On April 22, 2009, the Supreme Court decided Nken v. Holder, No. 08-681.
Until 1996, federal courts lacked jurisdiction to review administrative orders requiring the removal of an alien after the alien had left the United States, but an alien who was seeking judicial review was entitled to an automatic stay of the removal until the review was completed. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) changed these rules, allowing courts to review removal orders even after the affected alien had left the country but repealing the automatic-stay provision. 8 U.S.C. §§ 1252(a) and 152 (b)(c)(C). The IIRIRA also restricted the ability of a court to enjoin the removal of an alien, providing that an injunction may issue only if the alien "shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law." Id. § 1252(f).
Nken, a citizen of Cameroon, sought asylum and related relief against his removal from the United States, but his applications were denied administratively. He appealed the denial to the U.S. Court of Appeals for the Fourth Circuit, and asked that court to stay his removal from the United States until it had decided the appeal. He argued that his request for a stay should be decided according to the traditional four-part standard for a stay pending appeal, which considers (1) whether the party seeking a stay has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured if a stay is not issued; (3) whether issuing the stay would substantially harm the interests of other parties; and (4) where the public interest lies. The government asserted that the stay request was governed by the statutory standard of § 1252(f). The Fourth Circuit denied the stay without comment.
The Supreme Court agreed with Nken that the traditional standard for granting a stay continued to apply. It noted that § 1252(f) referred only to "injunctions," but not to "stays," and distinguished between the two forms of relief. Upon careful analysis of the statute, the Court concluded that it did not clearly express "a purpose [to] deprive the Court of Appeals of its customary power to stay orders under review."
The Court cautioned, however, that Nken would not automatically be entitled to a stay under the traditional test. In particular, it observed that, in light of the IIRIRA's repeal of the old automatic-stay rule, the mere fact of an alien's removal was not enough to establish the likelihood of irreparable harm if a stay is denied. The Court also warned against the tendency of some courts to assume that the government's interest in any individual immigration case is always negligible. The case was remanded to the Fourth Circuit for reconsideration of Nken's application for a stay.
Chief Justice Roberts delivered the opinion of the Court, in which Justices Stevens, Scalia, Kennedy, Souter, Ginsburg and Breyer joined. Justice Kennedy filed a concurring opinion in which Justice Scalia joined. Justice Alito filed a dissenting opinion in which Justice Thomas joined.