Supreme Court Determines That Traditional Stay Continues to Be Available to Aliens Appealing from Removal Orders

Posted on Categories Federal Law & Legal System, Human Rights, Immigration Law, Legal Writing, U.S. Supreme Court

As I blogged about previously, in January the United States Supreme Court heard oral argument in the case of Nken v. Holder, which raised the question of whether the 1996 amendments to judicial review provisions that removed the automatic stay of deportation pending appeal had replaced the automatic stay with a traditional stay standard or a heightened, extremely restrictive standard, one that almost never would allow a stay.

Today, in a 7-2 opinion authored by Justice Roberts, the Court announced its decision in favor of the alien, determining that the disputed 1996 statutory provision did not take away the appellate courts’ traditional stay power in appeals pending deportation.

Alito and Thomas, dissenting, argued that the majority’s interpretation of the statute “nullifies” (dissenting slip op. at 1) Congress’s effort to abolish the automatic stay in appeals pending deportation.

But the majority emphasizes that the traditional stay is not automatic, or, at least, should not be.  The Petitioner had come close to arguing that appeals in asylum cases should remain almost automatic, pointing  out in brief and argument that, for asylum seekers at least, the irreparable harm that could occur upon deportation–which for many asylum seekers includes torture, imprisonment, perhaps execution–is a heavy factor weighing in favor of granting a stay, and arguing that permitting the alien to remain in the United States pending the appeal causes little or no harm.  The majority disagreed with the latter point, observing,

Of course there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm. But that is no basis for the blithe assertion of an “absence of any injury to the public interest” when a stay is granted. Petitioner’s Emergency Motion for a Stay 13. There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and “permit[s] and pro-long[s] a continuing violation of United States law.”

The concurrence makes the point even more strongly, observing, “Under either standard, even the less stringent standard the Court adopts today, courts should not grant stays of removal on a routine basis.” (Concurring slip op. at 2.)

Justice Roberts is a good writer.  My favorite line appears on page 10 in the slip opinion.  In this passage, Justice Roberts is responding to the dissent’s argument that the statutory amendment limiting the availability of “injunctive relief” in these appeals should extend to “stays” because stays are, technically, a form of injunction:

Whether such a stay might technically be called an injunction is beside the point; that is not the label by which it is generally known. The sun may be a star, but “starry sky” does not refer to a bright summer day.

I agree very much.

I also want to point out that the Washington Post’s article about the decision, which seems to be getting the most play on the web right now, has a misleading headline, “Court makes it easier to fight deportation.”  As I stated above, and as both the concurrence and the majority observe, under either interpretation, the standard for a stay has become more narrow, making it more difficult to fight deportation since 1996.  Furthermore, the majority of the circuits were already following the interpretation that majority confirmed today, so the majority’s decision works less change than the dissent’s would have.

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