Nken v. Holder, 556 U.S. 418 (2009)
OCTOBER TERM, 2008
NKEN V. HOLDER
SUPREME COURT OF THE UNITED STATES
NKEN v. HOLDER, ATTORNEY GENERAL
certiorari to the united states court of appeals for the fourth circuit
No. 08–681. Argued January 21, 2009—Decided April 22, 2009
Petitioner Nken sought an order from the Fourth Circuit staying his removal to Cameroon while his petition for review of a Board of Immigration Appeals order denying his motion to reopen removal proceedings was pending. Nken acknowledged that Circuit precedent required an alien seeking such a stay to satisfy 8 U. S. C. §1252(f)(2), which sharply restricts the availability of injunctions blocking the removal of an alien from this country, but argued that a court’s authority to stay a removal order should instead be controlled by the traditional criteria governing stays. The Court of Appeals denied the stay motion without comment.
Held: Traditional stay factors, not the demanding §1252(f)(2) standard, govern a court of appeals’ authority to stay an alien’s removal pending judicial review. Pp. 3–17.
(a) This question stems from changes made in the Illegal Im- migration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which “repealed the old judicial-review scheme set forth in [8 U. S. C.] §1105a [(1994 ed.),] and instituted a new (and significantly more restrictive) one in … §1252,” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 475 (AAADC). Because courts of appeals lacked jurisdiction before IIRIRA to review the removal order of an alien who had already left the United States, see §1105a(c), most aliens who appealed such a decision were given an automatic stay of the removal order pending judicial review, see §1105a(a)(3). Three changes IIRIRA made are of particular importance here. First, the repeal of §1105a allows courts to adjudicate a petition for review even if the alien is removed while the petition is pending. Second, the presumption of an automatic stay was repealed and replaced with a provision stating that “[s]ervice of the petition … does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” §1252(b)(3)(B). Finally, IIRIRA provided that “no court shall enjoin the removal of any alien … unless [he] shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” §1252(f)(2). Pp. 3–5.
(b) The parties dispute what standard a court should apply when determining whether to grant a stay. Petitioner argues that the “traditional” stay standard should apply, meaning a court should consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether [he] will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties … ; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U. S. 770, 776. The Government argues that §1252(f) should govern, meaning an alien must show “by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law.” Pp. 5–6.
(c) An appellate court’s power to hold an order in abeyance while it assesses the order’s legality has been described as inherent, and part of a court’s “traditional equipment for the administration of justice.” Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 9–10. That power allows a court to act responsibly, by ensuring that the time the court takes to bring considered judgment to bear on the matter before it does not result in irreparable injury to the party aggrieved by the order under review. But a stay “is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Virginian R. Co. v. United States, 272 U. S. 658, 672. The parties and the public, while entitled to both careful review and a meaningful decision, are also entitled to the prompt execution of orders that the legislature has made final. Pp. 6–7.
(d) Section 1252(f) does not refer to “stays,” but rather to authority to “enjoin the removal of any alien.” An injunction and a stay serve different purposes. The former is the means by which a court tells someone what to do or not to do. While in a general sense many orders may be considered injunctions, the term is typically used to refer to orders that operate in personam. By contrast, a stay operates upon the judicial proceeding itself, either by halting or postponing some portion of it, or by temporarily divesting an order of enforceability. An alien seeking a stay of removal pending adjudication of a petition for review does not ask for a coercive order against the government, but instead asks to temporarily set aside the removal order. That kind of stay, “relat[ing] only to the conduct or progress of litigation before th[e] court[,] ordinarily is not considered an injunction.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 279. That §1252(f)(2) does not comfortably cover stays is evident in Congress’s use of the word “stay” in subsection (b)(3)(B) but not subsection (f)(2), particularly since those subsections were enacted as part of a unified overhaul of judicial review. The statute’s structure also clearly supports petitioner’s reading: Because subsection (b)(3)(B) changed the basic rules covering stays of removal, the natural place to locate an amendment to the standard governing stays would have been subsection (b)(3)(B), not a provision four subsections later that makes no mention of stays. Pp. 8–12.
(e) Subsection (f)(2)’s application would not fulfill the historic office of a stay, which is to hold the matter under review in abeyance to allow the appellate court sufficient time to decide the merits. Under subsection (f)(2), a stay would only be granted after the court in effect decides the merits, in an expedited manner. The court would have to do so under a “clear and convincing evidence” standard that does not so much preserve the availability of subsequent review as render it redundant. Nor would subsection (f)(2) allow courts “to prevent irreparable injury to the parties or to the public” pending review, Scripps-Howard, 316 U. S., at 9; the subsection on its face does not permit any consideration of harm, irreparable or otherwise. In short, applying §1252(f)(2) in the stay context would result in something that does not remotely look like a stay. As in Scripps-Howard, the Court is loath to conclude that Congress would, “without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review.” Id., at 11. The Court is not convinced Congress did so in §1252(f)(2). Pp. 12–13.
(f) The parties dispute what the traditional four-factor standard entails. A stay is not a matter of right, and its issuance depends on the circumstances of a particular case. The first factor, a strong showing of a likelihood of success on the merits, requires more than a mere possibility that relief will be granted. Similarly, simply showing some possibility of irreparable injury fails to satisfy the second factor. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___. Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. The third and fourth factors, harm to the opposing party and the public interest, merge when the Government is the opposing party. In considering them, courts must be mindful that the Government’s role as the respondent in every removal proceeding does not make its interest in each one negligible. There is always a public interest in prompt execution of removal orders, see AAADC, supra, at 490, and that interest may be heightened by circumstances such as a particularly dangerous alien, or an alien who has substantially prolonged his stay by abusing the processes provided to him. A court asked to stay removal cannot simply assume that the balance of hardships will weigh heavily in the applicant’s favor. Pp. 13–16.
Vacated and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a concurring opinion, in which Scalia, J., joined. Alito, J., filed a dissenting opinion, in which Thomas, J., joined.
OPINION OF THE COURT
NKEN V. HOLDER
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
JEAN MARC NKEN, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL on writ of certiorari to the united states court of appeals for the fourth circuit [April 22, 2009] Chief Justice Roberts delivered the opinion of the Court. It takes time to decide a case on appeal. Sometimes a little; sometimes a lot. “No court can make time stand still” while it considers an appeal, Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 9 (1942), and if a court takes the time it needs, the court’s decision may in some cases come too late for the party seeking review. That is why it “has always been held, … that as part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal.” Id., at 9–10 (footnote omitted). A stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it. This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria. I Jean Marc Nken, a citizen of Cameroon, entered the United States on a transit visa in April 2001. In December 2001, he applied for asylum under 8 U. S. C. §1158, withholding of removal under §1231(b)(3), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 3, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85, see 8 CFR §208.17 (2008). In his application, Nken claimed he had been persecuted in the past for participation in protests against the Cameroonian Government, and would be subject to further persecution if he returns to Cameroon. An Immigration Judge denied Nken relief after concluding that he was not credible. The Board of Immigration Appeals (BIA) affirmed, and also declined to remand for consideration of Nken’s application for adjustment of status based on his marriage to an American citizen. After the BIA denied a motion to reopen, Nken filed a petition for review of the BIA’s removal order in the Court of Appeals for the Fourth Circuit. His petition was denied. Nken then filed a second motion to reopen, which was also denied, followed by a second petition for review, which was denied as well. Nken filed a third motion to reopen, this time alleging that changed circumstances in Cameroon made his persecution more likely. The BIA denied the motion, finding that Nken had not presented sufficient facts or evidence of changed country conditions. Nken again sought review in the Court of Appeals, and also moved to stay his deportation pending resolution of his appeal. In his motion, Nken recognized that Fourth Circuit precedent required an alien seeking to stay a removal order to show by “clear and convincing evidence” that the order was “prohibited as a matter of law,” 8 U. S. C. §1252(f)(2). See Teshome-Gebreegziabher v. Mukasey, 528 F. 3d 330 (CA4 2008). Nken argued, however, that this standard did not govern. The Court of Appeals denied Nken’s motion without comment. App. 74. Nken then applied to this Court for a stay of removal pending adjudication of his petition for review, and asked in the alternative that we grant certiorari to resolve a split among the Courts of Appeals on what standard governs a request for such a stay. Compare Teshome-Gebreegziabher, supra, at 335, and Weng v. U. S. Attorney General, 287 F. 3d 1335 (CA11 2002), with Arevalo v. Ashcroft, 344 F. 3d 1 (CA1 2003), Mohammed v. Reno, 309 F. 3d 95 (CA2 2002), Douglas v. Ashcroft, 374 F. 3d 230 (CA3 2004), Tesfamichael v. Gonzales, 411 F. 3d 169 (CA5 2005), Bejjani v. INS, 271 F. 3d 670 (CA6 2001), Hor v. Gonzales, 400 F. 3d 482 (CA7 2005), and Andreiu v. Ashcroft, 253 F. 3d 477 (CA9 2001) (en banc). We granted certiorari, and stayed petitioner’s removal pending further order of this Court. Nken v. Mukasey, 555 U. S. ___ (2008). II The question we agreed to resolve stems from changes in judicial review of immigration procedures brought on by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, which substantially amended the Immigration and Nationality Act (INA), 8 U. S. C. §1101 et seq. When Congress passed IIRIRA, it “repealed the old judicial-review scheme set forth in [8 U. S. C.] §1105a and instituted a new (and significantly more restrictive) one in 8 U. S. C. §1252.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 475 (1999) (AAADC). The new review system substantially limited the availability of judicial review and streamlined all challenges to a removal order into a single proceeding: the petition for review. See, e.g., 8 U. S. C. §1252(a)(2) (barring review of certain removal orders and exercises of executive discretion); §1252(b)(3)(C) (establishing strict filing and briefing deadlines for review proceedings); §1252(b)(9) (consolidating challenges into petition for review). Three changes effected by IIRIRA are of particular importance to this case. Before IIRIRA, courts of appeals lacked jurisdiction to review the deportation order of an alien who had already left the United States. See §1105a(c) (1994 ed.) (“An order of deportation or of exclusion shall not be reviewed by any court … if [the alien] has departed from the United States after the issuance of the order”). Accordingly, an alien who appealed a decision of the BIA was typically entitled to remain in the United States for the duration of judicial review. This was achieved through a provision providing most aliens with an automatic stay of their removal order while judicial review was pending. See §1105a(a)(3) (“The service of the petition for review … shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs”). IIRIRA inverted these provisions to allow for more prompt removal. First, Congress lifted the ban on adjudication of a petition for review once an alien has departed. See IIRIRA §306(b), 110 Stat. 3009–612 (repealing §1105a). Second, because courts were no longer prohibited from proceeding with review once an alien departed, see Dada v. Mukasey, 554 U. S. 1, ___ (2008) (slip op., at 19–20), Congress repealed the presumption of an automatic stay, and replaced it with the following: “Service of the petition on the officer or employee does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” 8 U. S. C. §1252(b)(3)(B) (2006 ed.). Finally, IIRIRA restricted the availability of injunctive relief: “Limit on injunctive relief “(1) In general “Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. “(2) Particular cases “Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” §1252(f). This provision, particularly subsection (f)(2), is the source of the parties’ disagreement. III The parties agree that courts of appeals considering a petition for review of a removal order may prevent that order from taking effect and therefore block removal while adjudicating the petition. They disagree over the standard a court should apply in deciding whether to do so. Nken argues that the “traditional” standard for a stay applies. Under that standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U. S. 770, 776 (1987). The Government disagrees, arguing that a stay is simply a form of injunction, or alternatively that the relief petitioner seeks is more accurately characterized as injunctive, and therefore that the limits on injunctive relief set forth in subsection (f)(2) apply. Under that provision, a court may not “enjoin” the removal of an alien subject to a final removal 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.” 8 U. S. C. §1252(f)(2). Mindful that statutory interpretation turns on “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole,” Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997), we conclude that the traditional stay factors—not §1252(f)(2)—govern a request for a stay pending judicial review. A An appellate court’s power to hold an order in abeyance while it assesses the legality of the order has been described as “inherent,” preserved in the grant of authority to federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” All Writs Act, 28 U. S. C. §1651(a). See In re McKenzie, 180 U. S. 536, 551 (1901). The Court highlighted the historic pedigree and importance of the power in Scripps-Howard, 316 U. S. 4, holding in that case that Congress’s failure expressly to confer the authority in a statute allowing appellate review should not be taken as an implicit denial of that power. The Court in Scripps-Howard did not decide what “criteria … should govern the Court in exercising th[e] power” to grant a stay. Id., at 17. Nor did the Court consider under what circumstances Congress could deny that authority. See ibid. The power to grant a stay pending review, however, was described as part of a court’s “traditional equipment for the administration of justice.” Id., at 9–10. That authority was “firmly imbedded in our judicial system,” “consonant with the historic procedures of federal appellate courts,” and “a power as old as the judicial system of the nation.” Id., at 13, 17. The authority to hold an order in abeyance pending review allows an appellate court to act responsibly. A reviewing court must bring considered judgment to bear on the matter before it, but that cannot always be done quickly enough to afford relief to the party aggrieved by the order under review. The choice for a reviewing court should not be between justice on the fly or participation in what may be an “idle ceremony.” Id., at 10. The ability to grant interim relief is accordingly not simply “[a]n historic procedure for preserving rights during the pendency of an appeal,” id., at 15, but also a means of ensuring that appellate courts can responsibly fulfill their role in the judicial process. At the same time, a reviewing court may not resolve a conflict between considered review and effective relief by reflexively holding a final order in abeyance pending review. A stay is an “intrusion into the ordinary processes of administration and judicial review,” Virginia Petroleum Jobbers Assn. v. Federal Power Comm’n, 259 F. 2d 921, 925 (CADC 1958) (per curiam), and accordingly “is not a matter of right, even if irreparable injury might otherwise result to the appellant,” Virginian R. Co. v. United States, 272 U. S. 658, 672 (1926). The parties and the public, while entitled to both careful review and a meaningful decision, are also generally entitled to the prompt execution of orders that the legislature has made final. B Subsection (f)(2) does not by its terms refer to “stays” but instead to the authority to “enjoin the removal of any alien.” The parties accordingly begin by disputing whether a stay is simply a type of injunction, covered by the term “enjoin,” or a different form of relief. An injunction and a stay have typically been understood to serve different purposes. The former is a means by which a court tells someone what to do or not to do. When a court employs “the extraordinary remedy of injunction,” Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982), it directs the conduct of a party, and does so with the backing of its full coercive powers. See Black’s Law Dictionary 784 (6th ed. 1990) (defining “injunction” as “[a] court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury”). It is true that “ ‘[i]n a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam.’ ” Id., at 800 (8th ed. 2004) (quoting 1 H. Joyce, A Treatise on the Law Relating to Injunctions §1, pp. 2–3 (1909)). This is so whether the injunction is preliminary or final; in both contexts, the order is directed at someone, and governs that party’s conduct. By contrast, instead of directing the conduct of a particular actor, a stay operates upon the judicial proceeding itself. It does so either by halting or postponing some portion of the proceeding, or by temporarily divesting an order of enforceability. See Black’s, supra, at 1413 (6th ed. 1990) (defining “stay” as “a suspension of the case or some designated proceedings within it”). A stay pending appeal certainly has some functional overlap with an injunction, particularly a preliminary one. Both can have the practical effect of preventing some action before the legality of that action has been conclusively determined. But a stay achieves this result by temporarily suspending the source of authority to act—the order or judgment in question—not by directing an actor’s conduct. A stay “simply suspend[s] judicial alteration of the status quo,” while injunctive relief “grants judicial intervention that has been withheld by lower courts.” Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers); see also Brown v. Gilmore, 533 U. S. 1301, 1303 (2001) (Rehnquist, C. J., in chambers) (“[A]pplicants are seeking not merely a stay of a lower court judgment, but an injunction against the enforcement of a presumptively valid state statute”); Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1302 (1993) (same) (“By seeking an injunction, applicants request that I issue an order altering the legal status quo”). An alien seeking a stay of removal pending adjudication of a petition for review does not ask for a coercive order against the Government, but rather for the temporary setting aside of the source of the Government’s authority to remove. Although such a stay acts to “ba[r] Executive branch officials from removing [the applicant] from the country,” post, at 7 (Alito, J., dissenting), it does so by returning to the status quo—the state of affairs before the removal order was entered.
KENNEDY, J., CONCURRING
NKEN V. HOLDER
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
JEAN MARC NKEN, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL on writ of certiorari to the united states court of appeals for the fourth circuit [April 22, 2009] Justice Kennedy, with whom Justice Scalia joins, concurring. I join the Court’s opinion and agree that the traditional four-part standard governs an application to stay the removal of an alien pending judicial review. This is the less stringent of the two standards at issue. See Kenyeres v. Ashcroft, 538 U. S. 1301, 1303–1305 (2003) (Kennedy, J., in chambers). It seems appropriate to underscore that in most cases the debate about which standard should apply will have little practical effect provided the court considering the stay application adheres to the demanding standard set forth. A stay of removal is an extraordinary remedy that should not be granted in the ordinary case, much less awarded as of right. Virginian R. Co. v. United States, 272 U. S. 658, 672–673 (1926); see also Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 14). No party has provided the Court with empirical data on the number of stays granted, the correlation between stays granted and ultimate success on the merits, or similar matters. The statistics would be helpful so that experience can demonstrate whether this decision yields a fair and effective result. Then, too, Congress can evaluate whether its policy objectives are being realized by the legislation it has enacted. Based on the Government’s representations at oral argument, however, there are grounds for concern. See Tr. of Oral Arg. 35 (“[W]e do not have empirical data, . . . but [stays of removal] are—in the Ninth Circuit in our experience— . . . granted quite frequently”). This concern is of particular importance in those Circuits with States on our international borders. The Court of Appeals for Ninth Circuit, for example, considers over half of all immigration petitions filed nationwide, and immigration cases compose nearly half of the Ninth Circuit’s docket. See Catterson, Symposium, Ninth Circuit Conference: Changes in Appellate Caseload and Its Processing, 48 Ariz. L. Rev. 287, 297 (2006). Under either standard, even the less stringent standard the Court adopts today, courts should not grant stays of removal on a routine basis. The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, reinforces this point. Before IIRIRA, aliens who left the United States no longer had the ability to seek review of their removal orders, see 8 U. S. C. §1105a(c) (1994 ed.) (repealed 1996), so they could more easily have established irreparable harm due to their removal. It is perhaps for this reason Congress decided to “stay the deportation of [an] alien pending determination of the petition by the court, unless the court otherwise direct[ed].” §1105a(a)(3) (same). IIRIRA, however, removed that prohibition (as well as the automatic stay provision), and courts may now review petitions after aliens have been removed. See Brief for Respondent 44; ante, at 4, 15; post, at 5, 9 (Alito, J., dissenting). This change should mean that obtaining a stay of removal is more difficult. Under the Court’s four-part standard, the alien must show both irreparable injury and a likelihood of success on the merits, in addition to establishing that the interests of the parties and the public weigh in his or her favor. Ante, at 14–15. As the Court explains, because aliens may continue to seek review and obtain relief after removal, “the burden of removal alone cannot constitute the requisite irreparable injury.” Ante, at 15. As a result of IIRIRA there must be a particularized, irreparable harm beyond mere removal to justify a stay. That is not to say that demonstration of irreparable harm, without more, is sufficient to justify a stay of removal. The Court has held that “[a] stay is not a matter of right, even if irreparable injury might otherwise result.” Virginian R. Co., supra, at 672. When considering success on the merits and irreparable harm, courts cannot dispense with the required showing of one simply because there is a strong likelihood of the other. This is evident in the decisions of Justices of the Court applying the traditional factors. See, e.g., Curry v. Baker, 479 U. S. 1301, 1302 (1986) (Powell, J., in chambers) (“It is no doubt true that, absent [a stay], the applicant here will suffer irreparable injury. This fact alone is not sufficient to justify a stay”); Ruckelshaus v. Monsanto Co., 463 U. S. 1315, 1317 (1983) (Blackmun, J., in chambers) (“[L]ikelihood of success on the merits need not be considered … if the applicant fails to show irreparable injury from the denial of the stay”). As those decisions make clear, “ ‘the applicant must meet a heavy burden of showing not only that the judgment of the lower court was erroneous on the merits, but also that the applicant will suffer irreparable injury if the judgment is not stayed pending his appeal.’ ” Williams v. Zbaraz, 442 U. S. 1309, 1311 (1979) (Stevens, J., in chambers) (quoting Whalen v. Roe, 423 U. S. 1313, 1316 (1975) (Marshall, J., in chambers)).
ALITO, J., DISSENTING
NKEN V. HOLDER
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
JEAN MARC NKEN, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL on writ of certiorari to the united states court of appeals for the fourth circuit [April 22, 2009] Justice Alito, with whom Justice Thomas joins, dissenting. The Court’s decision nullifies an important statutory provision that Congress enacted when it reformed the immigration laws in 1996. I would give effect to that provision, and I therefore respectfully dissent. I When an alien is charged with being removable from the United States, an Immigration Judge (IJ) conducts a hearing, receives and considers evidence, and determines whether the alien is removable. See 8 U. S. C. §1229a(a); 8 CFR §§1240.1(a)(1)(i), (c) (2008). If the IJ enters an order of removal, that order becomes final when the alien’s appeal to the Board of Immigration Appeals (Board) is unsuccessful or the alien declines to appeal to the Board. See 8 U. S. C. §1101(47)(B); 8 CFR §§1241.1, 1241.31. Once an order of removal has become final, it may be executed at any time. See 8 U. S. C. §§1231(a)(1)(B)(i), 1252(b)(8)(C); 8 CFR §1241.33. Removal orders “are self-executing orders, not dependent upon judicial enforcement.” Stone v. INS, 514 U. S. 386, 398 (1995). After the removal order is final and enforceable, the alien may file a motion to reopen before the IJ, see 8 U. S. C. §1229a(c)(7), or a petition for review before the appropriate court of appeals, see §1252(a)(1). While either challenge is pending, the alien may ask the Executive Branch to stay its own hand. See 8 CFR §§241.6(a)–(b), 1241.6(a)–(b). If, however, the alien wants a court to restrain the Executive from executing a final and enforceable removal order, the alien must seek an injunction to do so. See 8 U. S. C. §1252(a)(1) (making a final order of removal subject to 28 U. S. C. §2349(b), which provides that an “interlocutory injunction” can “restrain” the “execution of” a final order). The plain text of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Div. C, 110 Stat. 3009–546, provides the relevant legal standard for granting such relief: “Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” 8 U. S. C. §1252(f)(2). II In my view, petitioner’s request for an order preventing his removal pending disposition of his current petition for review was governed by 8 U. S. C. §1252(f)(2). Petitioner is “remova[ble] … pursuant to a final order,” and he sought a court order to “enjoin” the Executive Branch’s execution of that removal. A There is no dispute that petitioner is “remova[ble] … pursuant to a final order.” Ibid. On March 4, 2005, the IJ determined that petitioner was removable under §1227(a)(1)(B) and denied his claims for asylum, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 85. See App. 32–43. Petitioner appealed to the Board, and on June 16, 2006, the Board affirmed. Id., at 44–49. On that date, petitioner’s order of removal became administratively final, and the Executive Branch became legally entitled to remove him from the United States. See 8 U. S. C. §1231(a)(1)(B)(i); 8 CFR §1241.33(a). B The only remaining question, therefore, is whether the interim equitable relief that petitioner sought was an order “enjoin[ing]” his removal as that term is used in 8 U. S. C. §1252(f)(2). I believe that it was. In ordinary usage, the term “enjoin” means to “require,” “command,” or “direct” an action, or to “require a person … to perform, or to abstain or desist from, some act.” Black’s Law Dictionary 529 (6th ed. 1990) (hereinafter Black’s). See also Webster’s Third New International Dictionary 754 (1993) (defining “enjoin” to mean “to direct, prescribe, or impose by order”; “to prohibit or restrain by a judicial order or decree”). When an alien subject to a final order of removal seeks to bar executive officials from acting upon that order pending judicial consideration of a petition for review, the alien is seeking to “enjoin” his or her removal. The alien is seeking an order “restrain[ing]” those officials and “requir[ing]” them to “abstain” from executing the order of removal. The Court concludes that §1252(f)(2) does not apply in this case because, in the Court’s view, that provision applies only to requests for an injunction and not to requests for a stay. That conclusion is wrong for at least three reasons. 1 First, a stay is “a kind of injunction,” Black’s 1413, as even the Court grudgingly concedes, see ante, at 10 (an order blocking an alien’s removal pending judicial review “might technically be called an injunction”). See also Teshome-Gebreegziabher v. Mukasey, 528 F. 3d 330, 333 (CA4 2008) (the term “stay” “is a subset of the broader term ‘enjoin,’ ”); Kijowska v. Haines, 463 F. 3d 583, 589 (CA7 2006) (a stay “is a form of injunction”); Weng v. United States Atty. Gen., 287 F. 3d 1335, 1338 (CA11 2002) (“[T]he plain meaning of enjoin includes the grant of a stay”).