Nken v. Holder

RESPONDENT:Eric Holder, Attorney General
LOCATION: University of Yaoundé

DOCKET NO.: 08-681
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 556 US (2009)
GRANTED: Nov 25, 2008
ARGUED: Jan 21, 2009
DECIDED: Apr 22, 2009

Edwin S. Kneedler – Acting Solicitor General, Department of Justice, for the respondent
Lindsay C. Harrison – argued the cause for the petitioner

Facts of the case

The Board of Immigration Appeals (Board) denied Jean Marc Nken’s petition to reopen his case regarding his deportation. He appealed arguing that the Board abused its discretion in denying his motion and should have used its sua sponte power to reopen his proceedings. On appeal, the United States Court of Appeals for the Fourth Circuit held that the Board did not abuse its discretion. It also found that it lacked jurisdiction to review Mr. Nken’s claim that the Board failed to use its sua sponte power in order to reopen his case. Thereafter, the Supreme Court granted Mr. Nken’s motion for a stay of his removal until further proceeding by the Court.


Is the decision of a court of appeals to stay an alien’s removal pending consideration of the alien’s petition for review governed by the standard set forth in section 242(g)(2) of the Immigration and Nationality Act, 8 U.S.C. Section 1252(f)(2), or instead is it governed by the traditional test?

Media for Nken v. Holder

Audio Transcription for Oral Argument – January 21, 2009 in Nken v. Holder

Audio Transcription for Opinion Announcement – April 22, 2009 in Nken v. Holder

John G. Roberts, Jr.:

I have the opinion of the Court this morning in Nken versus Holder.

The Government may order that aliens who are here illegally be removed from the country.

There is a procedure that the Government has to go through before doing so.

That procedure provides the alien with certain legal protections.

An alien, who loses a challenge to the procedures in his case and still subject to an order of removal, can appeal to a Federal Court of Appeals and many do.

But the order directing that the alien be removed is not automatically held in advance while the appeal is pending.

So that he has not taken out of the country while his appeal is pending, an alien can seek a stay of the removal order, pending decision of his appeal and many do.

The Courts of Appeals that consider whether to grant or deny the stay, requests to hold things up while they’re deciding the underlying challenge, have developed different rules about how to decide them.

The rule should be the same across the country, so we granted review to decide what it should be.

Now, there is a well established general standard for considering stay requests.

That standard ask whether the party seeking the stay is likely to succeed on the merits, whether that party will be irreparably injured if his stay is denied, were there other parties will be injured if a stay is granted and how the public interest would be affected by the Court’s decision.

Now, the issue before us arises because Congress, in 1996, passed a law changing some of the removal rules, among other things, that law provided that no court shall enjoin the removal of any alien, unless the alien shows by clear and convincing evidence that his removal is prohibited as a matter of law.

Now, this is a more difficult standard for the alien to meet.

The court below held that I is more difficult standard applied rather thank the traditional standard.

But the new law does not refer to stays, but rather to authority to enjoin removal and although there is certainly some overlap between stays and injunctions, the two traditionally refer to different forms of relief.

An injunction is a coercive order that directs someone to do something, or a stay operates upon a judicial proceeding by temporarily divesting in order under review of enforceability.

The language instructor of the new statutory provision does not convince us that enjoin in that provision was intended to covers stays.

The authority to stay a case pending appeal is critical to ensure that a court can carefully consider a case before its decision is too late.

We do not think that the standard for injunctions in the new law would meet that need which causes us to doubt that Congress meant to apply the new standard to stays.

For these and other reasons set forth in our opinion, we conclude that the traditional standard is the right one.

But there are good arguments on the other side, and they have been ably said out in the descent filed by Justice Alito.

At the end of the day however, we do not think that the more difficult test for injunctions in the new law sets the standard for stays.

It’s important to recognize however that under the traditional standard, a stay is not a matter of right.

In exercising its discretion, the Court cannot simply assume that removal of the alien is categorically and irreparable harm, but that the balance of hardships always waves in the aliens favor.

An alien, who seeks a stay, bares the burden of establishing that he needs the requirement of the traditional standard before the Court should hold in advance the publics undeniable interest in the prompt execution of removal orders.

The judgment of the Court of Appeals is vacated and the case is remanded for consideration of the can stay application under the standards set forth in our opinion.

Justice Kennedy has filed the concurring opinion joined by Justice Scalia.

Justice Alito has filed a dissenting opinion in which Justice Thomas has joined.