Maharaj v. Ashcroft: 9th Circuit Rules That Heightened Injunction Standard Not Applicable to Stay...

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

MAHARAJ V. ASHCROFT: 9TH CIRCUIT RULES THAT HEIGHTENED INJUNCTION STANDARD NOT APPLICABLE TO STAY PENDING COURT'S REVIEW OF HABEAS DENIAL
Immigrants' Rights Update, Web Edition, July 15, 2002

The U.S. Court of Appeals for the Ninth Circuit has ruled that section 242(f)(2) of the Immigration and Nationality Act, which prohibits courts from enjoining the removal of noncitizens unless they meet an extremely high standard, does not apply to the court's ability to issue a stay of removal pending its review of the appeal of a denial of a habeas corpus petition. Section 242(f)(2) restricts the power of courts to "enjoin the removal of any alien pursuant to a final order . . . unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law." The court found that the issue of whether section 242(f)(2) applies to a request for a stay of removal is governed by its prior decision in Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en banc). In Andreiu, the court found that section 242(f)(2) does not apply to the court's determination whether to issue a stay of removal pending the review of a removal order pursuant to a petition for review, distinguishing a "stay" from an "injunction" for this purpose (for more concerning the decision in Andreiu, see "9th Circuit Holds That IIRIRA Did Not Modify the Standard for a Stay of Removal," Immigrants' Rights Update, Aug. 31, 2001, p.11).

Maharaj v. Ashcroft, No. 01-15703 (9th Cir. Jul. 2, 2002).