Yanick Bonhomme-Ardouin v. U.S. Attorney General, Immigration and Naturalization

291 F.3d 1289

11th Cir.

2002

Check Treatment

Docket

Yanick BONHOMME-ARDOUIN, Petitioner, v. U.S. ATTORNEY GENERAL, Immigration and Naturalization, Respondents.

No. 02-12298.

United States Court of Appeals, Eleventh Circuit.

May 21, 2002.

291 F.3d 1289

or whether he qualified for a no asset discharge. The bankruptcy court must be confident that it has the full and honest disclosure of the debtor concerning any potential assets that could increase the value of the estate for the creditors. See New Hampshire, 532 U.S. at 750-51, 121 S.Ct. at 1815 (explaining that there is not “an exhaustive formula for determining the applicability of judicial estoppel,” and courts should consider the facts of a particular case in its analysis). The Supreme Court explains that:

The federal system of bankruptcy is designed not only to distribute the property of the debtor, not by law exempted, fairly and equally among his creditors, but as a main purpose of the act, intends to aid the unfortunate debtor by giving him a fresh start in life, free from debts, except of a certain character, after the property which he owned at the time of bankruptcy has been administered for the benefit of creditors. Our decisions lay great stress upon this feature of the law—as one not only of private but of great public interest in that it secures to the unfortunate debtor, who surrenders his property for distribution, a new opportunity in life.

Stellwagen v. Clum, 245 U.S. 605, 617, 38 S.Ct. 215, 218-19, 62 L.Ed. 507 (1918).

In this situation, knowledge that the debtor was pursuing a discrimination claim seeking injunctive relief that offered no monetary value to the estate, would not, in all likelihood, have changed the bankruptcy court‘s determination about how to proceed with the debtor‘s bankruptcy. What is clear is that in order to gain the benefits of the bankruptcy laws, the debtor must first surrender his non-exempt property for the benefit of his creditors. The trustee and the creditors are interested in the debtor‘s property that can add anything of value to the estate. We conclude that Billups’ undisclosed claim for injunctive relief offered nothing of value to the estate and was of no consequence to the trustee or the creditors.³ We decide, then, that the important and necessary reasons that bar Billups’ monetary claims do not affect his efforts to change, through injunctive relief, Pemco‘s employment practices. He may pursue his claims for injunctive relief.

IV. Conclusion

For the reasons set forth above, summary judgment in favor of Pemco on Billups’ claims for monetary relief is AFFIRMED. However, summary judgment in favor of Pemco on Billups’ claims for injunctive relief is REVERSED and the case is REMANDED to the district court for further proceedings on those claims consistent with this opinion.

David V. Bernal, Office of Immigration Litigation Station, Washington, DC, Jack Wallace, Miami, FL, for Respondents.

Before CARNES, BARKETT and WILSON, Circuit Judges.

BY THE COURT:

Petitioner‘s emergency motion for stay of deportation pending resolution of petition for review is DENIED.

BARKETT, Circuit Judge, concurring, in which WILSON, Circuit Judge, joins:

I concur in the order denying Bonhomme-Ardouin‘s emergency motion for stay of deportation because I find that she has not shown a likelihood of success on the merits of her appeal, which I believe is the proper standard to apply to this motion. See, e.g., Andreiu v. Ashcroft, 253 F.3d 477, 483 (9th Cir.2001) (en banc) (petitioner seeking temporary stay of deportation pending appeal must demonstrate “(1) a probability of success on the merits and the possibility of irreparable injury, or (2) that serious legal questions are raised and the balance of hardships tips sharply in the petitioner‘s favor“); Sofinet v. INS, 188 F.3d 703, 706 (7th Cir.1999) (to merit a temporary stay of deportation pending appeal, petitioner must demonstrate “(1) a likelihood of success on the merits; (2) that irreparable harm would occur if a stay is not granted; (3) that the potential harm to the movant outweighs the harm to the opposing party if a stay is not granted; and (4) that the granting of the stay would serve the public interest“); Bejjani v. INS, 271 F.3d 670, 687-89 (6th Cir.2001) (same, citing Andreiu and Sofinet).

In a published order denying a motion for temporary stay, a panel of this Court recently interpreted § 1252(f)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to mean that this Court may not grant an alien‘s motion for a temporary stay of removal pending appeal of a final Board of Immigration Appeals’ removal order unless the alien presents clear and convincing evidence that the removal order was prohibited as matter of law. See Weng v. U.S. Attorney General, 287 F.3d 1335 (11th Cir.2002).

In light of Weng, I believe this Court should consider en banc the issue of the appropriate standard of review for such a motion. In my judgment, Weng applied the wrong standard for a motion for temporary stay of deportation pending appeal. Section 1252(f)(2) states:

Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such an order is prohibited as a matter of law.

8 U.S.C. § 1252(f)(2). In a detailed analysis, the Ninth Circuit en banc explains that “as a matter of statutory construction, the term ‘enjoin,’ in this context, is not equivalent to the term ‘stay,‘” Andreiu at 478, and that the proper standard on a motion for temporary stay is thus the traditional: “(1) a probability of success on the merits and the possibility of irreparable injury, or (2) that serious legal questions are raised and the balance of hardships tips sharply in the petitioner‘s favor.” Id. at 483. Andreiu persuasively rejects the result in Weng because it would limit the courts’ ability to issue stays of deportation except when the petitioner has shown by “clear and convincing evidence” that the removal order is “prohibited as a matter of law.” However, the courts of appeal review the legal determinations of the BIA de novo.... In any case raising legal issues, INS‘s interpretation would require a more substantial showing for a stay of deportation than it would for a reversal on the merits. This would effectively require the automatic deportation of large numbers of people with meritorious claims, including every applicant who presented a case of first impression. Id. at 482 (citation omitted). Moreover, Andreiu observes that the Weng standard would essentially duplicate the decision on the merits, requiring the petitioner to show a certainty of success. Such a standard would require full-scale briefing at the beginning of the appellate process, often before the petitioner has even received a copy of the administrative record. In those cases in which a motions panel grants the stay on the basis that the INS‘s order is clearly prohibited as a matter of law, the issue before the merits panel would be the same issue that a motions panel had previously resolved in favor of the petitioner. None of these results are at all sensible as a matter of judicial administration or of the detailed structure the statute establishes for review of BIA decisions. Id.

Much for the same reasons, I believe that Weng applied the wrong standard, and that this matter is suitable for this Court‘s consideration en banc. However, I nonetheless concur in the Court‘s order today because I find that Bonhomme-Ardouin is not entitled to a temporary stay even under the correct standard.

Notes

In reaching this conclusion, we express no opinion about other cases of undisclosed claims for non-monetary relief to which judicial estoppel may or may not apply. The facts of a particular case will always guide a court‘s analysis of this issue.