9th Circuit: High Standard Must Be Met for Court to Stay Removal Order Pending Its Consideration of Petition for Review (Andreiu v. Reno)

IMMIGRATION LAW & POLICY

Judicial Review of Immigration Decisions

9TH CIRCUIT: HIGH STANDARD MUST BE MET FOR COURT TO STAY REMOVAL ORDER PENDING ITS CONSIDERATION OF PETITION FOR REVIEW (ANDREIU V. RENO)
Immigrants' Rights Update, Vol. 14, No. 6, October 19, 2000

A divided panel of the U.S. Court of Appeals for the Ninth Circuit has ruled that individuals must meet a high standard in order to obtain a stay pending the appellate court's consideration of a petition to review a removal order. The opinion finds that individuals seeking a stay must either "show by clear and convincing evidence that the [removal] order was based on an erroneous finding of fact" or "establish that the order was manifestly contrary to law." The ruling interprets section 242(f)(2) of the Immigration and Nationality Act, part of the "permanent rules" enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), to prohibit the court from granting a stay except where this standard is met.

The petitioner in this case, a Mr. Andreiu, is a Rumanian national who filed a petition to review an order of the Board of Immigration Appeals that denied his application for asylum and withholding of removal and ordered his removal. In conjunction with the petition, Andreiu requested a stay. The Immigration and Naturalization Service opposed the motion, contending that section 242(f)(2) applies to stays and imposes a high standard that must be met. A motions panel of the court appointed counsel for Andreiu and ordered briefing and oral argument of the issue.

In support of the motion for a stay, the petitioner argued that section 242(f)(2) does not apply to stays, for several reasons: (1) the provision's limitation on orders that "enjoin" removal refers to injunctions, which are distinct from stays; (2) section 242(f) is a limitation on collateral litigation rather than on direct judicial review of removal orders; (3) the only express reference to a stay in the permanent rules is the same as a provision of the transitional rules, which the court interpreted to establish a balancing test standard; and (4) the standard asserted by the INS is draconian and would prove unworkable, requiring full briefing on the merits at the outset of the case and resulting in the removal of individuals with meritorious cases.

In denying the motion for a stay, the majority of the three-judge panel ruled that the reference to an order to "enjoin" removal in section 242(f)(2) encompasses a stay of removal. The majority concluded that individuals seeking a stay must either "show by clear and convincing evidence that the [removal] order was based on an erroneous finding of fact" or "establish that the order was manifestly contrary to law."

Judge Thomas dissented, arguing that the majority's decision is contrary to the plain language of section 242(f), the structure of section 242 as a whole, and asylum theory. The petitioner is represented by NILC on the stay motion and has filed a motion for reconsideration and suggestion for rehearing en banc.

For the present, the Ninth Circuit continues to issue a temporary stay at the time a motion for a stay of removal is filed, to allow the court to adjudicate the motion in an orderly fashion, under DeLeon v. INS, 115 F.3d 643 (9th Cir. 1997). However, in another case pending before the court, the INS contends that DeLeon orders should not be issued in cases brought under the IIRIRA permanent rules. Yetis v. Reno, No. 99-71015 (9th Cir.).

Andreiu v. Reno, 223 F.3d 1111 (9th Cir. 2000).