Wednesday, April 22, 2009

BREAKING NEWS: S Ct Rejects U.S. Government's Argument on Standard on Stay of Removal

SCOTUS blog has the scoop on the latest immigration decision from the Supreme Court.  In Nken v. Holder (click here for a previous posting on oral argument in the case), Chief Justice Roberts, in a workmanlike opinion, wrote for the 7-2 majority:

"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 [for the Fouth Circuit] 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."

In so holding, the Court resolved a split betweem the Fourth and Eleventh Circuits, on one side, and the Second, Third, Fifth Sixth, Seventh, and Ninth Circuits on the other.

Justice Kennedy filed a concurring opinion joined by Justice Scalia, which emphasized that there is a demanding standard for the issuance of a stay and suggesting that the Ninth Circuit is perhaps overly liberal in granting stays.

Justice Alito, joined by Justice Thomas, dissented, emphaszing that "[t]he Court's decision nullifies an important statutory provision that Congress enacted when it reformed the immigration laws in 1996." 


UPDATE Jenner & Block associate Lindsay Harrison represented Jean Marc Nken on a pro bono basis. Harrison told the ABA Journal the Supreme Court oral argument was her first appellate argument in any court..


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