Hor v. Gonzales, No. 04-1964.
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Writing for the Court | Easterbrook |
| Citation | 400 F.3d 482 |
| Decision Date | 02 March 2005 |
| Docket Number | No. 04-1964. |
| Parties | Abdelhadi HOR, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent. |
Page 482
v.
Alberto R. GONZALES, Attorney General of the United States, Respondent.
Enrique Perez (submitted), Sonnenschein, Nath & Rosenthal, Chicago, IL, for Petitioner.
Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Larry P. Cote, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge.
An immigration judge ordered Abdelhadi Hor removed to Algeria. After the Board of Immigration Appeals agreed with that conclusion, Hor filed a petition for judicial review and asked for a stay of removal pending this court's final disposition. The Attorney General contends that we cannot issue such a stay, even if the immigration judge or the Board made a serious error of fact or took an illogical
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legal turn. Instead, the Attorney General insists, we may grant interim relief only if "the alien shows by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law." 8 U.S.C. § 1252(f)(2). As a practical matter, removal is "prohibited by law" only when the person is a citizen of the United States or holds a visa of unquestioned validity. A diplomat, or an alien who prevailed before the Board but was threatened by a rogue subordinate who refused to acknowledge the Board's authority, might be able to show that removal is "prohibited by law." But an alien such as Hor who contends only that the immigration judge's conclusion is unsupported by substantial evidence will be unable to demonstrate "by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law" and thus would have no hope of a stay if § 1252(f)(2) applies to requests for stays. One court of appeals holds that it does. Weng v. Attorney General, 287 F.3d 1335 (11th Cir.2002). Five hold that it does not. Arevalo v. Ashcroft, 344 F.3d 1, 6-9 (1st Cir.2003); Mohammed v. Reno, 309 F.3d 95, 98-100 (2d Cir.2002); Douglas v. Ashcroft, 374 F.3d 230, 233-34 (3d Cir.2004); Bejjani v. INS, 271 F.3d 670, 688-89 (6th Cir.2001); Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir.2001) (en banc). We have yet to consider this question and must choose sides.
Subsection (f), captioned "Limit on injunctive relief", reads:
(1) Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
(2) 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 order is prohibited as a matter of law.
Like the Norris-LaGuardia Act, this enactment curtails resort to a particular remedy — the injunction. Subsection (f)(1) forbids injunctive class actions, and subsection (f)(2) sets a high standard for injunctive relief at retail. This makes a good deal of sense as long as removal orders may be reviewed in other ways. Section 1252(c)-(e) authorizes this court to review orders rejecting claims of the kind that Hor has made. And INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), holds that the writ of habeas corpus is available in exceptional circumstances. If a court of appeals concludes that a particular removal order is proper, there will be scant justification for injunction; if the alien fails to file a timely petition for review, an injunction designed to overcome that omission is not justifiable; if Congress has forbidden judicial review in the court of appeals (as it has with respect to criminal aliens and some discretionary remedies), an injunction would require extraordinary justification.
This understanding supposes, however, that the Board's order of removal is subject to effective review. Before 1996, when the Illegal Immigration Reform and Immigrant Responsibility Act revamped the process, a stay of removal (then called deportation) pending judicial review was automatic. The IIRIRA flipped the presumption and made a stay the exception rather than the rule: "Service of the petition . . .
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does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise." 8...
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In re A-B, Interim Decision #3929
...something a government does," either directly or indirectly by being unwilling or unable to prevent private misconduct. Hor v. Gonzales, 400 F.3d 482, 485 (7th Cir. 2005) (emphasis in original). Persecution under the asylum statute "does not encompass all treatment that our society regards ......
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Nken v. Holder, No. 08–681.
...F.3d 230 (C.A.3 2004), Tesfamichael v. Gonzales, 411 F.3d 169 (C.A.5 2005), Bejjani v. INS, 271 F.3d 670 (C.A.6 2001), Hor v. Gonzales, 400 F.3d 482 (C.A.7 2005), and Andreiu v. Ashcroft, 253 F.3d 477 (C.A.9 2001) (en banc). We granted certiorari, and stayed petitioner's removal pending fur......
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Nken v. Holder, No. 08–681.
...F.3d 230 (C.A.3 2004), Tesfamichael v. Gonzales, 411 F.3d 169 (C.A.5 2005), Bejjani v. INS, 271 F.3d 670 (C.A.6 2001), Hor v. Gonzales, 400 F.3d 482 (C.A.7 2005), and Andreiu v. Ashcroft, 253 F.3d 477 (C.A.9 2001) (en banc). We granted certiorari, and stayed petitioner's removal pending fur......
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Nken v. Holder, No. 08–681.
...F.3d 230 (C.A.3 2004), Tesfamichael v. Gonzales, 411 F.3d 169 (C.A.5 2005), Bejjani v. INS, 271 F.3d 670 (C.A.6 2001), Hor v. Gonzales, 400 F.3d 482 (C.A.7 2005), and Andreiu v. Ashcroft, 253 F.3d 477 (C.A.9 2001) (en banc). We granted certiorari, and stayed petitioner's removal pending fur......
-
In re A-B, Interim Decision #3929
...something a government does," either directly or indirectly by being unwilling or unable to prevent private misconduct. Hor v. Gonzales, 400 F.3d 482, 485 (7th Cir. 2005) (emphasis in original). Persecution under the asylum statute "does not encompass all treatment that our society regards ......
-
Nken v. Holder, No. 08–681.
...F.3d 230 (C.A.3 2004), Tesfamichael v. Gonzales, 411 F.3d 169 (C.A.5 2005), Bejjani v. INS, 271 F.3d 670 (C.A.6 2001), Hor v. Gonzales, 400 F.3d 482 (C.A.7 2005), and Andreiu v. Ashcroft, 253 F.3d 477 (C.A.9 2001) (en banc). We granted certiorari, and stayed petitioner's removal pending fur......
-
Nken v. Holder, No. 08–681.
...F.3d 230 (C.A.3 2004), Tesfamichael v. Gonzales, 411 F.3d 169 (C.A.5 2005), Bejjani v. INS, 271 F.3d 670 (C.A.6 2001), Hor v. Gonzales, 400 F.3d 482 (C.A.7 2005), and Andreiu v. Ashcroft, 253 F.3d 477 (C.A.9 2001) (en banc). We granted certiorari, and stayed petitioner's removal pending fur......
-
Nken v. Holder, No. 08–681.
...F.3d 230 (C.A.3 2004), Tesfamichael v. Gonzales, 411 F.3d 169 (C.A.5 2005), Bejjani v. INS, 271 F.3d 670 (C.A.6 2001), Hor v. Gonzales, 400 F.3d 482 (C.A.7 2005), and Andreiu v. Ashcroft, 253 F.3d 477 (C.A.9 2001) (en banc). We granted certiorari, and stayed petitioner's removal pending fur......