Mohammed v. Reno: 2d Circuit Finds Stay of Removal Pending Review of Habeas Appeal...

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

MOHAMMED V. RENO: 2D CIRCUIT FINDS STAY OF REMOVAL PENDING REVIEW OF HABEAS APPEAL NOT SUBJECT TO HEIGHTENED STANDARD, BUT AEDPA RESTRICTIONS ON 212(C) RELIEF APPLY TO POST-AEDPA CONVICTION BASED ON PRE-AEDPA CONDUCT
Immigrants' Rights Update, Vol. 16, No. 7, November 22, 2002

The U.S. Court of Appeals for the Second Circuit has ruled that section 242(f)(2) of the Immigration and Nationality Act, which prohibits courts from enjoining the removal of non-U.S. citizens unless they meet an extremely high standard, does not apply to temporary stays pending the appeal of a habeas case. However, in this case the court denied a stay, finding the petitioner unlikely to win on the merits. The decision finds that under the court's prior decision in Domond v INS, 244 F.3d 81 (2d Cir. 2001), the restrictions on eligibility for 212(c) waivers enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to individuals who committed disqualifying offenses before the AEDPA's enactment date but who were convicted after that date. In so finding, the court concluded that the Supreme Court's subsequent ruling in INS v. St. Cyr, 533 U.S. 289 (2001), did not affect the rationale for the decision in Domond.

The petitioner in this case, a Mr. Mohammed, is a national of Trinidad who was admitted to the United States as a lawful permanent resident in 1990. He criminally possessed stolen property in Mar. 1996 and was found guilty of the offense by a New York state court in Sept. 1997. For the conviction, he was sentenced to a term of two to four years. He was subsequently placed in removal proceedings. An immigration judge found him removable for having committed an aggravated felony and ineligible for 212(c) relief because of the restrictions of the AEDPA. On appeal, the Board of Immigration Appeals upheld the IJ's decision.

Mohammed then filed a petition for writ of habeas corpus to challenge the removal order, claiming that he should have been allowed to apply for 212(c) relief. He argued that the AEDPA's restrictions on 212(c) eligibility should not apply to him because his criminal conduct took place before the enactment of the statute. In May 2002, the district court denied the habeas petition, issuing a published opinion. Mohammed v. Reno, 205 F.Supp.2d 39 (E.D.N.Y. 2002). In the opinion, the district court judge contended that in light of the Supreme Court's analysis in St. Cyr, the Second Circuit's ruling in Domond was wrongly decided. However, the district court concluded that it was bound to follow Domond. The court kept the stay of removal that it had issued in effect, "unless it is lifted by the court of appeals." The Immigration and Naturalization Service then filed a motion to lift the stay with the Second Circuit.

In the motion to lift the stay, the government argued that INA section 242(f)(2) restricts the power of the court to stay the petitioner's removal pending consideration of the appeal. 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." In rejecting this argument, the court agreed with the reasoning of the Ninth and Sixth Circuits, which have found that section 242(f)(2) does not apply to temporary stays pending review of the appeal of a removal order. Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en banc) (stay pending adjudication of petition for review); Maharaj v. Ashcroft, 295 F.3d 963 (9th Cir. 2002) (stay pending review of habeas appeal); Beijani v. INS, 271 F.3d 670 (6th Cir. 2001) (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; "9th Circuit Rules That Heightened Injunction Standard Not Applicable to Stay Pending Court's Review of Habeas Denial," Immigrants' Rights Update, July 29, 2002, p.11).

Finding section 242(f)(2) not applicable to the stay, the court then looked to the traditional standard to determine whether the stay should remain in effect. The court noted that four factors are relevant to this determination: "the likelihood of success on the merits, irreparable injury if a stay is denied, substantial injury to the party opposing a stay if one is issued, and the public interest." The court concluded that the degree of likelihood of success that must be shown depends upon the other factors. In the context of determining whether to stay a removal order pending a habeas appeal, the court noted that "the gravity of injury to the alien if a stay is denied, compared to the lesser 'injury' to the Government if one alien is permitted to remain while an appeal is decided, suggests that the degree of likelihood of success on appeal need not be set too high."

However, the court concluded that Mohammed had no possibility of prevailing on appeal. The court decided that the reasoning of the decision in Domond remains valid and is not undermined by the Supreme Court's opinion in St. Cyr. Therefore, the court granted the motion to lift the stay.

Mohammed v. Reno, No. 02-2443 (2d Cir. Oct. 24, 2002).