Yesterday the Supreme Court heard the argument in Nken v. Filip (formerly Nken v. Mukasey), which asks whether an alien who seeks a stay of deportation pending appeal must prove by clear and convincing evidence that his deportation is prohibited by law. The majority of courts have held that the ordinary standard for stays pending appeal continues to apply to such stays despite Congress’s enactment in 1996 of legislation providing that “no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien 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. sec. 1252(f)(2).
The question is especially important in cases like Mr. Nken’s, in which the alien’s underlying claim is that he will suffer severe persecution or even death if returned to his country. If such aliens must demonstrate their right to stay by clear and convincing evidence, i.e., more than a preponderance of the evidence, to obtain a stay, then the expected result would be that some aliens with valid claims would be returned to their home countries and possibly subject to persecution before having the chance to have their appeals decided on the merits.
Prior to the 1996 overhaul of the immigration statutes, an immigrant appealing from a deportation order received an automatic stay of deportation pending appeal. The old code also made it impossible for the immigrant to continue his or her appeal after deportation; deportation ended the case.
The 1996 amendments eliminated the automatic stay, but also eliminated the provision that ended an appeal after deportation, providing instead that an alien may continue his appeal after deportation. The amendments also added various limitations on judicial review, including the above-quoted portion of section 1252(f)(2).
Since then, the majority of circuit courts have held that sec. 1252(f)(2) does not apply to stays pending appeal, reasoning that the verb “enjoin” means something distinct from “stay,” especially in view of the fact that applying the “clear and convincing evidence” standard probably means that only a citizen or someone else with a clear legal right to remain in the country would be able to obtain a stay. As Judge Easterbrook observed in the Seventh Circuit’s opinion siding with the majority, Hor v. Gonzalez, “an alien . . . who contends only that the immigration judge’s conclusion is unsupported by substantial evidence will be unable to demonstrate ‘by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law’ and thus would have no hope of a stay if §1252(f)(2) applies to requests for stays.” But some courts have held the opposite.
There were not many surprises in the questions asked in the argument yesterday. At the outset, Chief Justice Roberts was focused on the practical impact of ruling in favor of the Petitioner–i.e., the prospect that applying the ordinary stay standard to stays of removal would mean that almost all such stays would be granted, which seems inconsistent with Congress’s elimination of the automatic stay. Justice Scalia and some other justices also pushed the Petitioner’s attorney, Lindsay Harrison, on the question of to what the limitation on injunctions applies, if not stays pending appeal. There would be few reasons for an alien to seek to enjoin removal except through the ordinary appeal process.
Chief Justice Roberts and Justice Stevens also pressed Harrison on the question of whether the difference in standards really makes such a difference; in other words, in deciding whether to grant a stay of removal pending appeal, isn’t the court always deciding whether the alien might be entitled by law to stay? But the responses to those questions, as well as back-and-forth with the United States’ attorney in the following part of the argument, made clear that there is a real difference, because under the “clear and convincing evidence” standard, it seems that balancing of the equities is irrelevant. In other words, under that standard, it seems that the severity of the harm the alien fears upon removal coul not tip the balance in favor of the stay if there alien’s challenge is to the findings of fact, at least not unless the evidence is “clear and convincing” in favor of the alien.
I realize that this discussion is a little fuzzy, but as noted during the argument, that’s part of the problem with this statute–it’s difficult to understand what Congress meant when it stated that a trial standard, “clear and convincing evidence,” should apply in the context of judicial review of another court’s decision.
Perhaps the most important part of the argument, in attempting to predict the Court’s ruling, was the discussion of whether, in the view of the Deputy Solicitor General, the Supreme Court had violated the law by issuing a stay in Mr. Nken’s case pending decision on his petition for certiorari. At one point, Deputy Solicitor General Edwin Kneedler asserted that “1252(f)(2) allows a court to take the time necessary to rule meaningfully on the stay application. We do not believe Congress intended to divest the court of the ability to rule on the merits.” He also stated that under the Hobbs Act, despite section 1252(f)(2), there remains “a provision for a temporary — for a court to issue a temporary stay upon a showing of irreparable injury to allow the status quo to be maintained pending the court’s ruling on the interlocutory injunction.”
This position seemed to take a lot of the wind out of the Respondent’s interpretation, because, as Justice Souter asked, if such authority survives despite section 1252(f)(2), “[t]hen why doesn’t that provide the broader authority under (b)(3)(B) stay provision that your friends on the other side are arguing for?” Thus, the government’s concession that the statutory framework did not strip the court’s ability to preserve the status quo temporarily while it rules on the availability of the stay seems to have undermined its claim that the court nevertheless lacks the power to preserve the status quo during the remainder of the appeal.