Dorelien v. U.S. Atty. Gen.

• Decision Date: 13 January 2003
• Docket Number: No. 02-13587.,02-13587.
• Citation: 317 F.3d 1314
• Parties: Carl DORELIEN, Petitioner, v. U.S. ATTORNEY GENERAL, John Ashcroft, Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

317 F.3d 1314

Carl DORELIEN, Petitioner, v. U.S. ATTORNEY GENERAL, John Ashcroft, Immigration and Naturalization Service, Respondents.

No. 02-13587.

United States Court of Appeals, Eleventh Circuit.

January 13, 2003.

Jeffrey A. Devore, Law Offices of Jeffrey A. Devore, P.A., West Palm Beach, FL, for Petitioner.

Michael P. Lindemann, Donald E. Ginsberg, U.S. Dept. of Justice/Office of Immigration Litigation, David V. Bernal, Barry J. Pettinato, Civ. Div., Washington, DC, for Respondents.

Petition for Review of a Final Order of the Board of Immigration Appeals (INS No. A75-342-408).

(Order July 26, 2002, 11th Cir.)

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.

BY THE COURT:

The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), hearing En Banc is DENIED.

HULL, Circuit Judge, specially concurring in the denial of rehearing en banc:

In this immigration appeal, Dorelien has filed a petition for review of the BIA's final removal order. During the briefing stage, a motions panel of this Court denied Dorelien's motion for a stay of that removal order. The en banc Court has declined to rehear that denial; I concur for these reasons.

I. TRADITIONAL INJUNCTIVE RELIEF

Even under the traditional injunctive relief standard for which the dissent advocates, Dorelien has not shown a substantial likelihood of success on his claim for discretionary relief.¹ In his petition for review in this Court, Dorelien does not challenge his removability based on overstaying his visa. Instead, Dorelien claims that the IJ and BIA erred in denying him discretionary relief from removal under the Convention Against Torture ("CAT").² Based on extensive evidence, the IJ found, inter alia, that Dorelien "ha[d] failed to demonstrate that it is more likely than not that he would be subjected to torture if removed to Haiti." The BIA affirmed.

The motions panel properly denied Dorelien's motion to stop the INS from removing him because Dorelien has not shown any likelihood of success in overturning the IJ's fact findings or denial of wholly discretionary relief, both of which the BIA affirmed. Dorelien fails to satisfy both the pre-IIRIRA traditional standard for injunctive relief and IIRIRA's "clear and convincing evidence" standard.

As the IJ found, Dorelien lived in Haiti from birth in 1949 until 1995. He was a military leader from 1991 until 1994 during the Cedras military regime.³ Due to his involvement in a massacre during that regime, Dorelien was convicted of mass murder, albeit in absentia. After the democratically elected President Aristide returned and the military was dismantled in 1994, Dorelien's wife and child remained in Haiti for some time and never were harmed, arrested, or mistreated by the Aristide government. Dorelien, a college-educated engineer, still owns a residence in Haiti and a share in a private engineering firm in Haiti; his wife still owns a day care center in Haiti. Dorelien's motion for a stay based on his torture claim under CAT does not satisfy even the traditional injunctive relief standard that applied pre-IIRIRA.

II. REMOVAL PARADIGM SHIFT UNDER IIRIRA

Dorelien's motion likewise fails to meet IIRIRA's new "clear and convincing evidence" standard for injunctive relief. 8 U.S.C. § 1252(f)(2). Before discussing the dissent, it is important to outline IIRIRA's sweeping changes to immigration law and removal in particular.

IIRIRA embodies a paradigm shift in how aliens, like Dorelien, are removed. IIRIRA (a) repeals the automatic stay previously effective upon the mere filing of a petition for review in this Court; (b) entitles the INS to execute immediately the BIA's final removal order notwithstanding any appeal to this Court; and (c) most importantly, permits aliens to continue their appeals from abroad. See 8 U.S.C. § 1252, et seq.⁴ As a result, the BIA's removal order against Dorelien is now a final judgment, which the INS has a right to execute immediately.

Under IIRIRA, removal now occurs after the BIA level of appellate review, and the alien continues his second level of appeal from abroad. In fact, under IIRIRA, many aliens no longer have a second level of appeal before this Court. See, e.g., Balogun v. U.S. Atty. Gen., 304 F.3d 1303 1307 (11th Cir.2002) (IIRIRA "eliminated [this Court's] jurisdiction to review any final order of removal against any alien who is removable by reason of a conviction for certain criminal offenses.") (quotation and citation omitted); Moore v. Ashcroft, 251 F.3d 919, 923 n. 5 (11th Cir.2001) (Under IIRIRA, this Court's "jurisdiction to review denials of discretionary relief is... limited.").

IIRIRA instituted these structural changes to rectify inordinate delays in removals.⁵ Thus, removal after a final BIA removal order (i.e., one level of appeal) is the permitted norm. Indeed, Dorelien is uniquely situated to continue his second level of appeal from Haiti. Dorelien is not just a convicted mass murderer, but a fairly well-off one. He won the Florida Lottery in 1997, receiving $3.1 million to be paid in 20 annual installments of $159,000. Dorelien is represented by counsel and clearly has resources to continue his petition for review in this Court of his wholly discretionary claim after the INS removes him to Haiti.

III. ENJOINING INS REMOVAL AFTER BIA AFFIRMANCE

In light of IIRIRA's changes, when an alien asks this Court to stop INS removal after the BIA's final removal order, that alien necessarily is seeking injunctive relief from a court. Whether an individual alien's motion is couched as a motion for "a stay" or "an injunction" of the BIA's final removal order, this Court in granting relief is preventing the INS's right to remove the alien and, in effect, enjoining INS action.⁶ Thus, IIRIRA expressly prescribes 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. § 1252(f)(2). An alien may couch his motion as a "motion for stay" of the BIA's final order to avoid this tougher IIRIRA standard. Nonetheless, an alien's post-IIRIRA motion for a stay of a final and immediately executable BIA removal order is effectively, and necessarily, seeking injunctive relief from this Court. Section 1252(f)(2) addresses the relief granted by a court, not the relief requested by an alien.

The dissent laments that "[a]pplying a heightened burden of proof" to a stay motion before a merits determination by this Court on an individual alien's petition for review requires this Court to have "full-scale briefing at the beginning of the appellate process before the petitioner has even received a copy of the administrative record." See infra at 1325; see also Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir.2001) (en banc). Similarly, the Ninth Circuit in Andreiu characterized the results that the adoption of a "clear and convincing evidence" standard would have as "absurd," postulating that adoption of such a standard would "effectively require the automatic deportation of large numbers of people with meritorious claims." Andreiu, 253 F.3d at 482. These are understandable, sympathetic arguments.

The problem, however, is that those arguments ignore Congress's policy choice to eliminate delays by (1) implementing INS removal after the first level of appeal before the BIA and (2) allowing the alien to continue his second round of appeal from abroad. While the dissent and the Ninth Circuit are free to take umbrage with policy choices enacted by Congress, unless such congressional action runs afoul of the Constitution, courts cannot, and must not, engage in strained interpretations of statutes to circumvent a congressional choice with which they disagree.⁷ A court's "function is to apply statutes, to carry out the expression of the legislative will that is embodied in them, not to `improve' statutes by altering them." Wright v. Sec'y for the Dep't of Corrs., 278 F.3d 1245, 1255 (11th Cir.2002) (citing Badaracco v. Comm'r of Internal Revenue, 464 U.S. 386, 398, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984) ("Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement.")).

IV. STATUTORY ANALYSIS

In arguing against a heightened standard to stop removal after the first level of appeal before the BIA, the dissent disregards the plain meaning of "enjoin" and engages in a complicated statutory analysis to conclude that "enjoin" in § 1252(f)(2) does not encompass "a stay."⁸ As outlined in Weng v. U.S. Attorney General, this Court correctly concluded that "the plain language of `enjoin[ing]' removal of an alien ... encompasses the act of staying of removal." 287 F.3d 1335, 1337-38 (11th Cir.2002) (alteration in original). The dissent's attacks on Weng's conclusion lack merit for numerous reasons.

First, the dissent's analysis is internally inconsistent. It posits that "enjoin" in § 1252(f)(2) does not encompass "a stay" of removal under IIRIRA but then argues that the traditional injunctive relief standard applies to Dorelien's motion for a stay. This advocacy for the traditional injunctive relief standard actually underscores (a) how commonly pre-IIRIRA motions for stays of removal were construed and treated as motions for preliminary injunctions⁹ and (b) why "to enjoin" plainly encompasses the relief whereby a court stops INS removal, even if a court or a movant seeks to avoid § 1252(f)(2) by using the term stay.

Second, the dissent argues that "enjoining" removal does not encompass "staying" removal because a stay is only "temporary" and "inherently ephemeral." Preliminary...