Mohammed v. Reno

Decision Date24 October 2002
Docket NumberDocket No. 02-2443.
PartiesHaniff MOHAMMED, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States; Doris Meissner, Commissioner, Immigration and Naturalization Service; Edward McElroy, New York District Director, Immigration and Naturalization Service, United States Department of Justice; Timothy Murray, Warden of Groveland Correctional Facility; James Walsh, Warden of the Ulster Correctional Facility, Respondents-Appellees.
CourtU.S. Court of Appeals — Second Circuit

David A. Yocis, Dewey Ballentine LLP, Washington, D.C., for Petitioner-Appellant.

Scott Dunn, Asst. U.S. Atty., Brooklyn, N.Y., for Respondents-Appellees.

Before: WALKER, Chief Judge, NEWMAN, and F.I. PARKER, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This motion by the Government to vacate a stay of removal (formerly called "deportation") following the denial of a petition for a writ of habeas corpus raises issues concerning (1) the standard to be applied by the District Court in issuing a stay of removal, (2) the standard to be applied by this Court in staying a trial court's ruling pending appeal, and, (3) with respect to the merits, the continued validity, in light of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), of our decision in Domond v. INS, 244 F.3d 81 (2d Cir.2001). Domond held that an alien, subject to removal because of a felony committed prior to the effective dates of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996), but convicted after those dates was ineligible for discretionary relief pursuant to former section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (repealed) (1994). The issues arise from a ruling of the District Court for the Eastern District of New York (John Gleeson, District Judge), entered May 18, 2002, continuing a stay of removal after denial of a habeas corpus petition filed by Haniff Mohammed.

We conclude, contrary to the Government's position, that the heightened standard for a stay of deportation, imposed by section 242(f) of the INA, 8 U.S.C. § 1252(f) (2000), is inapplicable to Mohammed's case because he is seeking a temporary stay pending appeal and not an injunction to prevent the operation of provisions of the INA concerning exclusion or removal. We also conclude, however, that, under the normal standards for a stay pending appeal, he has not shown the requisite likelihood of success to warrant temporary appellate relief. We will therefore vacate the District Court's stay, thereby denying a stay pending appeal, but will stay our order for 30 days to afford Mohammed an opportunity to seek a stay of removal from the Supreme Court.


Mohammed, who was born in Trinidad but became a lawful permanent resident of the United States in 1990, committed the state law offense of criminal possession of stolen property in the fourth degree (a Class E felony) in March 1996 and was found guilty in a New York state court in September 1997. In October 1997, he was sentenced to a term of two to four years.1 An immigration judge ordered his removal for commission of an aggravated felony and denied Mohammed's request for discretionary relief pursuant to former section 212(c) because that provision had been repealed by AEDPA. The Board of Immigration Appeals affirmed both rulings.

Mohammed filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, contending that he was entitled to be considered for discretionary relief under section 212(c) of the INA, as that provision existed at the time of his crime. The District Court stayed removal, without objection by the Government, pending disposition of the habeas petition. The District Court denied the petition by a judgment entered May 18, 2002, but continued the stay "unless it is lifted by the court of appeals." Mohammed v. Reno, 205 F.Supp.2d 39, 48 (E.D.N.Y.2002). Judge Gleeson concluded that he was bound by our decision in Domond, but then, in a thoughtful, provocative, but entirely respectful opinion, explained why he believed that Domond was incorrectly decided in light of the Supreme Court's earlier decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), decided seven years before Domond, and the Court's later decision in St. Cyr, decided three months after Domond. On August 1, 2002, the Government filed a motion in this Court to lift the stay of removal.2

I. Jurisdiction to Stay Removal Pending Appeal

The Government initially challenges the District Court's continuation of the stay on the ground that a strict standard for issuing such a stay is prescribed by section 242(f) of the INA, 8 U.S.C. § 1252(f), and that the standard has not been met in this case. Section 242(f) provides:

Limit on injunctive relief

(1) In general

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,3 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) Particular cases

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.

8 U.S.C. § 1252(f) (emphasis added).

Mohammed disputes the applicability of section 242(f) to a stay pending appeal of the denial of a habeas petition. He contends that the limitation in subsection 242(f)(2) on a court's authority to "enjoin" the removal of an alien does not apply to a stay pending appeal. He also contends that reading subsections 242(f)(1) and 242(f)(2) together indicates that the "clear and convincing evidence" standard of the latter subdivision applies only to a court enjoining removal procedures, and not to a court ruling only on the merits of an individual alien's case.

Two circuits have ruled that section 242(f) does not apply to a court's consideration of a stay pending appeal. Maharaj v. Ashcroft, 295 F.3d 963, 964-66 (9th Cir. 2002) (stay pending appeal of denial of habeas petition); Bejjani v. INS, 271 F.3d 670, 687-89 (6th Cir.2001) (stay pending petition to review INS decision to reinstate order of removal); Andreiu v. Ashcroft, 253 F.3d 477, 479-83 (9th Cir.2001) (stay pending petition to review INS decision denying asylum claim). The Eleventh Circuit has ruled to the contrary, Weng v. U.S. Attorney General, 287 F.3d 1335, 1337-40 (11th Cir.2002), although two judges of that Court subsequently expressed disagreement with Weng and urged its reconsideration in banc, Bonhomme-Ardouin v. U.S. Attorney General, 291 F.3d 1289, 1290-91 (11th Cir.2002) (Barkett, J., with whom Wilson, J., joins, concurring).

We agree with the Ninth and Sixth Circuits for all of the reasons explained in the Ninth Circuit's in banc decision in Andreiu. First, the use of "enjoin" in subsection 242(f)(2) contrasts with the wording "enjoin or restrain" in subsection 242(f)(1), suggesting that "enjoin" in (f)(2) applies to a permanent prohibition and that "enjoin or restrain" applies to both a permanent and an interim prohibition. Even though, as Weng points out, courts have often used "enjoin" and "restrain" interchangeably, when Congress pointedly uses both words in one subsection and then uses only the term "enjoin" in an adjacent subsection, there is an implication that "restrain" is used in (f)(1) to refer to an interim prohibition, and that the omission of "restrain" in (f)(2) therefore makes this subsection inapplicable to such a prohibition. Reading the coverage of both subsections to be identical renders "restrain" in (f)(1) surplusage.4 See Andreiu, 253 F.3d at 480.

Moreover, when Congress wished to legislate concerning a stay pending appeal, it explicitly used the word "stay." See 8 U.S.C. § 1252(b)(3)(B) (service of petition for review does not "stay" removal pending court's decision unless court so orders). If Congress wanted to apply a heightened standard to a stay pending appeal, it would likely have used the word "stay" in subsection 242(f)(2) instead of "enjoin"; indeed, it would likely have included such a standard in section 242(b). See Andreiu, 253 F.3d at 480-81.

In addition, subsection (f)(1) provides that a court has jurisdiction to prohibit "the operation of the provisions of part IV of this subchapter" only "with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated." The companion subsection (f)(2) is sensibly understood to mean that it is in such cases that the heightened standard of review is required. "The clear concern of [section 242(f)] is limiting the power of courts to enjoin the operation of the immigration laws, not with stays of removal [pending appeal] in individual asylum cases."5 Andreiu, 253 F.3d at 481. The same reasoning applies to stays pending appeal in individual habeas cases.

Finally, reading subsection (f)(2) to apply to stays pending appeal in individual cases beyond those that seek to enjoin the operation of the immigration laws would lead to the anomalous result that, in cases like the pending one, an alien would have to make a more persuasive showing to obtain a stay than is required to prevail on the merits, thereby permitting the removal of some aliens with meritorious claims against removal. See Andreiu, 253 F.3d...

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