Weng v. U.S. Atty. Gen.

• Decision Date: 10 April 2002
• Docket Number: No. 01-17214.,01-17214.
• Parties: Bin WENG, Petitioner, v. U.S. ATTORNEY GENERAL, Immigration & Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

287 F.3d 1335

Bin WENG, Petitioner, v. U.S. ATTORNEY GENERAL, Immigration & Naturalization Service, Respondents.

No. 01-17214.

United States Court of Appeals, Eleventh Circuit.

April 10, 2002.

Ernesto H. Molina, Nelda C. Reyna, David V. Bernal, Dept. of Justice (OIL), Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before TJOFLAT, CARNES and HULL, Circuit Judges.

BY THE COURT:

Petitioner Bin Weng has filed a petition for review of the BIA's final order of removal. He now moves this Court to stay his removal during our appellate review. Weng's motion for a stay is denied because he has not satisfied the new "clear and convincing" standard for enjoining an alien's removal under IIRIRA. See 8 U.S.C. § 1252(f)(2).

I. BACKGROUND

Weng is a native and citizen of China. On April 17, 2001, he arrived at Hartsfield Atlanta International Airport without any travel or entry documents. He provided a statement to officers of Respondent Immigration and Naturalization Service ("INS") that he feared persecution if returned to China. On April 24, 2001, the INS began proceedings to remove Weng from the United States by issuing a Notice to Appear, which charged him with being inadmissable due to a lack of required travel and entry documents. See 8 U.S.C. § 1182(a)(7)(A)(i)(I).

At a hearing before an immigration judge ("IJ"), Weng admitted that he did not have the proper travel and entry documents. After reviewing Weng's statements at his hearing and his formal application for asylum and other relief, the IJ found Weng's claims lacked credibility, denied him asylum, withholding of removal and relief under the Convention Against Torture, and ordered him removed from the United States. On November 27, 2001, the Board of Immigration Appeals ("BIA") concluded that the administrative record supported the IJ's adverse credibility finding and dismissed Weng's appeal.

On December 27, 2001, Weng filed a petition for review with this Court, and moved for a stay of removal pending disposition of his appeal. In supplemental briefing, the INS asserts that Weng has failed to meet his burden for a stay under 8 U.S.C. § 1252(f)(2). We agree.

II. DISCUSSION

A. IIRIRA

This appeal requires us to interpret a portion of the changed landscape of immigration procedure after the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996). Prior to IIRIRA, an alien ordered out of the United States generally received an automatic stay of deportation upon the service of his petition for review. See 8 U.S.C. § 1105a(a)(3) (1994). The issue of a stay pending our review would arise in only limited situations, such as when the alien was being deported because of an aggravated felony conviction. Id. In pre-IIRIRA cases, if aliens were deported, this stripped our jurisdiction to review their petitions. See 8 U.S.C. § 1105a(c) (1994) ("An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.").

IIRIRA, as part of its dramatic alteration of immigration law, eliminated automatic stays. IIRIRA directs that "[s]ervice 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. § 1252(b)(3)(B) (emphasis supplied). Thus, even if a petition for review is filed, IIRIRA permits the INS to remove aliens immediately following a BIA decision, and allows aliens to continue their appeals from abroad. See 8 U.S.C. § 1252(b)(3)(B) (replacing 8 U.S.C. § 1105a(c)); Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir.2001) (finding case not to be moot following removal of an alien based on "[n]oticeabl[e] absen[ce]" in post-IIRIRA immigration law of "any similar language removing federal review jurisdiction in the event an alien departs or is removed"). IIRIRA's permanent rules govern Weng's motion because his removal proceedings began after IIRIRA's effective date of April 1, 1997.

B. "Clear and convincing" standard

Because a petition for review no longer stays removal, aliens such as Weng now have the burden of moving to stay their removal. IIRIRA also provides a more stringent standard for aliens to satisfy before federal courts may enjoin their final removal orders. Specifically, § 1252(f)(1) first directs that courts cannot enjoin at all the operation of certain sections of immigration law. Then § 1252(f)(2) provides they may enjoin an individual alien's final order of removal if the alien shows "by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law," as follows:

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)(2).¹

For several reasons, we conclude that § 1252(f)(2)'s "clear and convincing" standard applies to Weng's motion for a stay of removal pending resolution of his petition for review.² First, the plain language of "enjoin[ing]" removal of an alien in § 1252(f)(2) encompasses the act of staying of removal. "Enjoin" is defined as "[t]o require; command; positively direct. To require a person, by writ of injunction, to perform, or to abstain or desist from, some act." Black's Law Dictionary 529 (6th ed.1990). And "stay" is defined as:

A stopping; the act of arresting a judicial proceeding by the order of a court. Also that which holds, restrains, or supports. A stay is a suspension of the case or some designated proceedings within it. It is a kind of injunction with which a court freezes its proceedings at a particular point. It can be used to stop the prosecution of the action altogether, or to hold up only some phase of it, such as an execution about to be levied on a judgment.

Id. at 1413 (emphasis supplied). Thus, their definitions and common usage show that the plain meaning of enjoin includes the grant of a stay.³ Second, courts have regularly used these terms interchangeably or to indicate the act of enjoining includes the act of staying.⁴

Third, in the limited situations where stays were not automatic in pre-IIRIRA cases, courts would treat aliens' motions for stays of deportation as discretionary motions for injunctive relief. See, for example, Jenkins v. INS, 32 F.3d 11, 14-15 (2d Cir.1994) ("This court will treat an application for a discretionary stay as a request for injunctive relief."), overturned on other grounds, Aguirre v. INS, 79 F.3d 315 (2d Cir.1996); Arthurs v. INS, 959 F.2d 142, 143-44 (9th Cir.1992) (looking to whether "serious legal question" was presented when reviewing motion to stay) (citing Artukovic v. Rison, 784 F.2d 1354 (9th Cir.1986)); Ignacio v. INS, 955 F.2d 295, 299 & n. 5 (5th Cir.1992) (applying "the same four-factor balancing test" to both judicial stay of deportation of alien and request for injunctive relief); Reid v. INS, 766 F.2d 113, 116 n. 9 (3d Cir.1985) (recognizing "the possibility that in extraordinary cases relief in the nature of a stay might be available in the court of appeals pursuant to the All Writs Act"); Zardui-Quintana v. Richard, 768 F.2d 1213, 1215-16 & n. 7 (11th Cir.1985) (observing that request for a judicial stay of deportation in habeas case was akin to and should be treated as a request for injunctive relief).⁵

Congress is presumed to be knowledgeable of this established pattern of interpretation ttreating motions to stay as requests for injunctive relief, and legislated with it as a backdrop when it crafted § 1252(f)(2). See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988). Thus, § 1252(f)(2)'s reference to the power to "enjoin" should be read as encompassing stays of removal as well. And the new "clear and convincing" standard for granting injunctive relief applies to stays.⁶

We reject the contention that because "enjoin and restrain" are used in § 1252(f)(1), therefore the use of only "enjoin" in § 1252(f)(2) is limited to permanent injunctive relief and cannot encompass temporary motions for stays. The basis of this contention is that "enjoin" in § 1252(f)(2) must have this limited meaning or otherwise "restrain" in § 1252(f)(1) is mere surplusage. This contention — that "enjoin" in § 1252(f)(1) is limited to only permanent injunctive relief — is contrary to the plain meaning of "enjoin." Moreover, there is no reference to permanent or temporary relief in the language of § 1252(f)(1). This contention also ignores what is an important distinction between § 1252(f)(1) and § 1252(f)(2). Section 1252(f)(1) prohibits the use of injunctive relief against entire provisions of immigration law,⁷ whereas § 1252(f)(2) relates solely to enjoining "the removal of any alien." The use of the word "restrain" would be inappropriate as to removal because injunctive relief grants the very affirmative relief sought by aliens instead of merely preserving the status quo. See Zardui-Quintana, 768 F.2d at 1215 n. 7 (Tjoflat, J.) (citing Fernandez-Roque v. Smith, 671 F.2d 426, 429-31 (11th Cir.1982)). As discussed previously, Congress chose the broad word "enjoin" in § 1252(f)(2) against a specific and consistent backdrop of case law — both generally and in immigration law — interpreting stays as injunctive relief and did not exclude them or include any limiting language in § 1252(f)(2).⁸

Nor do we believe that § 1252(f)(2) only applies to requests for collateral injunctive relief. Its words speak of no such limitation.⁹ In addition, § 1252(f)(2)'s raising of the bar for temporary stays fits into IIRIRA's new landscape. Petitions for review no longer automatically stay removal. Instead only aliens who can show clear-cut errors under established...