Weng v. U.S. Attorney General: 11th Circuit Finds Heightened Injunction Standard Applies to Stays of Removal...

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

WENG V. U.S. ATTORNEY GENERAL: 11TH CIRCUIT FINDS HEIGHTENED INJUNCTION STANDARD APPLIES TO STAYS OF REMOVAL PENDING DIRECT JUDICIAL REVIEW
Immigrants' Rights Update, Web Edition, July 15, 2002

A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit has ruled that section 242(f)(2) of the Immigration and Nationality Act requires that a heightened standard be met before the court can issue a stay of removal pending consideration of a petition for review of a removal order. 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 refused to follow the decisions of the Ninth and Sixth Circuits, which have found that section 242(f)(2) does not apply to temporary stays pending judicial review of removal orders. Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en banc); Beijani v. INS, 271 F.3d 670 (6th Cir. 2001). Instead, the court found that section 242(f)(2) applies to stay applications. The court concluded that, under this standard, "only aliens who can show clear-cut errors under established law will receive stays."

Weng v. U.S. Attorney General, 287 F.3d 1335 (11th Cir. 2002).