Dan Marius Andreiu v. Janet Reno, Attorney General

HH (1966). grant- The district court properly judg-

ed Torres relief on his claim.7 The

ment of the district court is

AFFIRMED. ANDREIU, Petitioner,

Dan Marius RENO, Attorney General,

Janet

Respondent.

No. 99-70274.

United of Appeals, States Court

Ninth Circuit.

Argued and Submitted Feb. 2000.* Sept.

Filed * 7. The duly-constituted district court ordered that Torres be This matter came before a him, retry released unless the State elected to panel argument. motions without oral because it concluded that a retroactive hear panel argument motions decided that oral ing competence on Torres’s protect would not necessary supplemental and ordered Pate, process rights. his due 383 U.S. at briefing applicability on the 8of Godinez, Moran v. for a motions of removal. 1994) (amended opinion). Cir. The State does not contest this conclusion. A stays. motions

not supplemental requested panel of this court any, of if applicability, “the memoranda on 1252(f) petitioner’s motion [§] 8 U.S.C. jurisdic- have removal.” We for a and we pursuant to U.S.C. tion 1252(f)(2) to tem- applies that section hold stays. porary I Romania, where native of Andreiu is a Libera- the National a member of he was the revolution Party. During open tried to Andreiu began in par- broadcast that would radio station that, aas Andreiu testified ty’s views. al- activity, group political result of his to kill threatened government with the lied automo- hit him with an him and tried to bile. Paris, where he sent escaped to

Andreiu that he person insulting postcard an murder him. After ob- tried to believed French, and Austrian vi- taining German sas, immigrated to the United Andreiu September in 1991. On States Immigration Joaquin, National Linton Ser- Immigration and Naturalization California, Center, Angeles, Law Los (“INS”) Andreiu a “Notice vice sent petitioner. charge of remain- answer the Appear” to Linda S. (argued), Mark C. Walters per- longer than ing in the United States Justice, Washing- Wernery, Department 1227(a)(1)(B) 8 U.S.C. mitted. D.C., ton, respondent. for the 1996). ap- subsequently Andreiu (Supp. II asylum. plied immigration February On claim because asylum judge denied not credible. testimony was Andreiu’s BEEZER, O’SCANNLAIN Before: was based on credibility determination THOMAS, Judges. Circuit judge’s conclusion immigration BEEZER; by Judge Dissent Opinion im- description of events was Andreiu’s Judge THOMAS. BIA found that Although the plausible. re- testimony was consistent and Andreiu’s BEEZER, Judge: Circuit credibility determina- negative versed the for a Dan Marius Andreiu moves tion, asylum affirmed the denial of it Immigration Appeal’s Board The BIA concluded February removal, (“BIA”) order of final a well- to establish that Andreiu failed for review. of his our resolution or a clear persecution, founded fear the motion be- government opposes he did because probability persecution, satisfy the stan- Andreiu is unable cause that he documentary evidence produce enjoining an alien’s removal dard for 1996). of the National Liberation was a member II An- (Supp. associated with the Party people or that does that section argues dreiu

m3 government jurisdiction Romanian threatened to kill to review final deportation and him. Because the evidence did not estab- exclusion orders.” Kalaw v. objectively lish an per- reasonable fear of Cir.1997). secution, Depart- and because the State The new standards of review became ment cited Romania as a constitutional 1,1997. effective on April See Pub.L. 104- democracy that respects rights, human 309(a), § 3009-625; Kalaw, 110 Stat. asylum BIA decided that inappropri- ate. IIRIRA, 133 F.3d at however, 1149-50. applied special “transitional rules” to Andreiu filed a petition for review with “cases which a final deportation or ex- requested this court and a stay of his clusion order was filed after October stay, removal. In the motion a An- 1996, and argued dreiu that he was which were by pending detained April before during INS the proceedings Kalaw, before the 1997.” 133 F.3d at immigration judge prevented and was 104-208, 309(c), § Pub.L. 110 Stat. 3009- from obtaining documentary evidence. 625 to -627. rules, Under the transitional Andreiu also that asserted the BIA’s re- aliens encountered IIRIRA’s elimination of quirement that produce he evidence to the stay: automatic “Service of peti- support his testimony credible contrary is review of an [for order of removal] objective to the rule that evidence a not stay does the removal of an alien pend- persecution “may well-founded fear of ing the court’s decision on petition, by production satisfied specific docu- unless the court orders otherwise.” mentary evidence or the credible and 1252(b)(3)(B); § U.S.C. see Pub.L. 104- persuasive testimony of the applicant.” 208, 309(c)(4)(F), § (ap- Stat. 3009-626 Ilchert, Singh plying discretionary stay to transitional Cir.1995) (internal quotation omit- marks cases). ted). 15, 1999, On March temporarily we Pursuant to our discretion under the stayed Andreiu’s removal pursuant to De rules, transitional we held that filing “[t]he INS, (9th Cir.1997). Leon v. 115 F.3d 643 of a stay motion for a or a request for a We subsequently appointed pro bono coun- stay contained in petition a for review will sel and requested briefing additional on stay petitioner’s a deportation temporarily 1252(f)(2)’s applicability a stay until the court rules on the motion.” removal pending resolution of a Leon, De 115 F.3d at 644. When review- for review. ing the merits of discretionary stay re- quest, required we petitioner to “show II either a probability of success on the mer- September Prior to the 1996 enact- possibility its and the of irreparable injury, Illegal ment of the Immigration Reform or that serious legal questions are raised Immigrant Responsibility Act of 1996 and the balance of hardships tips sharply (“IIRIRA”), 104-208, Pub.L. No. 110 Stat. petitioner’s favor.” Abbassi v. (1996), 3009-546 stays of removal were Cir.1998) (applying pre- generally automatic. See 8 U.S.C. standard). 1105a(a)(3) (1994) (“The liminary injunction service of the petition for review ... shall the de- Because Andreiu’s proceedings portation of the alien determina- began April after the transitional court, tion of petition by unless the apply stay request. rules do not to his court otherwise directs or unless alien 309(c)(4), Pub.L. 110 Stat. aggravated convicted of an felony Kalaw, 3009-626; 133 F.3d at 1150. We ”), .... repealed U.S.C. must therefore 1252(b)(3)(B). determine the un- standard grant The of automatic der which IIRIRA, permanent ended with the IIRIRA’s passage rules allow which “dramatically altered this grant court’s us to of removal. action”). “Stay” postponement “[t]he

III or the judgment, proceeding, halting of IIRIRA argues government show definitions Id. at These like.” stays, granting standard changed “enjoin” includes meaning that the shall en “no court requires and now “stay.” to a pursuant alien join the removal “stay” “enjoin” this section unless final order common use convincing evi by clear not mutual- they alien shows also demonstrate of such entry or execution dence these terms use ly exclusive. Courts often law.” 8 a matter of prohibited order is that “en- to indicate interchangeably or 1252(f)(2). contends Andreiu See, e.g., “stay.” encompasses join” does Co., 404 U.S. v. Nash-Finch NLRB only it addresses because stay requests 373, 328 139-41, 144, L.Ed.2d 30 92 S.Ct. petition for to the actions collateral (1971) attempt NLRB’s (holding that the his should review that we process, and court a state “enjoin” or “restrain” to discretionary traditional under the motion exception of 28 injunction fell under Abbassi, F.3d at 514. test, 143 stay the United “A 2283: court U.S.C. 1252(f)(2) to injunction an whether not To determine States except as “we must first look in court stays, a State applies proceedings in point ... statutory language: starting by Congress 'The authorized expressly for if language, ....”) added); v. a statute is Gruntz Coun- interpreting (emphasis clear, (In Gruntz), that is the Congress is 202 the intent of re F.3d Angeles ty Los ” (en banc) v. (9th Cir.2000) States (holding the matter.’ United 1074, end of 1087 (9th 1102, 1105 Morales-Alejo, 193 F.3d [bank- not intend the “Congress did Cir.1999) Hosp. Good Samaritan (quoting all state criminal enjoin ruptcy] 409, 402, Shalala, 113 S.Ct. 508 U.S. v. automatically”) (emphasis proceedings (internal (1993) 2151, cita 368 124 L.Ed.2d added); Management Reinsurance Pacific omitted)). In inter quotations tions and Corp., 935 F.2d v. Reinsurance Corp. Ohio statute, “the are mindful of we preting (9th Cir.1991) (applying 1019, statute 1022 construing any longstanding principle an interlocu- appeals from proscribes stat ambiguities lingering enjoin an arbitra- “refusing tory order v. Cardo of the alien.” INS utes in favor from court’s “denial appeal tion” an za-Fonseca, 107 S.Ct. U.S. added). 480 arbitration”) (emphasis (1987). Similarly, L.Ed.2d also stay have temporary for a Motions a statute to dis not construe “we should the same stan- reviewed under long been authority equitable place courts’ traditional injunc- preliminary motions for a dard as command,’ an ‘ines or the ‘clearest absent PACCAR, Inc., See, v. e.g., Coleman tion. contrary.” Mil inference’ to capable 845, 1305, 1301, 96 S.Ct. 424 U.S. - French, -, 120 S.Ct. U.S. ler (Rehnquist, Circuit Justice L.Ed.2d 67 (2000) (in L.Ed.2d 1976) (“A of ... staying the action court omitted). ternal citations take into agency must an administrative 1252(f)(2) power harm irreparable limits a court’s factors such Section account merits.”) At alien.” “enjoin the removal on the probability of success 1252(f)(2)’s omitted); Abbassi, use of (internal issue is whether citations encompasses tempo- “enjoin” (“We stay requests the word evaluate at 514 We hold alien’s removal. rary stay of an employed the same standards under that it does. motions for evaluating courts district relief’) (citing Lo- injunctive preliminary pro- “Enjoin” legally as: “To is defined Heckler, pez v. injunction.” Black’s hibit or restrain Cir.), grounds, other part reversed ed.1999); see also Law Dictionary 104 S.Ct. “injunction” as (defining “[a] id. at 788 1983)). (Rehnquist, Circuit Justice commanding preventing order

1H5 that, IIRIRA, States, argues Andreiu “enjoin” applies only permanent injunc- (1994) 126 L.Ed.2d 615 (“Judges should Section tions. eliminates courts’ hesitate to treat statutory terms [as (other Court) than jurisdic- surplusage] in any setting....”); Cardo enjoin tion “to operation restrain the za-Fonseca, 480 U.S. at part the provisions of IV of this subchap- (“Where Congress particular includes construction, ter.” Under Andreiu’s sec- language in one section of a statute but demonstrates that omits it in Act, another section of the same intended to define applying “restrain” as generally presumed it that Congress only orders to define acts intentionally and purposely in the dis “enjoin” referring solely permanent exclusion.”) (internal parate inclusion or relief. Andreiu also that Congress’s (stating that filing petition “[t]he for of See, Miller, meaning of that e.g., word. review does not of itself suspend or 2251-52 (noting motion “for operation of the of the agency, order a temporary restraining prelimi order or

but appeals the court of in its discretion nary injunction enjoin operation of suspend, or in restrain whole or in added). stay”) the automatic (emphasis part, operation of the order.... The Indeed, appeals, suggests court of at the Andreiu hearing time of that we review application an interlocutory for injunction stay requests under the in preliminary ... may temporary stay continue the junction standard, an example of a added). suspension_”) (emphasis power enjoin. court’s to temporarily Black’s Law Dictionary (stating that to

Although 1252(f)(1), in “enjoin” section “enjoin” is to by injunction”); “restrain id. and “restrain” apply to wide variety a of actions, (defining “enjoin” “preliminary injunction” the use of in section 1252(f)(2) injunction”). relates a solely “temporary to an alien’s re- We are not 1252(f)(1) Compare 1252(f)(1), moval. 8 U.S.C. convinced that any section court, (stating that no other than the act, Su- other interpretation counters our of Court, preme “enjoin shall or restrain the “enjoin.” INS, Song Accord operation provisions part of IV of (C.D.Ca.2000) (hold F.Supp.2d subchapter[, §§ this 1221-1231 in ing habeas proceeding “[b]y that 1996) II (Supp. (addressing inspection, ap- terms, the IIRIRA standard sec [under prehension, examination, exclusion and re- 1252(f)(2) clearly applies ] Pe because moval) ]”), 1252(f)(2) with id. at section titioner seeks a stay deportation.”); of Hy (stating that “no enjoin court shall Blackman, polite v. F.Supp.2d alien”). any of removal in Nothing section (M.D.Pa.1999) (holding proceed habeas 1252(f)(1) indicates that “restrain” applies 1252(f)(2) ing that section applies to a exclusively to temporary orders or that motion); Naidoo v. 39 F.Supp.2d “enjoin” is constrained to permanent relief. (W.D.La.1999) (same). pertain operation These terms to the of “enjoin” of definitions immigration thus, different provisions; “stay,” in ordinary addition to courts’ use failure use “restrain” section terms, 1252(f)(2) indicate that mean shows that term does not removals, ing “enjoin” refer to of a not that it is includes limited to relief or that temporary temporary stay. it im- We constitutes therefore hold that proper 1252(f)(2)’s surplusage, see v. United section power limit on the Ratzlaf 1996). 1101(a)(47)(B)(i) Be- II (Supp. an alien removal “enjoin” the

courts to i.e., that we stay, a removal moves stay of Andreiu to the cause clearly applies petition a for final pursuant resolution a pending “enjoin,” his removal order review. petition of his order resolution 1252(f)(2)applies. review, section IV argues also . section Andreiu end with analysis should our Although high 1252(f)(2) require improperly would statutory language conclusion Congress’s intent standard obtain er clearly demonstrates 1252(f)(2) merits section on the than to succeed (stat 1252(b)(4) F.3d at Morales-Alejo, 193 stays, review, U.S.C. see 8 further assertions to Andreiu’s address we find “the administrative part ing Andreiu ar- particular, In contrary. unless rea are conclusive of fact ings 1252(f) of section that the structure gues compelled adjudicator would sonable application precludes deci contrary, [and] a conclude 1252(f)(2) stays. for admis eligible is not that an alien sion held that Supreme Court is conclusive the United States sion to injunctive relief limits “classwide law”). contrary to Even manifestly unless sections 1221- operation Andreiu’s characteriza if we assume this ban does not specifies that but correct, applying standards is tion of the Reno v. individual cases.” extend to stay is for a on motions higher standard Anti-Discrimination American-Arab Rat superfluous. See not inconsistent Comm., zlaf, 510 U.S. (1999); see also 8 L.Ed.2d (other (“[N]o changes sweeping IIRIRA “introduced Court) juris have shall the than Kalaw, 133 immigration laws.” into our opera the enjoin ... to or restrain diction to changes was of these F.3d at 1149. One ... other 1231] 1221 to [sections tion of petition for of an alien’s the review allow of such application to respect with than longer in the if alien is no even the review alien-”). an individual to provisions (re 1252(b)(3)(B) country. See 8 U.S.C. Andreiu, 1252(f)(1), to according Section 1105a(c)). Increasing placing 8 U.S.C. review for class only collateral addresses stay a removal order needed to the burden actions; therefore, interpret we should intent vest with IIRIRA’s “to is consistent 1252(f)(2) only limiting collateral section jurisdiction appellate BIA with final injunctive relief for individuals. deportation proceedings.” most INS 1252(f)(1) agreed Even if we section Kalaw, also at see Ameri we review—and only to collateral applies can-Arab, at here —we issue not address that do aimed IIRIRA are (“[MJany provisions of language suggest- statutory in the nothing Executive’s discretion protecting 1252(f)(2) only implicates ing that section indeed, fairly can be from the courts— 1252(f)(2) lim- matters. collateral Section legislation.”) of the to be the theme said “enjoin the removal power a court’s to its has original). (emphasis a final order un- pursuant alien to expedite to clear its removal made desire refers this section.” “Section” der has even foreseen proceedings implicates of section whole alien with a meritorious possibility that an removal, judicial review of orders direct from may be removed for review 1252(f). See Ameri- merely subsection grants peti country a court before can-Arab, 525 U.S. 1252(f)(2) standard, al The section tion. reference to (holding 1252(g)’s that section applied severe though it entirety of section” refers to sec- “this with stays, is consistent 1252). Moreover, is a a BIA decision policy goals of IIRIRA. provisions See 8 U.S.C. “final order” of removal.

1H7 1252(f)(2) Andreiu contends as well that applying “appears to displace” pre- 1252(f)(2) section inappropriately standard). IIRIRA stay compels the court engage in a full re 1252(f)(2) We hold applies to argument view merits. This un is an alien’s motion final removal persuasive. The need to examine the mer order pending resolution of a petition for a petition for review will often exist review. under both the standard of section 1252(f)(2) preliminary injunction and the V standard that Andreiu advances. See Abb assi, 1252(f)(2), Under section 143 F.3d at we (requiring cannot alien to “show final probability either a order of removal success “unless the alien the merits and the shows possibility of clear irrepara convincing evidence injury, ble or that legal questions serious entry or execution of such order is are raised and the balance of hardships prohibited as a matter of law.” We must favor”). sharply in tips petitioner’s now determine what this standard re- quires. We also find unconvincing Andreiu’s as- sertion that the structure of section 1252 “Phrases such as ‘clear and convincing,’ precludes application of section ‘clear, cogent, ‘clear, convincing,’ and stays. Andreiu notes that section unequivocal, and have all convincing’ been 1252(a)(1) “[¿Judicial declares that require used to a plaintiff prove his case of a final order of governed to a higher probability than required by only by Act, [the Hobbs preponderance-of-the-evidence stan §§ 2341-2351 (providing courts of appeal dard.” ex Cooper rel. v. Mitchell California ’ jurisdiction exclusive over certain ad- Theater, Br os. Santa Ana decisions),] ministrative except as provided 93 n. 70 L.Ed.2d 262 (b) in subsection of this section.” Section (1981). Similarly, we have held that “the 1252(b)(3)(B)eliminates the automatic ‘clear convincing’ is not burden provision, provides but no standard for same as proof beyond a reasonable granting a discretionary stay. According [Ajfter doubt.... discussing prepon Andreiu, 1252(a)(1) indicates derance of the beyond evidence and a rea that section applies only col- standards, sonable doubt [Supreme] lateral review because would Court referred to the clear convincing have situated a new standard for tempo- standard as ‘an intermediate standard of 1252(b). rary stays in section ” proof.’ Meza-Soria, United States v. Although lucidity of section 166, Cir.1991) 935 F.2d 169 (quoting 1252(a)(1) would have benefitted from the Kramer, Santosky 745, 756, 102 v. 455 U.S. placement standard in section (1982)); S.Ct. 71 L.Ed.2d 599 1252(b), Congress’s failure to do so is not also Dictionary Black’s Law (stating 577 1252(f)(2)

paramount. Section explicitly that clear and convincing evidence “indi states that it applies “[njotwithstanding thing cates] that the to be proved high is other any provision Moreover, of law.” ly probable reasonably or certain. This is 1252(c) (d) sections govern judicial greater a burden than preponderance of of petitions review for review. The struc evidence, ... but less than evidence 1252, therefore, ture of section not does doubt....”). beyond a reasonable 1252(b) require that section act as sole provision respect With to petitions challenges, related factual to for review 1252(f)(2) requires and does not section gainsay our that conclusion that the alien 1252(f)(2) show clearly clear and applies convincing that evidence grant of a stay. removal order Maldonado was on an based errone Cf. Fasano, v. F.Supp.2d 67 1175 ous finding of fact. difficulty, We have (S.D.Cal.1999) (stating however, that in applying this to legal standard

1118 record”); (defining at 814 id. in the convincing dence “clear and because questions “[ijntent appar that is intent” as issues. “manifest only to factual speaks evidence” obvious”). ‘contrary to term Cooper, rel. “The See, ex or ent e.g., California (stating existing that law.” contrary to S.Ct. law’ means U.S. con- States, as “clear proof such of v. United standards Olais-Castro concern- Cir.1969) factfinder “the vincing” (citing instruct Calla n. 8 society confidence our degree States, of ing the 285 U.S. v. han United in the correctness have (1932)). he should thinks More L.Ed. S.Ct. “ type of a particular conclusions factual ‘dia is defined “contrary” specifically, (internal quota- citation adjudication”) different,’ character ‘opposite metrically ” omitted); Black’s Law Dictio- marks ‘mutually opposed.’ nature,’ something (defining “evidence” - nary 576 -, -, Taylor, U.S. v. Williams exis- disprove the prove to “that tends fact”). alleged Section tence In (2000) Third New Webster’s (quoting 1252(f)(2)’s a factual standard imposition of (1976)). That Dictionary 495 ternational a to establish standard compels us proof legal conclusion a different we reach would reflects that legal issues best insufficient; grant is intent. Congress’s standard, we “manifestly contrary law” clearly that “clear mandate order is Congress’s must hold that removal remov show convincing existing evidence” law. to an antithetical of law” prohibited as matter order “is al Congress’s requirement that We believe Section analysis. our informs evidence” that convincing of “clear and placed the burden significantly heightens a matter “prohibited as order is thus, our stay; requesting a an alien satisfied, legal regard with best law” is legal conclusions novo review normal de issues, an alien establish by requiring Rather, respect inappropriate. is “manifestly con order was that a removal law, that the stan we believe questions represents a standard law.” This trary to that best adheres of review dard and convinc of “clear approximation legal we of section language goal IIRIRA’s evidence” and furthers ing unless removal order stay a final will BIA orders. finality of respecting the order establishes alien (D) 1252(b)(4)(C), (stating “manifestly contrary law.” Attorney and the decisions eligibility “manifestly Although phrase discretionary judgment General’s well-established, its contrary to law” is not manifestly “unless asylum conclusive “Manifest” describes are familiar. terms American-Arab, law”); contrary to clear, indisput apparent, something Kalaw, See, e.g., Dickinson able, or plain. obvious at 1149. Zurko, 150, 155, 119 S.Ct. us to that in order for We hold (1999) “mani (stating that L.Ed.2d a final pursuant to of an alien removal error,” case of error” “clear fest 1252, the alien must under section order be “might “clearly wrong” are terms 1) convincing clear and show either: thing”); Web the same thought to mean an was based on that the order evidence Dictionary International Third New ster’s 2) fact; or establish finding of erroneous as, (1993) inter (defining “manifest” contrary manifestly was that the order alia, easily understood being “capable of law. not by the mind: recognized once obvious”); Dictio Black’s Law obscure: VI as (defining “manifest error” nary 563 for a motion not Andreiu’s We do indisputable, plain error that is “[a]n showing there is no stay because complete disregard a that amounts an erroneous order was based evi- BIA’s law or credible controlling

1H9 finding of fact or that it was manifestly I contrary to law. Because we interpret The pivotal issue appeal this is wheth- law, opinion new this prejudice will not er the “stay” terms and “enjoin” as used in subsequent motion for a of Andreiu’s § 1252 are synonymous. They removal, he should choose to file one. not, either as a general matter of legal MOTION FOR STAY DENIED. application or under plain words of the statute.

THOMAS, Circuit Judge, dissenting: A The majority disposition is at odds with language 1252(f), § of 8 U.S.C. As a matter of general law, federal § structure aas Supreme whole and Court conclusively differentiated asylum theory. The result is not between trivial. the two concepts in Gulfstream Rather preserving than Aerospace the status quo Corp. v. Mayacamas Corp., while 271, our court considers the U.S. merits of a 108 S.Ct. 99 L.Ed.2d 296 (1988). review, majority’s In interpreting ruling the terms used permit § will in 8 immediately 1292(a)(2),1 the INS expel U.S.C. the Court ob- asylum-seekers served: to the very countries

where they may have suffered brutal per- With the merger of law equity, secution. circumstances, Under these which was accomplished by the Federal consequences of may removal be only Procedure, Rules of Civil practice “severe,” many but in cases describing life-threaten- these injunctions lost ing, given the concerns led all connection with the reality of the asylum afford persecution. victims federal procedural courts’ system. Gordon, See 8 Charles Stanley Mailman & 485 U.S. at 108 S.Ct. see also Stephen Yale-Loehr, Immigration Law Baltimore Bodinger, Contractors v. (Rev. and Procedure 104.13[4][d][iii] U.S. (1955); 99 L.Ed. 233 ed.2000). Further, limited access to courts Wright, Miller & Cooper, Federal Practice countries, in many as well as the reluc- and Procedure: Jurisdiction 2d tance of persecuting governments to re- (1996).

turn asylum-seekers successful Prior Gulfstream, certain orders that States, United will likely render any post- stayed stay judicial or refused to proceed- granted relief our court moot. ings were injunctions considered under the Thus, I respectfully dissent. Enelow-Ettelson doctrine2 and therefore 1292(a)(1) 1. 28 provides, perti- merger lor. After the of the two systems, part: nent (and to) situations arose continue in which plaintiff pleaded a law claim appeals and the [T]he courts of jurisdic- shall have interposed equitable defendant an appeals tion of defense. from [ijnterlocutory ... or- When the trial court allowed the equitable ders of granting, the district con- first, defense to be tried jury, and without a tinuing, modifying, refusing dissolving incidentally staying the trial of law injunctions, refusing to dissolve or modi- equitable claim until the matter re- fy injunctions, except where direct review solved, Enelow-Ettelson held that this was in the had Court ... granting in effect the “injunction" of an Co., 2. See Metropolitan Ettelson v. Ins. Life a law action and therefore invoked 317 U.S. (1942); 87 L.Ed. 176 1292(a)(1) an appeal allow immediate Co., Enelow v. New York Ins. Life injunction. from the It would not amount (1935). 79 L.Ed. 440 however, injunction, positions if the explained As in the Commentary Practice 9 the two matters were reversed—if the main § U.S.C. 16: equity, claim was in example, and a law, At chancery (eq- common the of court "stay” sought of its trial was so as let a uity), in jury, which there was no legal interposed could by counterclaim the defen- enjoin court, proceeding first, a in a law get dant tried jury. to a case, mode the of by trial of course In disposing that the order of the vice-versa, jury. There was no A "stay” parallel however. would not then a law court court enjoin of law could not the disposing chancel- request injunction for an 1120 279, stream, 1133. at S.Ct. 485 U.S. 108 under

immediately appealable substantive stay may a have at such 1292(a)(1). Gulfstream, 485 U.S. While See § is es effect, how- removal order Gulfstream, underlying In the 279, 1133. 108 S.Ct. the Ene- re rejected court’s ever, Court the sentially the non-final antiqu- a Butros v. rule as “sterile See appeal. an alien’s low-Ettelson view of Cir.1993) “that orders 1142, held ated doctrine” 1145 F.2d 990 pro- ‘legal’ stays of denying exists, granting or looks (“when what appellate are not au- grounds ‘equitable’ ceedings on turn not to can well out final status like a 1292(a)(1).” under appealable tomatically Lok, status”); I &18 Matter a final of 287, 108 S.Ct. at 485 U.S. Gulfstream, (BIA 1981) (“In those N Dec. 1133. the court where relatively instances rare that the “[a]n [BIA] held Instead, determines appeals] first [of Gulfstream only law, that relates court fact or erred, a federal matter of order as a litigation of progress or finding, the conduct rever deportability respect to its not consid- ordinarily is court before that order of [BIA]’s sal of is not therefore injunction and ered the alien’s and restores the order nullifies 1292(a)(1).”3 Id. at under appealable status.”) (em resident permanent lawful Supreme Court 1133. added). stay therefore order phasis 1292(a)(1) “[sjection hold that went on to of quo the status merely preserve acts juris- appellate provide will ... continue to re acting rather than litigation, deny orders diction over independent of by the INS an action strain prac- have injunctions and orders that Moreover, de proceedings. the instant denying injunc- granting of tical effect restraining effect” of “practical spite the ‘serious, irrepara- perhaps have tions and executing Andreiu’s the INS from ” at consequence.’ ble that a of order, cannot show the INS v. American (quoting Carson S.Ct. 1133 “serious, a order will have the removal Inc., Brands, it upon consequence” irreparable perhaps (internal (1981)) quota- on the merits claims until Andreiu’s omitted). tions Carson, 450 court. by the resolved ap- Although addressed Gulfstream Balti (quoting 101 S.Ct. 993 U.S. injunctions a pealability Contractors, 181, 75 S.Ct. 348 U.S. at more context, in de it is useful non-immigration 249). a final a order termining whether subsequently con- Rehnquist Justice scope within falls of removal stays and between firmed the distinction 1252(f)(2). Application “enjoin” in term Inc., PACCAR, v. injunctions in Coleman sug test two-pronged Gulfstream majority: cited to a removal order gests that a lower staying the A court action First, injunction. of an equivalent agency must court or administrative order order is “an stay of removal irrepa- into factors such take account progress only to the conduct relates of success probability harm and rable court.” See before litigation [the] Gulf it related rule because the Enelow-Ettelson chancery was no there such because litigation before only to the conduct of thing law. common substan did not affect Arbitrability district court Siegel, “Appeals from David D. Determinations”, U.S. at 281- the case. See Commentary tive issues Practice Abernathy S.Ct. see also U.S.C. 16. Edison, Southern California 1989) ("definition injunction does stay pending Gulfstream, Cir. which involved in orders litigation Colo- restraints or directions not include of state resolution parties or their concerning counsel, conduct of Dist. v. United Water rado States, Conservation River issues substantive unrelated trial.”) (internal action, awaiting (1976), stay at while issue held L.Ed.2d omitted). injunction citations absent be considered an could not H21 the in merits. But the absence of a Responsibility (“IIRIRA”), Act of 1996 statute,, rule controlling precedent Pub.L. 104-208, No. (1996), Stat. 3009 there requirement by is no fixed as amended 11,1996, that a Act of Oct. Pub.L. No. court recite the fact that it (1996), has taken Stat. 3656 and more consideration, specifically, these in into or explain discerning its the mean- ing of the provisions various taking reasons for the action which it section 1252. did. 1301, Americarir-Arab, In 1305, 845,

424 U.S. example, the Su- (internal preme omitted). Court interpreted L.Ed.2d 67 citations narrowly In the so, three actions doing listed in Rehnquist rejected Justice 8 U.S.C. 1252(g) “only to contention of actions Secretary of Transporta- Attorney General take: tion that a her by issued ‘decision or stay the court of action’ to ‘commence proceedings, adjudicate appeals equivalent is to a preliminary in- cases, or execute removal junction orders’.” by issued district court and 482, U.S. at 119 S.Ct. 936. rejected It governed by must Federal Rule of Civil notion 1252(g) 65, “covers the uni- Procedure governs injunctions.4 which verse of claims—that it is a See id. of ‘zipper sort clause’ that says judicial ‘no B in deportation cases unless this sec- ” tion provides judicial general 482, The review.’ distinction at drawn 119 S.Ct. 936. Supreme Court continues Gulfstream into the immigration statutes. “To deter- In interpreting 1252(g), Su mine the meaning of a statutory pro- preme Court looked first to history its vision, we examine not only specific enactment, the rationale for its as well as provision issue, but also the structure of section 1252’s structure as a whole. See whole, the statute as a object including its (“[sec id. 483-86 & n. 119 S.Ct. 936 policy.” Hosp. Children’s and Health tion 1252(g)was directed against particu Belshe, Center v. 188 F.3d attempts lar evil: impose judicial con Cir.1999). approach This great im- discretion”). upon straints prosecutorial portance in interpreting changes made It determined that Congress “good had the Immigration and Nationality Act reason” to focus on the three discrete (“INA”) through the enactment of the Ille- events listed in the statute. Id. at gal Immigration Reform Immigrant S.Ct. 936. “At each stage the Executive majority's 4. The analogous resort case Bankruptcy Code. See 11 U.S.C. analysis majority misses mark. cites (In County Gruntz), Angeles Los re Gruntz Co., NLRB v. Nash-Finch 139- (9th Cir.2000) 202 F.3d (en 1081-82 (1971), 30 L.Ed.2d 328 banc). Act, Anti-Injunction Like the the “au in which the Court addressed the stay” tomatic bankruptcy sweeps broadly scope Act, Anti-Injunction enjoining has the effect of judicial, generally prohibits the federal proceeding, administrative including or other interfering courts from pro with state court (cid:127)those in the state courts. See id. ceedings except exceptions. in certain narrow specifically patterned procedure the au under teaching sought by majority cannot be tomatic stages “to injunction of an derived from Anti-Injunc Nash-Finch: ordinary civil case.” Elliott Associates v. Act "reflects principles fundamental (In Chateaugay equity, comity, Corp. Chateaugay re Corp.), and federalism which normal ly (2d counsel 1989). federal 880 F.2d interference with Cir. Even in judicial state proceedings,” Ulloa, context, Sys Western bankruptcy automatic tems, Inc. v. differentiated bankruptcy from court-or 1992), Cir. ability does not involve the injunction, dered which issues under 11 equitable court to powers exercise ("The id. at bank judgment enforcement of a being that is ruptcy power injunctive court's is not limited considered on appeal. exceptions the delineated to the automatic Similarly, the stay” "automatic in bank- stay, nor proceedings.”). to civil confined ruptcy is a term of art defined 1122 which vio- immigration officials endeavor, practice to abandon discretion

has class of of a rights the constitutional was enacted IIRIRA lates time at the Montes, regular prac F.2d at 535. in a engaging aliens.” INS had been ‘de as (which jurisdic- to be known come had tice reasoned that exclusive courts action’) that discretion exercising of sec- ferred appellate courts given tion its simply for or reasons humanitarian for 1105a(a) from “the distinguishable tion 483-84, 119 S.Ct. at own convenience.” its to wield court authority of a district However, poli action” the “deferred 936. wholesale, care- a when powers equitable litigation significant resulted cy had orchestrated, constitu- program fully the INS refused whom aliens for from Smith, 676 alleged.” violations tional this Against action.” “deferred exercise Montes, F.2d at also see F.2d Court Supreme backdrop, historical 1252(g) seems that “[s]ection observed “the district emphasizing While give some measure designed to clearly the mer rule on authority to had no action’ decisions ‘no deferred protection deportability issue underlying discretionary determinations.” and similar discretionary relief as to entitlement 485, 119 S.Ct. 936. Id. at individual,” none the district courts to the correct leads approach A similar in- declaratory and provide “could theless 1252(f)(2). Prior to of section construction violating program against relief junctive 1105a(a) enactment, IIRIRA’s Montes, 919 F.2d rights.” constitutional appeals court of vested with the INA Smith, & n. F.2d at 1033 (citing at 535 “all to review jurisdiction the exclusive 23). rule, did not petitioners this Under made deportation final orders deportation individual to set aside seek States within United aliens against cases, Instead, aliens in numerous un- proceedings orders. to administrative pursuant (de- 1252(b) injunctive and declara filed to obtain pre-IIRIRA] suit [the der hearings) ...” relief, example, protect for portation tory 1105a(a) (1976) Hai- see also (repealed); asylum-seekers against of a class of rights Smith, F.2d v. Refugee Center tian backlog of a clear a procedures meant 1982). Despite B Cir. Unit Montes, to chal asylum cases class 1105a(a) of re- by section placement constitutional statutory lenge on exclusively orders deportation final view of prohibition the inclusion grounds court, this appeals, court of Na in all employment bonds Court, recognized Supreme well Inc. Rights, Immigrants Center tional were to INS actions challenges all Cir. 1368-69 v. jurisdiction of exclusively to the committed appli 1984), recently, challenge v. Hai- McNary appeals. See the court of physical IIRIRA’s continuous cation of Inc., Center, Refugee tian pro “stop-time” requirement, presence (1991); 1229b(b) (1999), in vision, see U.S.C. 531, 535- 919 F.2d Thornburgh, Montes v. Tefel. Reno, (9th Cir.1990); also Tefel language of sec- cases track These (11th Cir.1999); 1286, 1296-97 180 F.3d 1252(f) clear that subsection and make Smith, F.2d at 1033. designed were provisions ffl’s view was Rather, governing except for the to prevent courts — “may sole appeals have court of while the injunctive classwide granting Court—from procedural alleged jurisdiction to review a result of declaratory relief as in an individual irregularities para- pursuant procedures IIRIRA new irregularities these the extent hearing to ability of (f)(1), preserving the while graph an indi- reversing may provide basis relief injunctive grant appeals courts Smith, deportation,” vidual through paragraph in individual cases authority did this exclusive Gordon, & Yale- (f)(2). Mailman pattern alleging “to suits not extend

H23 Loehr, Immigration Law and Procedure of the procedures new removal established (subsection (f) § 104.13[4][g][ii] is a section in legislation”: this that “relates to district court actions chal- These limitations do not preclude chal- lenging policies INS, practices and of the lenges procedures, to the new but the Department’s the Justice Executive Office procedures will remain in force while for Immigration (EOIR), Review and other such lawsuits are pending. addition, In agencies federal implement or enforce courts injunctive issue relief per- [Immigration Act].”). Nationality and taining to the case of alien, an individual interpretation an comports Such with the protect against any immediate viola- Supreme Court’s observation in dictum tion of rights. 1252(f) that section only “prohibits federal See H.R.Rep. 104-469(1), No. 104th Cong., courts from granting classwide injunctive (1996), 2d Sess. in, 473 available relief operation of sections (Mar. 4, 1996). WL 168955 short, In sec- specifies but that this ban does 1252(0 tion was never intended to have the not extend to individual cases.” Ameri- effect urged by majority. can-Arab, 525 U.S. at 119 S.Ct. 936. The relationship between paragraphs C (f)(1) (f)(2) is clearly embodied within The evolution of the present stay provi- the structure and headings of subsection sion, set forth at § 1253(b)(3)(B), U.S.C. (f) itself. general While the rule is that a provides further evidence majori- section heading should not limit ty misinterprets 1252(0(2). Prior text, meaning of the the titles of sub- enactment, IIRIRA’s filing (0’s paragraphs may be used “[flor petition for review automatically stayed a interpretative purposes” light to “shed petitioner’s deportation pending appellate some ambiguous phrase.” word or Broth- review in most cases. De Leon v. erhood R.R. Co., v. Baltimore & O.R. INS, (9th Cir.1997) (cit- 115 F.3d 519, 528-29, ing 1105a(a)(3), repealed U.S.C. (1947) (citations omitted). L.Ed. 1646 Sec- 306(b)). IIRIRA 1252(0 tion injunctive entitled “Limit on Aliens relief’; (0(1) convicted of an “aggravated subsection felo falls ny” within meaning INA, “In heading general”; of the finally, howev subsec- (0(2) er, were not entitled to an labeled as “Particular automatic cases.” Clearly, deportation juxtaposition pending of a broad appeal. See 8 para- 1105a(a)(3) (1995) general” graph U.S.C. to a spe- (repealed); Ar more —next —“In cific, INS, (9th limited thurs provision v. 959 F.2d Cir. —“Particular (0(1) 1992). cases”—establishes that paragraphs aliens, For these the court had the (0(2) are structurally related and that discretion a request for a stay of (0(2) paragraph conjunc- should be read in deportation after evaluating re (0(1). tion with paragraph quest under “the same standards em ployed by district courts in evaluating 1252(fl’s mo Section legislative slender his- tions for preliminary injunctive relief.” tory further confirms this construction: Abbassi, 143 F.3d at Artukovic v. “single district courts or courts of appeal Rison, Cir.1986). 784 F.2d do not have authority enjoin procedures This required standard seeking established alien pro- to reform the cess of removing illegal appeal to es aliens from the tablish “either a H.R.Rep. 104-469(1), probability U.S.” No. of success on 104th Cong., 2d (1996), Sess. and the possibility merits of irrepara available in, (1996). 1996 WL injury, ble While legal questions IIRI- serious RA section 306 is directed to “limit[ing] raised and the hardships balance of authority tips (ci Federal other than sharply petitioner’s favor.” enjoin omitted). Court to operation tations (re- 1105a(a) (1995) compare 8 changes” “sweeping effected IIRIRA 1252(b), “Re- entitled pealed). Section final de- to review jurisdiction this court’s orders of remov- for review quirements Kalaw orders. exclusion portation and for the Cir.1997). provisions al,” general provides orders, including rules review of removal rules place permanent put new law for re- service, content immigration proceedings apply to —or of review. view, scope and standard initi- were proceedings “removal” —that 1252(b). § generally U.S.C. or See Andreiu on aliens such as ated exceptions. some April after made to the changes part of the As However, 309(a). for those § IIRIRA elimi- IIRIRA process, for review petition pro- deportation in placed aliens who were con- stay provision automatic nated the and whose April ceedings before 1105a(a)(3), § pre-INA in the tained entered were deportation of final orders provision similar it with a replaced forth 30, 1996, Congress set after October aliens convict- provision applicable to stay govern these rules to specific transitional the under old felony aggravated of an ed Kalaw, 309(c); § IIRIRA cases. See 1252(b)(3)(B) now reads: Section INA. at 1150. F.3d officer or the petition the on “Service of an stay the removal not employee does spe- by governed proceedings These decision on the the court’s pending re- alien changes judicial cial “transitional other- court orders the unless petition, section changes, Among these

view.” 1252(b)(3)(B) (emphasis § lan- wise.” U.S.C. 309(c)(4)(F) IIRIRA reversed —in 1252(b)(8)(C) added); § 8 U.S.C. see also contained nearly identical that guage not (the “does petition for review filing of a pre- INA’s rules —the old permanent the re- to defer Attorney General the require stays pending respect sumption with alien”); Rep. No. H. Conf. moval of the for review petition appeal: “service (1996) Cong., 2nd Sess. 104th of an alien stay deportation the not shall (“As sec- in Senate amendment provided peti- the court’s decision pending the not petition does filing of the otherwise tion, court orders unless unless the of the alien stay the removal 309(c)(4)(F); § see 8 U.S.C. ...” IIRIRA in, otherwise”), available 1252(b)(3)(B). orders question Faced with § 24,1996). (Sep. 1996WL 563320 the neces- had an alien made of whether rules showing under transitional sary construction, statutory As a matter stay deportation discretionary for a knowledge- “presume we review, Cir- judicial the Seventh pending pertinent law existing able about INS, v. cuit Goodyear Atomic enacts.” Sofinet it legislation (7th Cir.1999), in Abbassi the held as Miller, 184- Corporation v. in- stays or developed for criteria general 158(1988). under Federal appeal junctions .pending express stan- provide not Congress did and 18 Procedure 8 Appellate Rules 1252(b) guide courts in dard in section stay between differences applied despite of a merits their assessment and the appellate rules under in which to logical place request, most the INA. under procedure sanctioned Hanousek, 176 such standard. See place Instead, adopting lan- rules, includ- F.3d at permanent Nothing in to that used virtually identical guage changes gen- ing 8 U.S.C. determining INA (1995) pre-IIRIRA (repealed), § 1105a eral U.S.C. deny requests whether forth the old set had under INA by aliens con- made jurisdic- the court’s guidelines governing felony, Congress aggravated victed of an Judicial for review. petitions tion over courts intention indicated now—as of final removal orders injunction stan- preliminary Act, the traditional chap- by the governed Hobbs before— forth in Abbassi as set in dard except provided ter 158 of Title Cir.1998) the mer- to assess 1252(a)(1); 1252(b). F.3d 513 8 See U.S.C.

H25 stay request its of a under the new law. construed —as the majority does—to be a 1252(b)(3)(B) Compare with 8 catch-all against ability our to grant any 1105a(a)(3) (1995) (repealed) type of equitable relief, including tempo (INS shall “stay the deportation of the rary restraining orders and stays in addi alien determination of the tion to the types injunctions, numerous of the court unless the court otherwise it would not have needed to carefully dis directs”). framework, Within this it is tinguish between the three distinct terms 1252(f) clear is not relevant to “enjoin,” “restrain,” “stay.” To inter question request removal pret “enjoin” (f)(2) as used in subsection pending appeal should granted or de- majority does renders the term “re Rather, Congress nied. left the traditional strain” as used in section standards used the courts unaltered. phrase “stay of removal” in section 1252(b)(3) as mere surplusage. See Wal D ters v. Metropolitan Inc., Educ. Enterp., The structure of section 1252 as a whole 519 U.S. also indicates majority reaches an (1997) (“Statutes L.Ed.2d 644 must be in incorrect conclusion. only specific The terpreted, if possible, give each word mention stays of of in section 1252 operative some effect”); Northwest Forest contained 1252(b)(3)(B), is in section enti- Resource Glickman, Council v. 82 F.3d “Stay tled of order.” Absent from section Cir.1996) (“We have long any is use of the word “stay”: [sjtatutes followed the principle that “Notwithstanding any provision other of should not be construed to surplus- make law, no court enjoin shall the removal of (internal age of provision.”) quotation any alien pursuant to a final order under omitted). marks As Court this section unless the alien shows clear pointed has in out circumstance, similar and convincing evidence that the entry or “the precision need for in legislative draft of execution such order prohibited as a ing” against counsels reading a precise 1252(f)(2). matter of law.” 8 U.S.C. By term as a “synecdoche” “shorthand” or for using 1252(b) “stay” term in section a broader reference. American-Arab, See and excluding 1252(f), it from section Con- atU.S. S.Ct. 936. clearly gress demonstrated it under- sectionl252(f)(2) The text also cannot stood the terms do not have the same be read in isolation because meaning and section 1252 as indicated its they intent that a whole expressly incorporates be differently. treated See the Hobbs Cardoza- Fonseca, Act as the backbone for the petition S.Ct. 1207 (“Where Congress particular includes review process lan- under the INA. See 8 guage in one 1252(a)(1). section but statute omits U.S.C. spe- Hobbs Act init another Act, section the same it is cifically allows the appeals court of generally presumed that Congress acts in- authority stay requests based on tentionally purposely and in the disparate equitable traditional previ- standards exclusion.”). inclusion or ously applied in assessing stay requests by aggravated First, only

Not felons. did Act Congress Hobbs distinguish be- makes clear tween the “stay” terms distinction “enjoin” and between orders that temporarily stay section it differentiated or suspend agen- between the an terms cy order, “restrain” “enjoin” injunction an order section “en- 1252(f)itself. If “enjoin” the term joining, setting aside, used or suspending ... (f)(1) (f)(2) in subsections were to be the order of the agency.”5 See U.S.C. 2349(b) 5. Section specifically provides that hearing and petition.” determination of the filing ''[t]he does not 2349(b) added). (emphasis In of itself suspend operation of the cases "in irreparable which damage would order in agency, of the but appeals result,” "may otherwise the court ... order a suspend, discretion restrain or temporary stay suspension opera- ... of operation of the pending order the final prevent- commanding or “court order be a (b). Act uses the 2349(a), The Hobbs §§ Dictionary Law Black’s or- an ing connection with action.” only in “enjoin” term ed.1999). See “in- injunctive relief. definition of permanent ders contrast, 2349(a). In lengthy §§ 2342 & list also contains junction” in reference term “restrain” it uses are affir- There injunctions. examples of relief, “stay as a such injunctive temporary ones, final, parte ex injunctions, mative determina- hearing and final per- mandatory, permanent, interlocutory, section See id. petition.” of the prohibito- preventive, preliminary, petual, 2349(b). spe- reparative, ry, provisional, quia-timet, demon- as a whole Reading section id. injunctions. See cial easily could have Congress strates that list, and their this exhaustive from Absent mean- clarify “stay” the word used definitions, “stay.” Noth- the term brief Hanousek, (f)(2). See paragraph ing not the the two plainer, ing could Instead, chose at 1120. same. word “enjoin.” The choice the word dictionary definitions best, resort At of section context “enjoin,” viewed meaning of the correct ascertain backdrop 1252 as a whole result, ambiguous provides 1252(b)(3)(B), of the evolution re a construction dictate would (f)(2) does that subsection demonstrates Cardoza- the alien. in favor of solved of removal. Fonseca, E mandate Supreme Court’s the light In a statute not construe statutory should the “we analyzing than Rather au equitable whole, majority traditional primari- courts’ displace as a the structure command,’ dictionary. danger The the ‘clearest on ly thority relies absent the loss of context. is the approach contrary,” an such inference’ ‘inescapable - majority. the that snares trap is the U.S. -,-, Such French, Miller v. see ma- Dictionary, the Black’s Law Quoting L.Ed.2d 326 S.Ct. jority states: de statute (2000), of this construction pro- legally as: “To “Enjoin” is defined for “the need specificity given more mands by injunction.” or restrain hibit drafting” in inter legislative in precision halting “Stay” postponement is “[t]he § 1252. provisions various the preting like.” or the judgment, proceeding, aof Anti-Dis Reno American-Arab See plain that the definitions show ... These Comm., 525 U.S. crimination grant the “enjoin” includes meaning (1999). “stay.” logi- does not majority’s conclusion II defini- quoted two from cally follow in- majority’s of the implausibility “stay” Rather, the definition tions. 1252(f) apparent is terpretation of section merely a is that such makes clear majority would observing how a “postponement,” a in nature: to An- convincing” and standard “clear contrast, “enjoin,” the term “halting.” In stay of removal. With motion for defined, permanent: far more dreiu’s is as- majority challenges, the respect “restrain.” to factual “prohibit,” require interprets subsection lesson to be larger lexical is a There and convinc- by “clear an alien show ma- belies the Black’s which learned from removal order evidence that ing the noun jority analysis. “Injunction,” fact”; finding of an erroneous based enjoin,” defined verb “to form the determining. judgment enter ... a “make and pending agency ... of the tion of the order hearing aside, of, interlocutory setting enjoining, validity application on the added); also agency.”). injunction.” (emphasis suspending, the order 2349(a) (court jurisdiction has

H27 however, respect questions law, immigration court’s findings factual are majority departs plain from the lan correct, the majority’s decision requires guage conjures of the statute up the court to determine on the merits standard that “we will not a final whether the eligibility BIA’s determination removal order unless the alien establishes legally on, correct based cases, most a ‘manifestly contrary order was brief motion for stay. simply This does ” significant This is a departure law.’ Rather, make sense.6 the appropriate pre-IIRIRA from the law case standard standard we should apply is the traditional applied preliminary injunction described in test Abbassi employed by (now stays standard to of deportation virtually every circuit under the transition- removal). Abbassi, al rules. at 514. importantly, More the standard majority set forth does nothing but Ill analysis conflate the for determining whether appeal should is sum, In with all due respect, majori- sue and resolving a petitioner’s claims gets it ty wrong. It misinterprets on the merits. 1252(f) language of 8 U.S.C. 1252(b)(4), Section which provides the ignores the structure of section 1252 as a scope standard of review for resolving in holding whole that section merits, of review on the states requires an alien to establish “clear and part: convincing evidence” that a of remov- (B) findings the administrative of fact pending appellate al review is warranted. conclusive unless reasonable ad- so, doing In transforms majority judicator would be compelled to con- “enjoin” word synecdoche, and disre- clude to the contrary, gards “longstanding Court’s (C) a decision that an alien is not eligi- principle of construing any lingering ambi- ble for admission to the United States is guities statutes favor of conclusive unless manifestly contrary to Cardoza-Fonseca, the alien.” INS v. law, and 107 S.Ct. (D) Attorney General’s discretion- (1987). If Congress had intended the ary judgment whether to relief reached majority, would, result 1158(a) under [8 U.S.C.] section course, be the end of the matter. How- shall be manifestly conclusive unless ever, the plain language structure of contrary to the law and an abuse of the statute dictate otherwise. discretion. 1252(b)(4). consequence holding of this The standard is that issuing asylum review for thousands of stay suggested seekers who fled their by the majority duplicates native lands on word—the based well-founded fears of —-word for resolving rule persecution alien’s will be forced to return to that the merits. Assuming that danger they fiction will be By applying cases, 6. convincing "clear and evi- In these Court has re- dence” standard to challenges quired individual showing convincing of "clear and rules, procedural Congress the IIRIRA’s es- congressional evidence” of intent overcome sentially places upon heavy aliens burden presumption favoring the "well-settled inter- showing procedures applied pretations INS judicial of statutes allow re- prohibited as a of law. matter view of (quoting administrative action.” 496, appears 888). have drawn McNary, this standard from 498 U.S. at immigration cases that have addressed Requiring wheth- individual aliens to make a "clear preclude judicial it intended to er convincing” showing review of proce- that INS See, legality e.g., of an INS action. prohibited Reno dures are a matter of law is Servs., Inc., v. Catholic Social therefore consistent with historical back- (1993). drop against L.Ed.2d 38 1252 was enacted. the slow awaiting wheels

safe while grind to halt. justice to

American dissent. respectfully

I America,

UNITED STATES

Plaintiff-Appellee, Defendant-Appellant. EGGE,

John 98-30322.

No. Appeals, Court States

United Circuit.

Ninth July

Argued and Submitted 15, 2000. Sept.

Filed notes omitted). quotation marks and alteration “enjoin” use of and “restrain” has differed Similarly, other Congressional uses of in other acts. Compare “enjoin” and “restrain” do support An- 2349(a) (declaring that appeal courts of See, dreiu’s interpretation. e.g., 28 U.S.C. ], aside, ], may “enjoin suspend[ [ set[ ] (b). 2349(a), The assertion that Con in whole or part, the order of an agency”) gress “enjoin” only used in relation to added), 2349(b) (emphasis id. section permanent orders is contrary to

Case Details

Case Name: Dan Marius Andreiu v. Janet Reno, Attorney General

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 8, 2000

Citation: 223 F.3d 1111

Docket Number: 99-70274

Court Abbreviation: 9th Cir.