110 Stat. 3009-546. Prior to IIRIRA most individuals who appealed a decision of the BIA received an automatic stay of removal pending judicial review, but they could not seek judicial review after being deported.

After IIRIRA, however, that all changed. According to the Nken Court

First, Congress lifted the ban on adjudication of a petition for review once an alien has departed. See IIRIRA §306(b), 110 Stat. 3009–612 (repealing§1105a). Second, because courts were no longer prohibited from proceeding with review once an alien departed, see Dada v. Mukasey, 554 U. S. 1, ___ (2008) (slip op., at 19–20), Congress repealed the presumption of an automatic stay, and replaced it with the following: “Service of the petition on the officer or employee does not stay the removal of an alien pending the court’s decision on the peti-tion, unless the court orders otherwise.” 8 U. S. C. §1252(b)(3) (2006 ed.).

See Nken, slip op. at 4.

IIRIRA went on to limit courts’ review to instances where “the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” 8 USC § 1252(f)(2).

The petitioner argued that courts should apply the “traditional” stay factors:

Under that standard, a court considers four factors: “(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.” Hilton v. Braunskill, 481 U. S. 770, 776 (1987).

See Nken, slip op. at 5-6.

In contrast, the government argued that a stay is essentially a form of injunction thus the “clear and convincing evidence” standard of § 1252(f)(2) applies. After distinguishing between a “stay” and an “injunction,” the Court came down firmly on the side of the petitioner. See Nken, slip op. at 8-10.

Under the subsection (f)(2) standard, however, a stay would only be granted after the court in effect decides the merits, in an expedited manner. The court would have to do so under a standard—“clear and convincing evidence”—that does not so much preserve the availability of subsequent review as render it redundant. . . . In short, applying the subsection (f)(2) standard in the stay context results in something that does not remotely look like a stay. . . . We agree with petitioner that an alien need not satisfy the demanding standard of §1252(f)(2) when asking a court of appeals to stay removal pending judicial review.”

Nken, slip op. at 12, 13.

Importantly, the Nken Court reiterated that a stay is not a matter of right. It is firmly within a court’s discretion to grant a stay or not. Nken, slip op. at 14.

Chief Justice Roberts wrote for a majority of the Court. Justice Kennedy wrote a concurrence that Justice Scalia joined. Justice Alito dissented, with Justice Thomas joining.