Wednesday, November 26, 2008

Supreme Court to Review Stay Standard in Removal Case

The Supreme Court granted cert today in an immigration case.  The case is Nken v. Mukasey (08-681). The Court has the opportunity to clear up a conflict on the standard for barring deporation pending judicial review of an alien’s plea for asylum or other relief from being deported. The specific question is whether a federal law barring courts from issuing binding orders to block deportation of an alien only applies to injunctions, or also applies to requests for postponement of removal pending court review.

The case involves Jean Marc Nken, a native of Cameroon who fears persecution from the regime that now governs his home country. His wife and son are U.S. citizens. His family has been active in political protests in his homeland. He had been denied a stay of a deportation order while he pursued review of the denial of his asylum claim. The Justices ordered expedited briefing in the case, and set it for oral argument at 1 p.m. on Wed., Jan. 21. In the meantime, the Court blocked his deportation “pending further order.”

Issue: Whether the decision of a court of appeals to stay an alien's removal pending consideration of the alien's petition for review is governed by the standard set forth in 8 U.S.C. 1252(f)(2) or instead by the traditional test for stays and preliminary injunctive relief. * Application for stay pending appeal

Response to application

Reply of applicant


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This is a no-brainer:


8 U.S.C. 1252(f)(2), as set forth unambiguously in the statute, governs whether a stay is authorized in removal cases.
Opinion by Roberts, CJ.
Dissent by Ginsberg, J.

Posted by: Thomas Lillich | Nov 26, 2008 10:03:51 AM

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