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Court Holds Traditional Standard Applies to Stays of Removal Pending Petitions for Review

 Nken v. Holder, 556 U.S. 418 (2009)

The Supreme Court held that a court of appeals should apply the traditional criteria governing stays when adjudicating a stay of removal pending a petition for review. In doing so, the Court rejected the government’s argument that the stringent standard in INA § 242(f)(2) (“clear and convincing evidence” that the removal order “is prohibited as a matter of law") applies. The Court’s decision reversed the Fourth and Eleventh Circuits, which had held that INA § 242(f)(2) applies to stays of removal pending petitions for review.

Under the traditional standard for stays, the court shall consider (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. The Court noted that the first two factors are most critical. The last two factors merge because the government is the respondent. In addition, the Court advised “that the burden of removal alone cannot constitute the requisite irreparable injury” and that courts should not assume that “‘ordinarily, the balance of hardships will weigh heavily in the applicant’s favor,’” as the Ninth Circuit had assumed previously. The Court remanded the case to the court of appeals to apply the traditional standard to the petitioner’s request for a stay of removal.

Chief Justice John G. Roberts, Jr. wrote the opinion for the Court. Justice Kennedy, joined by Justice Scalia, authored a concurrence, and Justice Alito, joined by Justice Thomas, dissented.

Read the opinion.

Practice Advisory: Seeking a Judicial Stay of Removal in the Court of Appeals (updated Jan. 24, 2014)