ANDREIU V. ASHCROFT: 9TH CIRCUIT HOLDS THAT IIRIRA DID NOT MODIFY THE STANDARD FOR A STAY OF REMOVAL
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

The U.S. Court of Appeals for the Ninth Circuit has issued an en banc decision finding that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) did not create a new, high standard for the court to use to determine whether to grant a stay of removal while a petition for review is pending. The decision overturns a prior ruling of a three-judge panel of the court, which had concluded that section 242(f)(2) of the Immigration and Nationality Act, part of the "permanent rules" of the IIRIRA, required individuals seeking a stay to 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" (see "9th Circuit: High Standard Must Be Met for Court to Stay Removal Order Pending Its Consideration of Petition for Review," Immigrants' Rights Update, Oct. 19, 2000, p. 9). The en banc decision holds that section 242(f)(2) does not apply to stays of removal and that applications for stays are governed by the same balancing test that the court has traditionally used in cases where a stay is not automatic. In this case, applying the balancing test to the case before it, the court found that the petitioner failed to meet this standard and denied his motion for a stay.

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 from the United States. In conjunction with the petition, Andreiu requested a stay. The Immigration and Naturalization Service opposed the motion, contending that section 242(f)(2), which restricts the power of courts to "enjoin the removal of any alien pursuant to a final order," 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.

A majority of the three-judge panel concluded 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 then filed a motion for reconsideration and suggestion for rehearing en banc, which the Ninth Circuit granted.

In its en banc ruling, the Ninth Circuit concluded as a matter of statutory interpretation that the term "enjoin" as used in section 242(f)(2) does not encompass a "stay." The court noted that Congress expressly referenced stays in section 242(b)(3)(B) (providing that a stay is not automatic upon the filing of a petition for review) and could easily have added either the term "stay" or "restrain" to section 242(f)(2) had it intended the provision to encompass stays. The court pointed to several other features of the text and structure of section 242 as a whole that lend support to the conclusion that section 242(f)(2) does not apply to stays. And the court also noted that the high standard sought by the INS would lead to absurd results, as it "would effectively require the automatic deportation of large numbers of people with meritorious claims, including every applicant who presented a case of first impression." Because applicants for a stay would have to show "a certainty of success," this standard also would require full-scale briefing at the very beginning of the appellate process, contrary to the detailed procedure that the statute establishes for review of BIA decisions. For all of these reasons, the court concluded that section 242(f)(2) does not impose a new standard for a stay.

Instead, the court found that the balancing test that the court explained in Abbassi v. INS, 143 F.3d 513 (9th Cir. 1998) (a deportation case subject to the IIRIRA "transitional rules" which provide that a stay is not automatic), applies to stay requests in removal cases. Under this standard, in order to obtain a stay the petitioner must show "either (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 514 (enumeration added). In this case, the court concluded that Andreiu failed to meet either test.

Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en banc).