Teshome-Gebreegziabher v. Mukasey

(1996) Gelernt, DC, ington, Lee P. American Civil 2066, 135 (per L.Ed.2d Union, York, NY, Peti- curiam) (“[Fjederal Liberties New for give courts tioner. questions or abstract upon moot opinions (internal marks quotation

propositions.” Bernal, David V. Brianne Whelan Co- omitted)). hen, Attorney, Trial Thomas Henderson the dis assuming even simply, Put Jr., Dupree, Federighi, Carol Senior Liti- jurisdiction to revoke lacked trict court Counsel, Markle, N. gation Robert U. S. release, Hardy’s given supervised Hardy’s Justice, DC, Department Washington, wrong to there is no prison, release from Nickum, Attorney, Trial Stuart S. U.S. ... dis appeal “an should be remedy and Department Immigra- of Justice Office of when, ... virtue of an interven missed DC, Raphael Litigation, Washington, tion event, appeals grant cannot a court of ing Choi, Counsel, Department of Home- Chief in favor of ‘any relief whatever’ effectual Counsel, Security land of the Chief Office Calderon, 150, appellant.” VA, Arlington, George Maugans, William Green, 159 (quoting Mills v. 116 S.Ct. 2066 III, and Naturalization Immigration Ser- 40 L.Ed. 293 vice, Baltimore, MD, Respondent. for (1895)). Hardy has failed to iden- Because consequences stemming tify any collаteral ORDER re- supervised revocation of his

from the lease, interest” “requisite personal petition rehearing for Petitioner filed Arizonans litigation evaporated. Respondent filed rehearing en banc. at 68 n. English, 520 U.S. Official for response. 117 S.Ct. 1055. deny panel voted to rehear- III. ing. reasons, foregoing Accordingly, for the requested poll A member Court Har- motion to dismiss the Government’s petition rehearing on the for of the Court granted. as moot is dy’s appeal Williams, Judge Judge Chief en banc. DISMISSED Wilkinson, Niemeyer, Judge Trаx- Judge Duncan,

ler, Shedd, Judge Judge deny petition voted to Judge Agee Michael, Judge en banc. rehearing Motz, Judge Gregory vot- Judge King, and Eskedar TESHOME- rehearing en grant petition ed GEBREEGZIABHER, Petitioner, banc. re- The Court denies Attorney MUKASEY, Michael B. rehearing en banc. hearing and General, Respondent.

No. 08-1060. opinion concur- wrote Judge Shedd banc, in rehearing en ring in the denial of Appeals, United States joins. Judge Williams which Chief Fourth Circuit. dissenting from Michael wrote Oct. banc, in which rehearing en the denial Motz, Judge Greg- Judge King, and Dzubow, Attorney, Alexander Jason Dzubow, PLLC, ory join. Mensah, Wash- Butler & 1252(f)(2)’s

SHEDD, in Judge, concurring squarely Circuit falls within limita- rehearing the denial of en banc: power enjoin tion of the courts’ to removal of provides: aliens. That section plain Relying on the of 8 “Notwithstanding any other 1252(f)(2), by supported U.S.C. and law, no court shall the removal of clear congressional purpose underlying the any pursuant to a final order Illegal under Immigration Reform and Immi (“IIRIRA”),1 Act this section grant Responsibility by and unless the alien shows clear recognition with full of the importance convincing and entry evidence that the issue, panel this case unanimous execution ‍​​‌‌​​​‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌‍of such prohibited order is as a ly concluded—after oral argument and Judge primarily matter of law.” Michael careful deliberation—’that an alien who has by takes issue with arguing this conclusion been ordered removed from the United panel’s that the interpretation “finds little by States must show clear and convincing support history in either usage.” Post entry evidence that or execution of the order of removal is aas matter Judge position by Michael’s is refuted (ie., “stay” of law in order to stop) the the authorities cited in removal. Teshome-Gebreegziabher See v. synonymous that show the often nature of (4th Cir.2008).

Mukasey, 528 F.3d 330 injunctions. See Teshome-Ge decision, reaching panel rejected this breegziabher, 528 Perhaps F.3d argument Teshome’s that our traditional most notable among those authorities is preliminary circuit test for injunctive re (28 Anti-Injunction Act U.S.C. lief must be used. As the author of the 2283), in which Congress mandated that panel opinion, I beliеve that it is correct except in therein, for the certain circumstances “[a] reasons stated and I court there join fore of the grant the Court’s United States deny decision to injunction for rehearing en banc. Al to a State though added). I recognize that the panel opinion (emphasis court-” Judge Mi speaks itself for the any Court and elabo position chael’s is further refuted prece ration stage add at joined. dent this circuit in which he not, proceedings does I now write to Foster, re Gilliam v. 61 F.3d sрond Michael’s Cir.1995) (en dissent banc) (issuing “stay” ing from the denial of rehearing en banc. “enjoin” a state criminal proceeding). I do so because he has raised several Moreover, worth, for what it is I note that arguments that were considered even some of the circuits that have inter panel but necessary were not then preted § in the manner given extended discussion panel’s una Michael expressly eq advocates have since nimity. See, uated injunctions. e.g., Ki Haines, jowska

Underlying decision is its 463 F.3d con- Cir.2006) rеquest clusion that a “stay” (noting for a that a of re- “is form of is, essence, moval request injunction”); United States v. Orr Water and, therefore, Co., tive relief such a request Ditch Cir. Gonzales, recently Serv., 1. We Appiah noted in William v. Immigr. v. U.S. & Naturaliz. (4th Cir.2007), 332 n. 3 (4th Cir.2000) (noting that in "one of expedite IIRIRA’s aims is to the re- enacting expedite IIRIRA "aimed to moval country of aliens from the per- while deportable the removal of aliens and to limit mitting them to continue to seek review of relief”), discretionary their removal orders from abroad.” Sеe also removal, 2004) appellate stop was the court to that “the order (noting in- preliminary equivalent request request courts treated such a as a functional Thus, contrary Mi- junction”). preliminary gen relief. See of sup- there is a wealth position, chael’s General, erally Weng Attorney v. U.S. the terms panel’s equating port for (11th Cir.2002). That 1336-38 “injunction.” “stay” and injunctive preliminary standard for relief applied by continues to be the courts that every stay is also say not to that This is 1252(f)(2) is, is, reject § That example, a stаndard. injunction. an There stay by “stay” which a court holds that that a not type narrow those courts hold is abeyance. In that “injunction” employ its own their an nonetheless situation, “stay,” a the court issue preliminary injunctive relief However, “enjoin” not itself.2 does deciding stop whether to an alien’s re case, alien is of this the circumstances so, By doing signal moval. those courts pro stop to its own asking Court they facing agency- that understand aliens instead, asking is the alien ceedings; injunctive seeking removal are re ordered (ie., a liti stop to the Government Court they stay. when ask for a No one can lief removing from proceedings) in the gant seriously suggest facing that an alien re respect, In that country. him from “stay” moval who asks for a would be neatly within the request alien’s fits similarly differently treated than another in Dictionary definition of Black’s Law “injunction” situated alien who seeks an is, that by Judge Michael: junction cited course, his removal. Of the courts prevent person- judicial process operating “[a] seeking them both as the iden would treat am, to whom it is requiring person from stopping tical the Government relief — doing partic to ... refrain from directed removing them.3 thing.” post ular at 291. argues that Judge Michael also why “stay” To better understand sup- §of language” “structure and injunction, important an it is this context is Congress did not port the conclusion removal pre-IIRIRA how to understand apply § in this context. intend IIRIRA, an were handled. Before orders fact that disagree. Post facing typically removal received 1252(b)(3)(B) “stay,” uses the term while оrder when automatic of the removal not, support adds no on the merits sought appellate he review 1252(b)(3)(B) argument. Section uses However, when there was no of his case. “stay” merely to reflect the ter- the word stay, and the alien asked the automatic reason, 1292(a)(1) provide ap- "continue to reliance on 2. Michael’s For Mayacamas Aerospace CoRp. v. jurisdiction ... have pellate over orders Gulfstream Corp., granting denying in- practical effect of There, (1988), misplаced. junctions ....” 485 U.S. stays and in considered the nature of added). (emphasis interlocutory ap junctions in the context deny peals and held that "orders types Certainly, seek both an alien could ‘equitable’ 'legal' proceedings ing is, case; could ask same he in the relief automatically appealable” grounds are not stop from re- the court to the Government 1292(a)(1). U.S. at 28 U.S.C. under him, moving time ask the and at the same is clear that the Court 108 S.Ct. 1133. It abeyance own hold in court to addressing class of in —its was narrow —or request proceedings. first review His merit volving hold its own a court’s decision to relief; Indeed, stay. injunctive is for abeyance. the Court his second proceedings in notwithstanding ruling, its noted pre- minology given pie, complains applica to this Michael Weng, 287 F.3d at 1339-40 IIRIRA. See tion of the standard will lead 1252(b)(3)(B) (“The ‘stay’ §in n. word being to a decision made without a full terminology used in the simply echoes the record and will cause aliens administrative concerning statute automatic pre-IIRIRA pend to be removed while their сases are ”). ... stays which this section overturns ing even if their for review ulti the same functional This is relief— mately post would be successful. See post- tive relief—the removable alien seeks course, stay, 293. Of absent automatic relief, IIRIRA, and for such the statute eliminated, expressly found in offers one standard —that 1252(b)(3)(B), see 8 U.S.C. those con 1252(f)(2). § present any cerns will be under standard Reno v. American-Arab Anti-Discrimi (unless faithfully applied pre that is one Committee, 471, nation 119 S.Ct. requests sumes that all under the (1999), not aid injunctive traditional reliеf standard will In Judge argument. rejecting Michael’s granted).5 be 1252(f) holding § that the Ninth Circuit’s argues Michael also the operates grant jurisdiction, the as 1252(f)(2), stringent met, if standard of prop Reno Court noted the unremarkable superfluous would make a normal merit nothing osition the section “is more or review the post court. See at 293. injunctive less than a limit on relief [that] However, incorrect, simply this is as a prohibits federal courts from recent case this circuit illustrates. In injunctive against op classwide relief the Keisler, 1221-1231, §§ Fernаndez v. 502 F.3d 337 specifies eration of Cir.2007), I this ban does not extend to individual voted to removal under 1252(f)(2) cases.” 525 S.Ct. 936. ap the standard because it Nothing in that statement is at all ‍​​‌‌​​​‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌‍incon peared that petitioner’s the removal was panel applies sistent with the decision prohibited by opinion our United States 1252(f)(2) in the context of this case— Morin, Cir.1996). 80 F.3d 124 is, injunc seeking individual alien granted. of removal was thereafter tive relief.4 However, briefing argu after and oral ment, agreed with Chief Williams argu- Michael also makes severаl that Morin did not control ments, the outcome of in opinions reflected from other case, circuits, joined the and I panel therefore really arguments which are not but, opinion denying in- relief. See Fernandez v. standard Keisler, stead, Cir.2007), arguments against any are 502 F.3d cert. stay. other than an automatic For exam- Mukasey, denied sub nom. Fernandez v. reject § 4. Those courts that as an individual seeks relief from an order of proper purpose standard must find some removal, precisely which is the issue befоre language, they by reading this do so us. in a manner that is limited to injunctive involving constitutional viola- noted, recently 5. As the Ninth Circuit However, legal tions and errors. such a read- frequent opposition Government's lack of ing simply ignores plain language inevitably, motions to removal and im 1252(f)(2) very statute. Section clear: “No properly, leads to a de facto automatic court shall ... unless the [removal] "summarily because courts in that instance entry or execution of such order is added). fail to consider thе Rivera v. Mu motions." (emphasis as a matter of law.” This (9th Cir.2007). clearly kasey, addresses the standard when — and the U.S.-, 65, 172 L.Ed.2d 62 525 U.S. Attorney General maintains discretion (2008). country an alien to remain to allow argues that the Finally, Judge Michael judi- all until he has exhausted avenues will lead to “non-uniform panel review, Teshome-Gebreegziabher, cial see laws.” See immigration application of frequently at 334 n. which he In of the fact that there light at 290. post favor, Opposi- exercises the alien’s see already non- split, there is exists a circuit Rehearing Rehearing tion to Pet. any law. In of this application uniform Banc, However, regardless En event, way to achieve unifor- only sure Attorney how the General exercises for the circuit courts to mity in this area is discretion, clearly limited the 1252(f)(2), stan- which is apply discretion, courts’ and we are bound to by Congress, rather than mandated dard that directive. follow relief, tests for their individual in the For the reasons set forth to circuit. vary can from circuit I concur opinion, foregoing, as well as the deny in the Court’s decision to I note that closing, “ rehearing en banc. power ‘long recognized Court has aliens a fundamental [is] or exclude expel joins this Chief WILLIAMS by exercised the Gov- sovereign attribute concurring opinion. im- departments largely political ernment’s ” MICHAEL, Judge, dissenting Circuit Fiallo v. judicial control.’ mune from rehearing en banc: from the denial of 1473, Bell, 787, 792, 97 52 430 U.S. S.Ct. (1977) Shaughnessy v. (quoting 50 L.Ed.2d from the court’s respectfully dissent 625, Mezei, 206, 210, 97 73 S.Ct. 345 U.S. en bane. The refusal to rehear this case (1953)). Moreover, “in the exer- L.Ed. 956 an incorrect standаrd panel opinion adopts immigration power over cise of its broad of remov- granting of order naturalization, ‘Congress regularly and peti- an alien’s pending al consideration of unacceptable if rules that would be makes misapplies 8 tion for review. The ” Fiallo, to citizens.’ 430 U.S. applied 1252(f)(2), provides U.S.C. 792, Mathews v. (quoting S.Ct. 1473 97 heightened standard 67, 1883, Diaz, 48 96 S.Ct. 426 U.S. immigration tions (1976)). Although L.Ed.2d 478 laws, stays panel’s of removal. The one, high it is standard is soundly rejected by has been approach insurmountable, and even in those v. eight othеr circuits. See Tesfamichael (5th Cir.2005); meet the Gonzales, in which the alien cannot cases 411 169 F.3d (7th standard, Gonzales, will not the denial of the Cir. v. 400 F.3d 482 Hot “unjust necessarily purported 2005); Ashcroft, lead to the F.3d 230 Douglas v. 374 (3d Cir.2004); Ashcroft, Michael alludes. 375 F.3d results” to which Lim v. asylum Cir.2004); Ashcroft, v. By the time an Arevalo post 1011 (1st Cir.2003); v. the circuit 1 Mohammed case comes before F.3d withholding (2d Cir.2002); Reno, Bejjani review of F.3d 95 appeals in the context of court of (6th Cir.2001); INS, An- order, for relief v. 271 F.3d 670 application a removal Cir. Ashcroft, v. multiple dreiu typically been considered banc). 2001) (en Furthermore, Weng v. U.S. But see adjudication. levels Cir.2002). Gen., F.3d 1335 Att’y Ex- “protecting IIRIRA “theme” of Reno, the lan- courts,” conflicts with panel opinion The from the ecutive’s discretion Notwithstanding any § 1252 and will other and structure of guage opin- law, Because the peculiar create results. no court shall the removal application of by ion will lead to nonuniform ... unless the alien shows unjust and to immigration laws results convincing evidence that clear circuit, exceptional is of in our this issue entry or exeсution of or- [the removal] reconsideration importance and warranted der is as a matter of law. 35; R.App. full court. Fed. P. see our The reaches its conclusion 1301, 1305, Kenyeres Ashcroft, v. “enjoin” interpreting the term in subsec- (2003) (f)(2) encompass stays. tion Teshome- chambers). J., in (Kennedy, Gebreegziabher Mukasey, v. petitioned Before 1996 most aliens who (4th Cir.2008). According opin- to the removal were for review of an order of ion, interpretation is based on “the entitled to an automatic of removal plаin meaning of the text.” Id. Tesfamichael, 411 pending review. See panel opinion’s interpretation The finds 1105a(a)(3) (citing at 171 U.S.C. history support usage. little either 1996)). However, in 1996 (repealed expressly refused to Illegal Immigration enacted the equate injunctions in Gulfstream Immigrant Responsibility Reform and Act Corp. Mayacamas Aerospace Corp., 485 (IIRIRA), which eliminated automatic 99 L.Ed.2d 296 “[sjervice provision stating in a (1988), which held that the two remedies on the officer or [for review] purposes are different for thе of an inter- employee does not the removal of an locutory appeal. Id. at pending alien on court’s decision 1133; Andreiu, see also 253 F.3d at 483. petition, unless the court orders other- Similarly, Appellate the Federal Rules of 1252(b)(3)(B). wise.” 8 U.S.C. This distinguish Procedure between and not, however, provide injunctions, especially the context of stay may which a be ordered. reviewing agency decisions. See Fed. erroneously on relies 8,18; P. R.App. Tesfamichael, see also 411 provide 8 U.S.C. the stan- F.3d 1252(f) stay. dard fоr a Section Nonetheless, relies provides: phrase a in the sixth edition Black’s Law (f) Limit on (current 1252(f)’s Dictionary enact- (1) In general ment) to assert that a a“is ‘kind of Regardless of the nature the action of injunction’ judicial at a directed case or identity party or claim or of the of the Teshome, proceedings within it.” action, parties ‍​​‌‌​​​‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌‍bringing or no (quoting Dictionary at 333 Black’s Law (other Court) court than the Supreme (6th ed.1990)). That edition of jurisdiction authority shall have or “stay” Black’s defined as: enjoin or operation restrain the of the A stopping; arresting the act of a provisions part of subchap- IV of this judicial proceeding by the order of a respect ter ... other than with to the holds, restrains, court. Also which application provisions such supports. or individual pro- whom ceedings part under such have been suspension A is a of the case or initiated. designated proceedings some within it. (2) injunction Particular cases It is a kind of with which a pending resolution of her for re- partic- at a freezes its court Teshome, point. ular view.” 528 F.3d at 331. Her motion thus demonstrates that “a is a (6th Dictionary Law Black’s judicial intrinsic to mechanism review.” ed.1990); Dictionary Law see also Black’s ed.2004) Tesfamichael, 411 operative 173-74. She (retaining “stay,” definition of portion simply suspend asked us to passing reference to dropping of her removal order while we considered tions). contrast, “injunction” was de- petition. agreed her If we had to the as court “[a] fined in the sixth edition petitioner’s request, simple stay a doing someоne from prohibiting order job. have done the It would not have been commanding act or some- specified some necessary for us to or restrain the wrong injury.” one to undo some (the Attorney General of the United States ed.1990). Dictionary Law Black’s individually. turn respondent) named To types then listed ten This definition injunction into an in these circum- “stay” conspicuously miss- injunctions; overkill, it depreciates stances is and Id.; Black’s ing from this list. see also simple stay, traditional force of a (8th ed.2004) (listing Dictionary 800 Law respect assumes automatic for our orders types injunctions without seventeen without the need for formal restraint or stays). Black’s further refutes mentioning prohibition parties. of individual position by explaining panel opinion’s The structure and injunction judicial process that an “[a] personam, requiring confirm that meant to distin- operating it person to whom is directed to do guish “stay” between the terms and “in- doing particular thing.” from refrain junction” when it enacted IIRIRA. For (6th ed.1990); Dictionary Black’s Law instance, Congress “stay” the term used Diсtionary Law see also Black’s stays pend- when it eliminated automatic 2004) (“In sense, general every order ed. 1252(b)(3)(B). provi- §in This ing appeal which commands or forbids is an of a court “enjoin,” sion does not use the word sense, injunction; accepted legal but in its 1252(f)(2). § does not refer to Section injunction judicial process an is a or man- 1252(f), hand, on the other refers to ...(inter- operating personam date stays. Fur- injunctions with no mention of omitted)). quotation nal marks Black’s 1252(f) (which thermore, § heading the of injunctions specifi- that explains thus are bill) Congress part crafted as of the de- stays are cally parties, directed at while as a “[l]imit scribes the section courts; directed at neither tive relief.” As the Court has by term is subsumed the other. See Tes- terms, “By plain its and even explained, (“While at an famichael, 411 F.3d 173-74 1252(f) title, nothing is more or less [§ ] its injunction through is relief obtained inde- injunctive than a limit on relief.” Reno v. pendent litigation partic- and directed at a Am.-Arab Anti-Discrimination Comm. tribunal, party, ular not a is a 471, 481-82, (AAADC), review”); judicial intrinsic to mechаnism (1999); 142 see also An- Andreiu, 253 F.3d at 482-83. dreiu, 253 F.3d at 481. difference The basic between carefully Congress chose its words when injunction petition- is confirmed IIRIRA, clearly and it differenti- drafted to the request According er’s this case. injunctions in stays and ated between petitioner “filed a mo- panel opinion, course, must, interpret of tion to her removal statute. We [with court] 292 (f)(2) tions, by Congress according high to their and subsection sets a

terms used specific meaning. injunctive As the Seventh Circuit at retail.” standard for relief noted, “treating Hor, a rule addressed to 400 F.3d at 483. ‘stays’ ‘injunctions’ covering imp- as 1252(f) § legislative history The of fur- legisla- overish the and make supports ther this view. Without mention- tive task more difficult” because “[o]ur ing stays, Report explains the House vocabulary contains distinct words legal 1252(f)’s § purpose injunctive of limit on Hot, judicial for distinctive actions.” 400 relief: Indeed, panel opinion’s F.3d at 484. [Cjourts injunctive may per- issue relief interpretation renders all of alien, 1252(b)(3)(B) taining to the case of individual superfluous, contradicting “[sjtatutes protect against any аnd thus immediate principle the established However, rights. single violation of dis- interpreted give must be ... to each word trict operative appeal some effect.” See Walters v. courts or courts of do not Enters., 202, 209, Metro. Educ. 519 authority enjoin procedures U.S. have es- (1997); 117 L.Ed.2d S.Ct. by Congress tablished to reform the Browner, Virginia v. process removing illegal aliens from Cir.1996). §If that a means the U.S. court not issue unless the alien 104-469(1), (1996); H.R. Rep. at 161 see “prohibited shows that removal as a Andreiu, 253 F.3d at n. 1. legisla- The law,” it entirely matter of would hаve been history tive confirms that clear con- “[t]he pointless to state 1252(f) limiting power cern of [§ ] 1252(b)(3)(B) stays are not automat- courts to immi- Tesfamichael, ic. 175-76. laws, gration stays not with removal panel opinion position The takes the Andreiu, asylum individual cases.” apply stays must be- F.3d at 481. cause the has no other sensible posits further purpose. This is not the case. As the Su- apply failure to 1252(f) preme explained, Court has express “runs afoul of policy” “prohibits federal courts from IIRIRA, “which vested much discretiоn op- classwide Teshome, in the Executive.” 528 F.3d at 1221-1231, §§ eration of specifies However, enacting

this ban extend to individual 1252(b)(3)(B), Congress clearly eliminat- AAADC, cases.” pending ed automatic for aliens with 1252(f)(2) Specifically, pro- S.Ct. 936. petitions alone, change review. This adjudicating vides the standard for indi- grants the executive discretion to vidual challenges seek to the previously remove an alien where none operation of immigration the laws on the existed, policies is consistent with the grounds legal of constitutional or other Taking IIRIRA. deficiencies; step additional explains that the alien will 1252(f)(2) applying standard to succeed on such a claim if he can necessary carry is not out “by congressional convincing demonstrate clear and evi- Arevalo, Indeed, intent. at dence” that the in See 9. statute Supreme rejected his “is a AAADC the Court case as matter of law.” 1252(f)(2). purpose logically interpretation This 1252 that would broad- fits AAADC, ly judicial power. within the structure of the statute: restrict “Sub- (f)(1) Instead, section forbids class ac- U.S. at 119 S.Ct. 936. narrowly Court construed the statute’s аccess to the courts especially troubling (emphasizing terms. Id. “the need for cases where the alien ‍​​‌‌​​​‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌‍would succeed precision legislative drafting”). on The the merits. Kenyeres, 538 U.S. at panel opinion is with the course, inconsistent Su- 123 S.Ct. 1386. Of any dis- preme approach Court’s careful comfort with this result carry would little Arevalo, weight AAADC. See 344 F.3d at 8 in the face of clear a directive from (“[R]eading [§ a more cir- Congress. ] But there is no such directive cumspect path manner follows demar- here. ], cated in [AAADC Cоurt noted, As Justice has Kennedy the stan-

in which the indicated dard governing stays of impor- removal “is 1252(f)(2) should construed [§ ] be narrow- tant” and warrants careful consideration. Andreiu, ly. ...”); 481-82. Kenyeres, 538 U.S. at 123 S.Ct. 1386. Finally, applying the stan- circuits, Eight in carefully opin- reasoned dard to leads to results are at ions, have held that 8 U.S.C. peculiar quite and at troubling.

best worst does not apply to stays pending appeal of panel opinion imposes a The more strin- removal orders. adopts gent standard on an seeking a rule, contrary a joining only one other required than for the alien to succeed circuit, without refuting many of the com- Tesfamichael, the merits. See 411 F.3d pelling counter-arguments presented by requires at 175. It thus litigate alien to reasons, the other circuits. these For merits at stage, often motion be- for the reasons outlined cir- other (or court) he fore even access to cuits, I respectfully from dissent the denial Andreiu, the administrative record. See of rehearing en banc. the rare case where a grantеd, MOTZ, KING, standard renders hearing superfluous,

merits join because the GREGORY this dissent. “essentially duplicate decision will Furthermore, decision on the merits.” Id.

an alien could be removed under the stan-

dard for even if challenge

be successful on the merits. Section

1252(f)(2)’s requirement that the removal clearly

be “prohibited by law” also means America, UNITED STATES of that an alien a meritorious is- presenting Plaintiff-Appellee, impression sue of first challenging substantial evidence can determination granted stay, never be a result Danny HOPE, Defendant-Appellant. 1252(b)(3)(B)]’s counter to “run[s] [§ al- No. 07-60769. stays by lowance such court order.” Tesfamichael, Hor, 411 F.3d at 173 (citing United Appeals, States 483). Fifth Circuit. may litigate While after remov- Oct. ‍​​‌‌​​​‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌‍al, right if the meaningless alien is to a country removed where he will be

tortured, jailed, or otherwise harmed. See

Hor, Barring 400 F.3d at 485. meaningful

Case Details

Case Name: Teshome-Gebreegziabher v. Mukasey

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 30, 2008

Citation: 545 F.3d 285

Docket Number: 08-1060

Court Abbreviation: 4th Cir.