Andreiu v. Ashcroft

Decision Date18 June 2001
Docket NumberNo. 99-70274,99-70274
Citation253 F.3d 477
CourtU.S. Court of Appeals — Ninth Circuit

Linton Joaquin (argued), National Immigration Law Center, Los Angeles, California, for the petitioner.

David M. McConnell (argued) and Linda S. Wernery, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for the respondent.

Nadine K. Wettstein, American Immigration Law Foundation, Washington, D.C., for the amici curiae.

On Petition for Review of an Order of the Board of Immigration Appeals INS No. A71-807-157

Before: Mary M. Schroeder, Chief Judge, and Procter Hug, Jr., Harry Pregerson, Stephen Reinhardt, Robert R. Beezer, Ferdinand F. Fernandez, Pamela Ann Rymer, Michael Daly Hawkins, A. Wallace Tashima, Ronald M. Gould, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Hawkins; Concurrence by Judge Beezer

Hawkins, Circuit Judge

This case requires us to consider the application of certain 1996 amendments to the nation's immigration laws to an alien's motion for stay of removal proceedings pending the resolution of a petition for review. The Immigration and Naturalization Service ("INS") contends that 8 U.S.C. §§ 1252(f)(2) permits a stay only when the alien shows by clear and convincing evidence that the removal order is prohibited as a matter of law. Section 1252(f), however, limits only a court's power to "enjoin the removal of any alien." We conclude, as a matter of statutory construction, that the term"enjoin," in this context, is not equivalent to the term "stay."


Dan Marius Andreiu is a native of Romania. According to his testimony, he was a member of the National Liberal Party, one of the primary political groups responsible for the overthrow of the Ceaucescu regime in Romania's 1989 revolution. On behalf of a group of young intellectuals, he attempted to open a radio station devoted to the views of the National Liberal Party in his hometown of Timisoara. In response to these activities, two individuals attempted to murder Andreiu in August of 1991 by running him over with an Alfa Romeo. The driver of the car was the son of a former Communist official, and the passenger, nicknamed "Tarzan," was an organized crime figure who had ties to the secret police.

Andreiu then fled Romania. He reached Paris, where he sent an insulting postcard to "Tarzan." Andreiu subsequently came to the United States and was admitted on a six-month visa. He overstayed his visa, and he applied for asylum after the INS sent him a notice to appear on charges of remaining in the United States. Andreiu alleged that he feared political persecution in Romania based on the attempt on his life. He claimed that such individuals are still in power in Romania and are in a position to do him serious harm.

An immigration judge denied Andreiu's asylum claim on February 2, 1998, concluding that his testimony was implausible. Andreiu appealed to the Board of Immigration Appeals ("BIA"). The BIA concluded that the immigration judge improperly determined that Andreiu lacked credibility. Andreiu's testimony, the BIA stated, was "internally consistent with his application for asylum." Nevertheless, the BIA affirmed the immigration judge's decision, on the basis that Andreiu had failed to establish a well-founded fear of persecution or a clear probability of persecution. The BIA concluded that Andreiu entered the United States for economic reasons and that conditions in Romania have substantially improved since the incidents Andreiu described. Andreiu was given fifteen days to leave the country voluntarily.

Andreiu then filed a petition for review with this court and requested a stay of his removal. We temporarily stayed Andreiu's removal pursuant to De Leon v. INS, 115 F.3d 643 (9th Cir. 1997). The INS opposed Andreiu's stay request, arguing that under 8 U.S.C. §§ 1252(f)(2) federal courts may only stay an alien's removal if he has shown by clear and convincing evidence that the removal is prohibited as a matter of law. We subsequently appointed pro bono counsel and requested supplemental briefing on the applicability of §§ 1252(f)(2) to stays of removal pending a petition for review.

On September 8, 2000, the three-judge panel agreed with the INS's interpretation of the statute and denied Andreiu's motion for stay. Andreiu v. Reno, 223 F.3d 1111 (9th Cir. 2000). Judge Thomas dissented, arguing that the majority disposition was "at odds with the plain language of 8 U.S.C. §§ 1252(f), the structure of §§ 1252 as a whole and asylum theory." Id. at 1119 (Thomas, J., dissenting). We subsequently granted en banc review. Andreiu v. Reno, 237 F.3d 1168 (9th Cir. 2000).

We now conclude that §§ 1252(f)(2) does not limit the power of federal courts to grant a stay of removal. On the merits, however, we conclude that Andreiu does not satisfy the traditional requirements for a stay set forth in Abbassi v. INS, 143 F.3d 513 (9th Cir. 1998).


In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996), which significantly revised portions of the Immigration and Nationality Act. Prior to passage of IIRIRA, an alien who appealed a decision of the BIA to a United States Court of Appeals was automatically entitled to a stay of removal, unless the court directed otherwise. See 8 U.S.C. §§ 1105a(a)(3) (1994), repealed by 8 U.S.C. §§ 1252(b)(3)(B). IIRIRA eliminated the automatic stay provision. The current law states, "Service of the petition on the officer or employee does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise." 8 U.S.C. §§ 1252(b)(3)(B).

This provision establishes that courts retain the power to stay an alien's removal pending a petition for review. The provision, however, does not specify what standards are applicable to an alien's motion for stay.

Andreiu contends that the applicable standard is the one we have traditionally employed for discretionary stays of removal. In Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998), we explained that "[w]e evaluate stay requests under the same standards employed by district courts in evaluating motions for preliminary injunctive relief." That is, the 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." Id.

The INS contends, however, that Abbassi only interpreted IIRIRA's transitional rules, and that a different result obtains under the permanent rules. According to the INS, a court's decision to grant a motion for stay is governed by §§ 1252(f)(2). This section states:

Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such an order is prohibited as a matter of law.

8 U.S.C. §§ 1252(f)(2). Thus, the core issue is whether the term "enjoin" in this provision encompasses stay orders. We conclude that it does not.

A. The Text and Structure of the Statute

Our analysis is governed by fundamental principles of statutory construction. A basic guide to the meaning of statutory language is the context of the statute as a whole. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." INS v. Cordoza-Fonseca, 480 U.S. 421, 432 (1987) (quotations and citations omitted). Similarly, "[s]tatutes must be interpreted, if possible, to give each word some operative effect." Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 209 (1997).

The provision immediately preceding §§ 1252(f)(2) states that no court other than the Supreme Court"shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of this subchapter . . . ." 8 U.S.C. §§ 1252(f)(1) (emphasis added). It is clear from this language that Congress did not view the terms "enjoin" and "restrain" as synonymous. If Congress had intended the term "enjoin " to cover the entire universe of judicial power over immigration proceedings, there would have been no need to include the phrase "or restrain." Under the INS's interpretation, this second term is reduced to mere surplusage. If "restrain" has any operative meaning, as we must presume it does, Congress's omission of this term from §§ 1252(f)(2) must be significant. The only construction that saves §§ 1252(f)(1) from surplusage is that "enjoin" refers only to the class of actions properly defined as injunctions, not to the full range of judicial action.

Section 1252(b)(3)(B), the only provision in the statute containing the term "stay," confirms this reading. This section states, "Service of the petition on the officer does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise." Here, Congress used the specific term "stay" to describe a hold on deportation pending a decision on a petition for review. Yet Congress did not use the term "stay" in §§ 1252(f), although it could have easily done so. Just as Congress added the term"restrain" to §§ 1252(f)(1), it could have written §§ 1252(f)(2) to limit courts' power to "enjoin or stay" the deportation of an alien. But it did not do so, and we will not lightly conclude that this omission was an oversight.

Moreover, if Congress had intended to limit courts' power to stay deportation proceedings pending petitions for review, the most logical place to include that provision...

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