Hor, Abdelhadi v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1964
ABDELHADI HOR,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of a Decision of the
Board of Immigration Appeals
____________
SUBMITTED FEBRUARY 2, 2005—DECIDED MARCH 2, 2005
____________
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 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
2 No. 04-1964
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 ac-
knowledge 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 Immi-
gration 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
No. 04-1964 3
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 (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 . . . does not stay the removal of an alien pend-
ing the court’s decision on the petition, unless the court
orders otherwise.” 8 U.S.C. §1252(b)(3)(B). It would have
been easy to write something like: “Service of the peti-
tion . . . does not stay the removal of an alien pending the
court’s decision on the petition, unless the court determines
that the standards for an injunction under subsection (f)(2)
4 No. 04-1964
have been satisfied.” But that’s not what it says. Subsection
(b)(3)(B) speaks of stays, while subsection (f) deals with
injunctions.
The Attorney General wants us to treat “stays” as a
subset of “injunctions.” Certainly there is a functional
overlap: a stay, like an injunction, can stop an agency in its
tracks, and courts accordingly require the same kind of
showing for a stay of an agency’s order as for an interlocu-
tory injunction. See Sofinet v. INS, 188 F.3d 703, 706 (7th
Cir. 1999). But the words nonetheless cover different
domains. An “injunction” is an order issued as the relief in
independent litigation, while a “stay” is an order integral to
a system of judicial review: an appellate court may stay a
district judge’s order, or its own mandate, or an agency’s
decision when the agency plays the role of the district court
and the initial judicial tribunal is a court of appeals. See
Illinois Bell Telephone Co. v. WorldCom Technologies, Inc.,
157 F.3d 500, 503 (7th Cir. 1998). Perhaps the distinction
between injunctions and stays rests more on history than
on function—especially when the stay’s addressee is an
agency rather than another judge. Still, it is a long-standing
distinction, reflected not only in 8 U.S.C. §1252 but also in
Fed. R. App. P. 18 and 28 U.S.C. §2349, which govern the
issuance of “stays” pending appellate review of federal
agencies’ decisions.
Congress could limit our authority to issue stays, just
as it has limited district judges’ authority to issue injunc-
tions. But treating a rule addressed to “injunctions” as
covering “stays” would impoverish the language and
make the legislative task more difficult. Our legal vo-
cabulary contains distinct words for distinctive judicial
actions. Keeping them separate makes it easy to ad-
dress one, both, or neither, in a statute such as the IIRIRA.
By contrast, treating a subsection that mentions injunctions
but not stays as covering both would force Congress to add
provisos each time it sought to regulate one but not the
No. 04-1964 5
other. Once a legal community develops a stable nomencla-
ture, it is best to apply it mechanically so that no one is
taken unawares, and so that drafting can be uncluttered by
provisos. See Morrissette v. United States, 342 U.S. 246, 263
(1952); Continental Can Co. v. Chicago Truck Drivers
Pension Fund, 916 F.2d 1154, 1158 (7th Cir. 1990); Country
Mutual Insurance Co. v. American Farm Bureau Federation,
876 F.2d 599, 600 (7th Cir. 1989).
This is not to say that the people who wrote and voted for
subsection (f) necessarily recognized that stays differ from
injunctions. Courts often say that Congress understands
and legislates against the background of established law,
e.g., Haig v. Agee, 453 U.S. 280, 297 (1981); Cannon v.
University of Chicago, 441 U.S. 677, 699 (1979), but this is
a legal fiction. It would be better to say that courts proceed
as if the legislature had such an understanding, because
then there will be no surprises when the legislature does its
homework. Persons who draft legal texts can supply
legislators with reliable advice about what the texts will do
if enacted. As the Supreme Court remarked recently,
applying established legal distinctions gives Congress a
formulary: it can achieve one result by using a particular
word or phrase, a different result with a different phrase.
Whitfield v. United States, 125 S. Ct. 687, 692 (2005).
Courts (and lawyers) will be spared difficult and expensive
tours through the legislative history and can avoid the
impossible task of trying to guess what Members of Con-
gress may have “had in mind” or “intended” about language
that they probably did not read in the first place.
Nothing in §1252, or anywhere else in the IIRIRA, defines
“injunction” to include “stay.” Subsection (b)(3)(B) implies
that the two differ. Title 8 as a whole refers to “stay” 14
times (in the current sense as opposed to “overstay a visa”
and the like) and “enjoin” or “injunction” a total of 7 times;
these words are not treated as coterminous in any provi-
sion. Nor is it jarring to recognize a difference in applica-
6 No. 04-1964
tion; for reasons we have mentioned, limits on injunctive
relief are more sensible when an alien has had an opportu-
nity for effectual judicial review before removal. Although
the IIRIRA allows a petition to continue even after the
alien’s departure—an alien may return if he prevails in this
court, see Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651-54
(7th Cir. 2004); Rife v. Ashcroft, 374 F.3d 606, 615 (8th Cir.
2004)—and thus makes stays less important than they were
before 1996, they may remain vital when the alien seeks
asylum or contends that he would be subject to torture if
returned. The ability to come back to the United States
would not be worth much if the alien has been maimed or
murdered in the interim. Yet under the Attorney General’s
reading of §1252(f)(2) an alien who is likely to prevail in
this court, and likely to face serious injury or death if
removed, is not entitled to remain in this nation while the
court resolves the dispute. There’s nothing absurd about
reading §1252(b)(3)(B) to permit courts to avert such harms.
So we join the majority of other circuits in holding that
§1252(f)(2) does not affect applications for stays of removal
pending review of the Board’s decisions.
Although this makes Hor eligible for consideration
under the traditional equitable standards, he is not entitled
to relief. The harm he professes to fear is great indeed, but
his probability of success on the merits is low. Hor testified
that until leaving Algeria in 2000 he was the political
committee secretary of its ruling party, the National
Liberation Front. Twice, Hor contends, he had been assailed
by revolutionaries affiliated with the Armed Islamic Group
or GIA who threatened him with death unless he would
betray the government and provide information to assist
the rebels. The immigration judge did not believe him; the
Board of Immigration Appeals added that even if all of his
testimony is truthful he is not entitled to remain in the
United States. This latter conclusion, which Hor’s motion
slights, makes his position untenable.
No. 04-1964 7
By Hor’s own account he escaped and never received a
scratch; the second time, the government’s forces killed two
of the three terrorists who had threatened him and cap-
tured the third. He says that the GIA would make
new attempts on his life if he were to return (though by now
his information must be stale), but a threat posed by an
armed insurgency is not “persecution.” Persecution is
something a government does, either directly or by abetting
(and thus becoming responsible for) private discrimination
by throwing in its lot with the deeds or by providing
protection so ineffectual that it becomes a sensible inference
that the government sponsors the misconduct. See 8 U.S.C.
§1101(a)(42)(A); Balogun v. Ashcroft, 374 F.3d 492, 499 &
n.8 (7th Cir. 2004). The government of Algeria is trying to
thwart the GIA, and Hor is aligned with the government.
He is accordingly not a victim of persecution. That the
rebels abhor his political allegiance is irrelevant. Like many
other citizens of Algeria, he would prefer to be far away
from violent strife, but guerrilla conflicts and even civil
wars do not require immigration officials to grant asylum to
either side’s combatants or supporters. See INS v. Elias-
Zacarias, 502 U.S. 478, 482-84 (1992); Ahmed v. Ashcroft,
348 F.3d 611, 619 (7th Cir. 2003) (sustaining an order
removing to Algeria a former security officer who contended
that he would be targeted by rebels).
The interim stay is dissolved, and the application for
a stay of removal is denied.
8 No. 04-1964
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-2-05