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Ninth Circuit Holds Courts Have Power to Grant Stay of Removal Under IIRIRA
by Carl R. Baldwin

In a case that must have caused simultaneous elation and distress on the part of the alien and his attorneys, the Ninth Circuit first found that IIRIRA did not prohibit a court from granting a stay of removal, but then held that the alien did not merit the requested relief.

The case is Andreiu v. Ashcroft, No. 99-70274 (9th Cir. June 18, 2001). It focuses on the question of whether the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), in limiting the power of a court to “enjoin the removal of any alien,” prohibits a court from granting a stay of removal. The statutory provision is INA 242(f)(2) (I will cite the INA provisions rather than the equivalent 8 USC provisions): “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.” Does this provision preclude a court from granting a stay of removal? After a rather elaborate exercise in statutory construction, the en banc Ninth Circuit decided that it did not. The court first looked at the provision that precedes INA 242(f)(2), stating that no court other than the Supreme Court “shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of this subchapter.” INA 242(f)(1). The use of “restrain” along with “enjoin” persuaded the court that these two terms are not identical: “If Congress had intended the term ‘enjoin’ to cover the entire universe of judicial power over immigration proceedings, there would have been no need to include the phrase ‘or restrain….The only construction that saves 242(f)(1) from surplusage is that ‘enjoin’ refers only to the class of actions properly defined as injunctions, not to the full range of judicial action…Just as Congress added the term ‘restrain’ to 242(f)(1), it could have written 242(f)(2) to limit courts’ power to ‘enjoin or stay’ the deportation of an alien. But it did not do so, and we will not lightly conclude that this omission was an oversight.” The court notes that the title of INA 242(f) is: “Limit on injunctive relief,” and notes the Supreme Court’s analysis of the provision: “By its plain terms, and even by its title, that provision (INA 242(f)) is nothing more or less than a limit on injunctive relief.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999). The court concluded: “The clear concern of the section is limiting the power of courts to enjoin the operation of the immigration laws, not with stays of removal in individual cases.”

Having established its power to grant a stay of removal, the court then dashed the hopes of the alien, a Romanian national, by denying the relief applied for. The court agreed with the Board of Immigration Appeals that the asylum application was not persuasive, especially given the fact that Romania was no longer the repressive regime that it had been in the late 1980s.

Comment: In the Ninth Circuit it is now the law that courts have the power to grant stays of removal in meritorious cases. The decision says not a word about how or whether other circuits have decided the issue, and one is left with the impression that it has not been decided elsewhere. One may suppose that the INS will contest any effort to spread the Ninth Circuit doctrine to other circuits, And it may gain support from a strong and lengthy dissent on the stay of removal issue in the Andreiu case. (It was strictly speaking a concurrence, since there was no disagreement about the lack of merit of the application.) The concurrence looks to Black’s Law Dictionary to find support for the view that a “stay” is a “kind of injunction,” and cites a number of cases from different circuits that use the terms “stay” and “enjoin” interchangeably.

We may not have heard the last on the question of whether, under IIRIRA, a court may grant a stay of removal.


About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at Carl.Baldwin@immigrationnewsmonthly.com.

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from www.amazon.com



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