Monday, April 4, 2011
Last week, the U.,S. Court of Appeals for the Ninth Circuit, in a per curiam opinion by a panel of Judges Kim McLane Wardlaw, Raymond Fisher, and Marcia Berzon, that will have a potentially damaging limiting effect on the way that courts review stays for removal while a removal order is being appealed. The case is Leiva-Perez v. Holder.
Roughly half of all all of the removal cases arise in the Ninth Circuit, making the Ninth Circuit's stay standard all the more important. The Court in Leiva-Perez set forth a new, more restrictive standard for stays of removal while an appeal is pending. The major change is that the noncitizen seeking a stay must now "show that an irreparable injury is the more probable or likely outcome." Before, the requirement was that the noncitizen establish a "possibility" of irreparable injury.
In 2009, the U.S. Supreme Court held in Nken v. Holder, 129 S. Ct. 1749, 1760 (2009), that stays of removal are governed by “the traditional test for stays,” rather than 8 U.S.C § 1252(f)’s higher standard for enjoining an alien’s removal but declined to clarify “what that [traditional stay] test is.” The Ninth Circuit explained the background of its own standard:
"Congress did not specify the standard that courts should apply in evaluating an alien’s request to stay his removal pending our adjudication of his petition for review. In Abbassi v. INS, 143 F.3d 513 (9th Cir. 1998), we decided to apply “the same standards employed by district courts in evaluating motions for preliminary injunctive relief” to those stay requests. Id. at 514. We explained that to justify a stay under that standard: Petitioner must show either a probability of success on the merits and the possibility of irreparable injury, or that serious legal questions are raised and the balance of hardships tips sharply in petitioner’s favor. These standards represent the outer extremes of a continuum, with the relative hardships to the parties providing the critical element in determining at what point on the continuum a stay pending review is justified. Id. (citations omitted). This “continuum” was essentially the same as the “sliding scale” approach we long applied to requests for preliminary injunctions, whereby “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
The Abbassi formulation remained the standard for stays of removal until an aspect of it—its treatment of the irreparable harm factor—was rejected as too lenient in Nken. Now, the standard has been changed from showing some "possibility of irreparable injury" to "probability."
The Ninth Circuit in Leiva-Perez describes that "an alien’s burden with regard to irreparable harm is higher than it is on the likelihood of success prong, as she must show that an irreparable injury is the more probable or likely outcome."
UPDATE: One reader highlighted for me some language in the opinion that attorneys for the petitioner should not ignore -- and may provide immigrants seeking a stay a ray of hope:
"We emphasize that although petitioners have the ultimate burden of justifying a stay of removal, the government is obliged to bring circumstances concerning the public interest to the attention of the court. Nken’s admonition that we cannot base stay decisions on assumptions and “blithe assertion[s],” id., applies with equal force to the government’s contentions in opposing stay requests. The relevant circumstances would include any reason to believe that the petitioner would not in fact be removed were the stay denied."