Nken v. Mukasey


When a court reviews a petition for a stay of an alien's removal, should it use the standard found in 8 U.S.C. § 1252(f)(2), or the traditional four-factor test courts use for general preliminary injunctive relief?

Oral argument: 
January 21, 2009

When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") in 1996, it did so partly with the intention of making it more difficult for aliens to remain in United States when an agency had deemed they must be removed; the IIRIRA thus contained stricter standards for judicial courts to follow when overruling an agency and allowing such aliens to remain in the country. At issue is how far Congress went in creating stricter standards, and which traditional standards it maintained. Petitioner Jean Marc Nken, an alien who applied for asylum in the U.S., was ordered to leave the country, and filed a motion for a stay of removal pending appeal of his case. The Fourth Circuit, instead of applying a traditional, four-factored test to determine whether to grant the stay, applied Section 1252(f)(2) of IIRIRA, which bars judges from enjoining the removal of aliens unless the alien can clearly show that the removal is prohibited by law. Petitioner appealed, contending that Section 1252(f)(2) was not intended to apply to motions for stays, and instead was only meant to apply to motions for injunctions. How the Supreme Court rules will determine the proper way to interpret IIRIRA, determine how much power judicial courts have over federal agencies once they have made decisions in aliens' cases, and impact both national security concerns and petitioners fighting the decision to deport them.

Questions as Framed for the Court by the Parties 

In addition, the application for stay is treated as a petition for a writ of certiorari, and the petition for a writ of certiorari is granted limited to the following question: "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 section 242(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252(f)(2), or instead by the traditional test for stays and preliminary injunctive relief."


In April 2001, Jean Marc Nken, a citizen of Cameroon, entered the United States on a transient visa, and remained in the U.S. after his visa had expired. See Brief for Respondent, Mukasey, at 3. Eight months later, in December 2001, Nken applied for asylum, hoping to remain in the United States so he would not have to return to persecution in Cameroon. See Brief for Petitioner, Nken, at 8. Nken alleged in his application that he had participated in student protests against the government in 1990, before leaving to study in the Cote d'Ivoire. See Brief for Respondent at 4. When he returned to Cameroon in 2000, he was imprisoned and beaten for his prior protests. See Brief for Petitioner at 8-9. After 30 days, he was released, and he left Cameroon, eventually entering the United States. See Brief for Respondent at 4.

The Immigration Judge ("IJ") at Nken's removal hearing denied the petition for asylum, finding that the documents Nken submitted to prove the risk he would face upon returning to Cameroon were not authenticated and only worth "de minimus weight." See Brief for Petitioner at 9. The IJ further found Nken's story vague and improbable, and noted numerous discrepancies. See Brief for Respondent at 4-5. On March 4, 2005, the IJ therefore ordered Nken to be removed from the United States. See Id. at 4; Brief for Petitioner at 10.

During this time period, Nken remained in the United States and, on November 4, 2004, married a U.S. citizen, Brigitte Beloeck. See Brief for Petitioner at 10. Beloeck filed an I-130 Petition for Alien Relative on November 17, 2004, seeking lawful resident status for Nken on the basis of his lawful marriage to a U.S. citizen. See id.

Nken appealed the IJ's decision to the Board of Immigration Appeals ("BIA") and sought to remand his case to the IJ, hoping the IJ would alter the decision based on Nken's marriage. See Brief for Respondent at 5. The BIA upheld the IJ's decision and refused to reopen the case based on Nken's marital status because the I-130 Petition had not yet been approved. See Id. Nken filed a petition for review with both the BIA and the Fourth Circuit, but both denied review. See Brief for Petitioner at 11.

Nken's I-130 Petition was approved on August 22, 2006, and Nken filed a petition to reopen the removal proceedings. See id. The BIA denied the petition, and the Fourth Circuit denied Nken's subsequent motion for review. See id.

Up until that point, Cameroon had been a democracy; but in February 2008, President Paul Biya announced that he was altering the Cameroon Constitution and making himself a dictator. See id. Nken filed a final motion to reopen his case, based on changed circumstances in Cameroon. See Brief for Respondent at 7. The BIA refused to reopen the case, as President Biya had already been in power for twenty-five years, and there was no significant change in circumstances. See Id.

Nken was then arrested for violating the Intensive Supervision and Appearance Program, which required him to report in person every day. See Brief for Petitioner at 14. Nken then filed a petition for habeas corpus relief in the District Court for the District of Columbia, a petition for review in the Fourth Circuit, and a motion to stay his removal in the Fourth Circuit. See id. The Fourth Circuit relied on 8 U.S.C. § 1252(f)(2) to deny Nken's motion for a stay of removal. See id. at 15. Nken appealed to the Supreme Court, arguing that the Fourth Circuit should have used the traditional four-factor test instead of 8 U.S.C. § 1252(f)(2). See Brief for Petitioner at 15-18.


Traditionally, in the context of determining whether to grant a stay, federal courts use a four-factor test. See Brief for Petitioner, Nken, at 3. Petitioner Jean Marc Nken points out that most federal courts use this test to stay an alien's removal from the country until the outcome of appeal is heard. See id. The four factors are: the likelihood of success on the merits at appeal, the possibility of irreparable harm if the stay is denied, the harm to other parties a denial would cause, and the public interest in granting a stay. See id. However, the Eleventh and Fourth Circuits use a provision of the Illegal Immigration Reform and Immigrant Responsibility Act [IIRIRA] as the rule governing discretionary motion for stays. The IIRIRA provision, 8 U.S.C. § 1252(f)(2), limits injunctive relief for orders of removal of aliens unless it can be shown that the removal order is clearly prohibited by law. See 8 U.S.C. § 1252(f)(2). The issue in Nken v. Mukasey is whether 8 U.S.C. § 1252(f)(2) is an appropriate standard to apply when considering motions for stays of removal of aliens, or whether courts should use the traditional four-factor test. See Grant for Certiorari, Nken v. Mukasey, Questions Presented. This issue turns on what Congress intended when it passed 8 U.S.C. § 1252(f)(2), as gleaned from the text, structure, and legislative history of the Act.

Plain Text and Structure of IIRIRA

Nken contends that Congress could not have intended 8 U.S.C. § 1252(f)(2) to apply to motions for stays because the plain text of the provision refers only to injunctions against removal of aliens, and says nothing about motions for stays. See Brief for Petitioner at 16. Thus, according to Nken, the plain language of the statute shows that the provision is intended to govern injunctions only, and not stays. See id.

Respondent Mukasey counters that a stay is not different from an injunction, but instead is one type of injunction, and thus 8 U.S.C. § 1252(f)(2) applies to motions for stays. See Brief for Respondent, Mukasey at 9. According to Mukasey, an order preventing removal of an alien-a granting of a motion for stay-can naturally be called an injunction against removing that person. See Id.

Nken argues that a stay is not merely one type of injunction, and that to view it in this light is to ignore the formal distinction between the two that custom and history gives us. See Brief for Petitioner at 21. Though an injunction and a stay can have the same effect, they are two separate mechanisms: an injunction is a legal remedy governing a party's conduct, while a stay temporarily suspends a judicial order, and is not a part of the ultimate remedy being sought. See id. at 22. This is why a court may stay an injunction, but does not "enjoin" a stay. See id. at 23. Nken also points to the different legal rules that apply depending on whether a judge imposes an injunction or issues a stay, because of their different purposes. See id. at 24. Nken argues that because of this, the distinction between these two orders is often dispositive in determining whether a judge can act. See id.

Respondent Mukasey counters that this distinction is not relevant when applying the statute; because the statute uses broad terminology over narrow technical language, Mukasey argues that it is clearly intended to go beyond narrow technical definitions of "injunction." See Brief for Respondent at 12. Mukasey points out, for example, that the statute provides that no court shall "enjoin" an alien's removal without meeting the requirements laid out therein. Congress deliberately used the expansive word "enjoin," Mukasey argues, instead of language relating to any one specific type of injunction. See Id. According to Mukasey, because a stay is a type of injunction, as it requires a party to "abstain" from deporting an alien, a motion to grant a stay "enjoins" an alien's removal, and thus falls directly under the purview of the statute. See Id. at 13-14.

Petitioner Nken contends that Congress used the word "enjoin" in 8 U.S.C. § 1252(f)(2) and did not intend to use the word "stay," which is evident when considering the overall structure of IIRIRA. See Brief for Petitioner at 16. In other sections of the Act, such as 8 U.S.C. § 1252(b)(3)(B), where Congress intended the legislation to govern stays, it specifically used the terminology "stay." See id. Furthermore, Nken points out that Congress did not give any indication that the provisions dealing with "stays" should be read together with provisions such as 8 U.S.C. § 1252(f)(2) that do not reference stays. See id. Nken also points out that Congress used the term "restrain" to describe a judge's action in granting a stay, while "enjoin" typically describes a judge's action in granting an injunction. See id. at 17. The provision at issue only uses the word "enjoin," not "restrain." 8 U.S.C. § 1252(f)(2). Nken argues that Congress differentiated between "stay" and "injunction," and thus its wording was deliberate in excluding the word "stay" from the provision at issue. See id. at 33.

Respondent Mukasey contends that because all of 8 U.S.C. § 1252(f)(2), as compared to other sections of the statute, deals with standards of relief aliens may seek, it is logical that it would also apply to stays, which would be a form of relief in this context. See Brief for Respondent at 23. Mukasey argues that Congress only distinguished between injunctions and stays in the statute where it intended there to be a difference (for example, in 8 U.S.C. § 1252(f)(1)). See Id. Furthermore, other parts of IIRIRA, such as 8 U.S.C. § 1252(b)(3)(B) did specifically refer to stays, but gave no standard that judges should follow in determining when to grant one. Mukasey therefore contends that it is rational to look elsewhere in the statute for that standard, which 8 U.S.C. § 1252(f)(2) clearly gives. See Id. at 24.

Legislative History of IIRIRA

Mukasey contends that the drafting history of the Act further evidences the fact that 8 U.S.C. § 1252(f)(2) applies to stays of removal as well as injunctions. See Brief for Respondent at 29. According to Mukasey, because IIRIRA was intended to fundamentally reform the review of alien appeals for citizenship, it sought to allow for easier methods of alien removal, and so made their cases reviewable by federal courts even when those aliens were abroad at the time. See Id. at 29. Mukasey argues that the overall goal and purpose of the IIRIRA, and of Section 1252(f) in particular, is to make it more difficult for aliens to remain in the United States after an agency has rejected their claims, and so has heightened the standard for aliens who want to remain pending judicial review of their cases. See Id. at 31. Considering 8 U.S.C. § 1252(f)(2) in this context, to view it as encompassing both injunctions and stays clearly effectuates the Act's overall purpose of heightening the standard for aliens to remain in the United States, Mukasey contends. See Id. at 34.

Nken counters that though Congress intended to make it harder for aliens to remain in the United States, it did not intend for IIRIRA to be so sweeping that it do away with the traditional standard for stays. See Brief for Petitioner at 39. Nken points out that since IIRIRA has been passed, Congress has rejected several proposed amendments to 8 U.S.C. § 1252(f)(2) that would have specifically included the motions for stay under the restrictive standard there. See id. This shows, Nken argues, that Congress intended to preserve the traditional standard. See id.

IIRIRA and the Suspension Clause

Several law professors supporting Nken argue that the Fourth Circuit's interpretation of IIRIRA contradicts the Suspension Clause of the Constitution, which provides federal courts with the power to review deportation orders and grant effective relief as part of their jurisdiction over writ of habeas corpus claims. See Brief of Amicus Curiae Law Professors in Support of Petitioner at 4. The law professors contend that applying 8 U.S.C. § 1252(f)(2) would impose an unconstitutional limit on this Suspension Clause power. See Id. at 4-5. According to them, a federal court's power to grant temporary orders, such a stay of removal, is integral to its ability to grant effective relief. See Id. at 5. They claim that where an alien is unable to meet the high standards of 8 U.S.C. § 1252(f)(2) and is sent back to a country to face irreparable harm, a later federal judgment in that person's favor is ultimately meaningless. See Id.

Mukasey counters the contentions that application of 8 U.S.C. § 1252(f)(2) improperly infringes on powers granted by the Suspension Clause by contending that the reviews typically focus on factual questions, and historically, the power to decide a habeas corpus claim focuses on constitutional and legal questions rather than factual ones. See Brief for Respondent at 43. If a reversal were required on legal grounds, Mukasey argues, 8 U.S.C. § 1252(f)(2) would still be constitutional, as the standard for issuing a stay is whether the alien is entitled to relief "as a matter of law." See Id. at 44. Thus, according to Mukasey, the standard laid out in 8 U.S.C. § 1252(f)(2) as applied to the granting of temporary stays of deportation poses no constitutional challenge. See Id. at 43.


In 2007, over 319,000 "aliens," or non-U.S citizens, were ordered to leave the United States. See U.S. Department of Homeland Security, Office of Immigration Statistics Annual Report, December 2008: Immigration Enforcement Actions 2007. Every month, between 1,000 and 1,200 aliens petition for a review of these immigration decisions, seeking a reversal of the decision to deport them. See Emergency Motion for a Stay of Removal at 8. Most of these aliens simultaneously petition for a stay of their removal. See Id. Without the stay, these aliens would have to pursue their case from outside the country.

In Nken v. Mukasey, the Supreme Court will determine the proper standard for granting a stay of removal. Nken argues that the traditional four-factor test should govern stays, and courts should balance the likelihood that the alien will succeed on the merits at appeal, the possibility of irreparable harm to the alien if the stay is denied, the irreparable harm caused if the alien is not deported, and the public interest in granting a stay. See Brief for Petitioner, Nken, at 3. In contrast, Mukasey claims that the stricter 8 U.S.C. 1252(f)(2) test applies, see Brief for Respondent, Mukasey, at 9, requiring alien petitioners to provide clear and convincing evidence that the Board of Immigration Appeals ("BIA") made a mistake in their ruling and that removal of the immigrant would be legally prohibited, see 8 U.S.C. § 1252(f)(2); Brief of Amici Curiae American Immigration Lawyers Association et al. ("AILA") in Support of Petitioner at 2.

The American Immigration Lawyers Association ("AILA") worries that application of § 1252(f)(2) over the traditional test will disadvantage aliens with meritorious petitions for review. See Brief of AILA at 2. TheAILA points out that the § 1252(f)(2) standard is not only more demanding than the traditional standard, but it is also more demanding than the standard the court will later use in evaluating the decision to deport them. See id. at 7-8. This worries the AILA, as petitions for stays of removal occur early on in the review process, often before the case is fully developed, before the aliens are represented by counsel, and before the administrative record from their deportation hearing is available. See id. at 22-8.

The AILA finds it even more troubling that, unlike the traditional test, § 1252(f)(2) does not consider equitable factors, such as the danger the alien would face if deported to his home country. See id. at 2. If a court denies the petition for a stay of removal and the alien is deported, it is often difficult for the alien to return to the U.S. if the decision to deport them is later overturned. See id. at 28-9. This is especially true if the alien had petitioned for asylum, as Nken did, and was deported to face persecution. See id. at 5-6.

The Washington Legal Foundation ("WLF") agrees that § 1252(f)(2) is more demanding than the traditional test, but claims that there are safeguards in place to protect those with asylum claims and reduce the risk that they will be deported. See Brief of Amici Curiae Washington Legal Foundation and Allied Educational Foundation ("WLF") in Support of Respondent at 6-7. Furthermore, WLF points out that there is still a risk with the traditional standard that aliens with meritorious asylum claims will be deported. See id. at 6.

Both Mukasey and the WLF believe the stricter § 1252(f)(2) standard is necessary to prevent aliens from abusing the legal process to remain in the United States. See Brief for Respondent at 36; Brief of WLF at 2. According to the WLF, a loose standard "permits savvy attorneys to postpone indefinitely the deportation of their alien clients." See Brief of WLF at 2. This could encourage aliens tofilepetitions for review even if the petitions have no merit just to delay their deportation. See Brief for Respondent at 36. The WLF believes such a system could "undermin[e] the effectiveness of immigration enforcement efforts." See WLF News Release: Court Urged Not to Permit Aliens to Delay Deportation Pending Appeal, January 13, 2009. Immigration enforcement efforts are particularly crucial, the WLF claims, because of national security concerns. See Brief of WLF at 2. Therefore, the WLF believes, deportation decisions should be respected except in limited circumstances. See id.


In Nken v. Mukasey, the Court will determine the standard of review for petitions for stays of removal. Petitioner Nken argues that courts should apply the traditional four-factor test used for preliminary injunctive relief. Respondent Mukasey argues that courts should instead use section 1252(f)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act. Application of Section 1252(f)(2) could make it harder for petitioners to get stays of removal, and puts them at risk for deportation where they could face irreparable harm, such as persecution. On the other hand, the more lenient traditional standard has the potential to thwart Congressional intent and allow aliens to indefinitely postpone deportation, causing potential national security concerns.

Edited by