SCOTUS addresses stay standard in immigration case

The Supreme Court held that 7-2 that the the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 does not alter the traditional grounds for a stay pending appeal.

The Court distinguished an injunction to stop the removal of aliens, which IIRIRA restricts, and a stay of a removal order.. The Court also clarified the traditional standard for stays. The Chief Justice wrote for the Court. Concurring, Justices Kennedy and Scalia advocated reading the traditional test narrowly. Justices Alito and Thomas dissented. Nken v. Holder, --- S.Ct. ----, 2009 WL 1065976 (Apr. 22, 2009) (No. 08-681).

          Nken asked the Fourth Circuit to stay his removal to Cameroon pending review of the Board of Immigration Appeals’s refusal to reopen the proceedings. The panel applied an IIRIRA provision, 8 U. S. C. §1252(f)(2), which bars a court from enjoining removal absent a “clear and convincing” showing. The government argued that a stay is simply a form of an injunction. Nken argued, and the Court agreed, that §1252(f)(2) does not apply to stays. The Court noted that the power to stay court orders is inherent, and avoids an untenable choice between speed and deliberation. The Court was “loath to conclude” that Congress would limit this power without saying so expressly. Moreover, the “clear and convincing” standard would turn a stay into a full consideration of the merits.  Accordingly, the traditional test for a stay still applied.

          The Court reaffirmed that a stay is based on (1) a strong showing of likelihood of success, (2) irreparable harm, (3) injury to others, and (4) the public interest. The Court said this is not the same as the preliminary injunction standard, but there is “substantial overlap” between the two. The first two factors are most important, and a mere possibility of success and injury is not enough. See Winter v. Nat. Resources Def. Council, 129 S.Ct. 365 (2009) (summary). Because aliens can still continue their appeals, removal itself is not irreparable harm. The Court also said the third and fourth factors “merge when the Government is the opposing party,” and that courts should not make any across-the-board assumptions about public interest, such as that these factors “ordinarily” weigh in favor of the applicant.

          Kennedy and Scalia concurred fully but also advanced a strict view of the stay standard, which in their view was similar in practice to the clear-and-convincing standard. They expressed concern that the Ninth Circuit was granting too many stays in immigration cases. Critically, they asserted that: “When considering success on the merits and irreparable harm, courts cannot dispense with the required showing of one simply because there is a strong likelihood of the other.” They seem to be saying that not only do both factors need to be established, but the required showing is always the same as to each. This appears to be a rejoiner to Justice Ginsburg’s Winter dissent, which argued that Winter was consistent with a “sliding scale,” approach, permitting relief “based on a lower likelihood of harm when the likelihood of success is very high.”. 129 S.Ct. at 392.