Nken v. Holder

Federal appellate courts have a long-recognized inherent authority, reinforced by the All Writs Act, to hold an order in abeyance while reviewing its legality. That authority prevents appellate review from becoming meaningless when a challenged order may be executed before the court has enough time to decide the case. But a stay remains an extraordinary, discretionary remedy, not an entitlement.

The text and structure of § 1252 distinguish stays from injunctions. Section 1252(f)(2) limits a court’s power to “enjoin” removal and is titled “Limit on injunctive relief,” while § 1252(b)(3)(B), enacted as part of the same statutory overhaul, expressly uses the word “stay” when addressing the effect of filing a petition for review. Congress’s use of “stay” in one provision and “enjoin” in another strongly indicates that the latter was not meant to govern stays.

An injunction ordinarily directs a person to act or refrain from acting through the court’s coercive power. A stay, by contrast, generally operates on the proceeding or order under review: it temporarily suspends the order’s enforceability. A stay of removal therefore suspends the legal source of the Government’s authority to remove the alien rather than issuing a coercive command to executive officials.

Applying § 1252(f)(2) to stays would undermine the historic function of a stay. The provision would require an alien to establish by clear and convincing evidence that removal is unlawful—effectively requiring an expedited and highly demanding merits determination—before interim relief could issue. It also contains no allowance for irreparable harm, even though avoiding irreparable harm while a court considers the merits is the central purpose of a stay.

Although the Court acknowledged that § 1252(f)(2) may have a role in limiting other forms of individual injunctive relief, uncertainty about its exact scope did not overcome the statute’s textual and structural indications that it does not cover stays. Congress did not clearly displace the traditional appellate authority to grant stays.

A stay is an exercise of judicial discretion guided by established legal principles, and the applicant bears the burden of justifying it. Under the traditional test, the court considers whether the applicant has made a strong showing of likely success on the merits, whether the applicant will suffer irreparable injury without a stay, whether a stay will substantially injure other interested parties, and where the public interest lies.

The first two factors are especially important. A mere possibility of success is not enough, and neither is a mere possibility of irreparable injury. Courts must make an individualized assessment rather than treat any one factor as automatically dispositive.

Removal is serious, but removal alone is not categorically irreparable injury. Before the 1996 immigration amendments, removal could end judicial review, which helped justify automatic stays. Congress eliminated both that rule and the automatic stay. An alien may now pursue a petition for review after removal, and a successful petitioner may receive effective relief through facilitated return and restoration of prior immigration status.

The Government’s and public’s interests must receive real weight. There is an important public interest in preventing wrongful removal, especially where an alien may face grave harm abroad. But there is also always a public interest in promptly executing lawful removal orders, an interest that may be stronger when an alien is dangerous or has used immigration procedures merely to prolong an unlawful stay. Because the Fourth Circuit applied the wrong legal standard under its precedent, the Court vacated and remanded for application of the traditional test.