Andreiu v. Reno, Attorney General

• Decision Date: 23 February 2000
• Docket Number: No. 99-70274,99-70274
• Citation: 223 F.3d 1111
• Parties: (9th Cir. 2000) DAN MARIUS ANDREIU, Petitioner, v. JANET RENO, Attorney General, Respondent. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1111

223 F.3d 1111 (9th Cir. 2000)

DAN MARIUS ANDREIU, Petitioner, v. JANET RENO, Attorney General, Respondent.

No. 99-70274

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted February 23, 2000^*--San Francisco, California

Filed September 8, 2000

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

Mark C. Walters, Department of Justice, Washington, D.C., for the respondent.

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

Before: Robert R. Beezer, Diarmuid F. O'Scannlain and Sidney R. Thomas, Circuit Judges.

BEEZER, Circuit Judge:

Dan Marius Andreiu moves for a stay of the Board of Immigration Appeal's ("BIA") final order of removal, pending our resolution of his petition for review. The government opposes the motion because Andreiu is unable to satisfy the standard for enjoining an alien's removal under 8 U.S.C. S 1252(f)(2) (Supp. II 1996). Andreiu argues that section 1252(f)(2) does not apply to temporary stays. A motions panel of this court requested supplemental memoranda on "the applicability, if any, of 8 U.S.C. [S] 1252(f) to petitioner's motion for a stay of removal." We have jurisdiction pursuant to 8 U.S.C. S 1252, and we hold that section 1252(f)(2) applies to temporary stays.

I

Andreiu is a native of Romania, where he was a member of the National Liberation Party. During the revolution that began in 1989, Andreiu tried to open a radio station that would broadcast the party's views. Andreiu testified that, as a result of his political activity, a group allied with the government threatened to kill him and tried to hit him with an automobile.

Andreiu escaped to Paris, where he sent an insulting postcard to the person that he believed tried to murder him. After obtaining French, German and Austrian visas, Andreiu immigrated to the United States in 1991. On September 10, 1997, the Immigration and Naturalization Service ("INS") sent Andreiu a "Notice to Appear" to answer the charge of remaining in the United States longer than permitted. See 8 U.S.C. S 1227(a)(1)(B) (Supp. II 1996). Andreiu subsequently applied for asylum.

On February 2, 1998, an immigration judge denied the asylum claim because Andreiu's testimony was not credible. The credibility determination was based on the immigration judge's conclusion that Andreiu's description of events was implausible. Although the BIA found that Andreiu's testimony was consistent and reversed the negative credibility determination, it affirmed the denial of asylum on February 26, 1999. The BIA concluded that Andreiu failed to establish a well-founded fear of persecution, or a clear probability of persecution, because he did not produce documentary evidence that he was a member of the National Liberation Party or that people associated with the Romanian government threatened to kill him. Because the evidence did not establish an objectively reasonable fear of persecution, and because the State Department cited Romania as a constitutional democracy that respects human rights, the BIA decided that asylum was inappropriate.

Andreiu filed a petition for review with this court and requested a stay of his removal. In the motion for a stay, Andreiu argued that he was detained by the INS during the proceedings before the immigration judge and was prevented from obtaining documentary evidence. Andreiu asserted also that the BIA's requirement that he produce evidence to support his credible testimony is contrary to the rule that objective evidence of a well-founded fear of persecution "may be satisfied by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant." Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995) (internal quotation marks omitted).

On March 15, 1999, we temporarily stayed Andreiu's removal pursuant to De Leon v. INS, 115 F.3d 643 (9th Cir. 1997). We subsequently appointed pro bono counsel and requested additional briefing on section 1252(f)(2)'s applicability to a stay of removal pending resolution of a petition for review.

II

Prior to the September 30, 1996 enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), stays of removal were generally automatic. See 8 U.S.C. S 1105a(a)(3) (1994) ("The service of the petition for review . . . shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs or unless the alien is convicted of an aggravated felony . . . ."), repealed by 8 U.S.C. S 1252(b)(3)(B). The grant of automatic stays ended with the passage of IIRIRA, which "dramatically altered this court's jurisdiction to review final deportation and exclusion orders. " Kalaw v. INS, 133 F.3d 1147, 1149 (9th Cir. 1997).

The new standards of review became effective on April 1, 1997. See Pub. L. 104-208, S 309(a), 110 Stat. 3009-625; Kalaw, 133 F.3d at 1149-50. IIRIRA, however, applied special "transitional rules" to "cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997." Kalaw, 133 F.3d at 1150; see Pub. L. 104-208, S 309(c), 110 Stat. 3009-625 to -627. Under the transitional rules, aliens encountered IIRIRA's elimination of the automatic stay: "Service of the petition [for review of an order of removal] .. . 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. S 1252(b)(3)(B); see Pub. L. 104-208,S 309(c)(4)(F), 110 Stat. 3009-626 (applying discretionary stay to transitional cases).

Pursuant to our discretion under the transitional rules, we held that "[t]he filing of a motion for a stay or a request for a stay contained in a petition for review will stay a petitioner's deportation temporarily until the court rules on the stay motion." De Leon, 115 F.3d at 644. When reviewing the merits of a discretionary stay request, we required the petitioner to "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." Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998) (applying preliminary injunction standard).

Because Andreiu's removal proceedings began after April 1, 1997, the transitional rules do not apply to his stay request. See Pub. L. 104-208, S 309(c)(4), 110 Stat. 3009-626; Kalaw, 133 F.3d at 1150. We must therefore determine the standard under which IIRIRA's permanent rules allow us to grant a stay of removal.

III

The government argues that IIRIRA changed the standard for granting stays, and now requires that "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 order is prohibited as a matter of law." 8 U.S.C. S 1252(f)(2). Andreiu contends that section 1252(f)(2) does not apply to stay requests because it addresses only actions collateral to the petition for review process, and that we should review his motion under the traditional discretionary stay test, see Abbassi, 143 F.3d at 514.

To determine whether section 1252(f)(2) applies to stays, "we must first look to the statutory language:`The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter.' " United States v. Morales-Alejo, 193 F.3d 1102, 1105 (9th Cir. 1999) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (internal citations and quotations omitted)). In interpreting the statute, we are mindful of "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien." INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987). Similarly, "we should not construe a statute to displace courts' traditional equitable authority absent the `clearest command,' or an `inescapable inference' to the contrary." Miller v. French, U.S., 120 S.Ct. 2246, 2254-55, 147 L.Ed.2d 326 (U.S. June 19, 2000) (internal citations omitted).

Section 1252(f)(2) limits a court's power to "enjoin the removal of any alien." At issue is whether section 1252(f)(2)'s use of the word "enjoin" encompasses the temporary stay of an alien's removal. We hold that it does.

"Enjoin" is defined as: "To legally prohibit or restrain by injunction." Black's Law Dictionary 550 (7th ed. 1999); see also id. 788 (defining "injunction" as"[a] court order commanding or preventing an action"). "Stay " is "[t]he postponement or halting of a proceeding, judgment, or the like." Id. 1425. These definitions show that the plain meaning of "enjoin" includes the grant of a "stay."

The common use of "enjoin" and "stay" also demonstrate that they are not mutually exclusive. Courts often use these terms interchangeably or to indicate that "enjoin" encompasses "stay." See, e.g., NLRB v. Nash-Finch Co., 404 U.S. 138, 139-41, 144 (1971) (holding that the NLRB's attempt to "enjoin" or "restrain" a state court injunction fell under the exception of 28 U.S.C. S 2283: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by .. . Congress . . . .") (emphasis added); Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, 1087 (9th Cir. 2000) (en banc) (holding that "Congress did not intend the[bankruptcy] stay to enjoin all state criminal proceedings automatically") (emphasis added); Pacific Reinsurance Management Corp. v. Ohio Reinsurance Corp., 935 F.2d 1019, 1022 (9th Cir. 1991) (applying statute that proscribes appeals from an interlocutory order "refusing to enjoin an arbitration " to an appeal from a court's "denial of a stay of arbitration") (emphasis added). Motions for a...