Nken v. Holder , 129 S. Ct. 1749 ( 2009 )

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NKEN v. HOLDER, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 08–681. Argued January 21, 2009—Decided April 22, 2009
Petitioner Nken sought an order from the Fourth Circuit staying his
removal to Cameroon while his petition for review of a Board of Im
migration Appeals order denying his motion to reopen removal pro
ceedings was pending. Nken acknowledged that Circuit precedent
required an alien seeking such a stay to satisfy 8 U. S. C. §1252(f)(2),
which sharply restricts the availability of injunctions blocking the
removal of an alien from this country, but argued that a court’s au
thority to stay a removal order should instead be controlled by the
traditional criteria governing stays. The Court of Appeals denied the
stay motion without comment.
Held: Traditional stay factors, not the demanding §1252(f)(2) standard,
govern a court of appeals’ authority to stay an alien’s removal pend
ing judicial review. Pp. 3–17.
(a) This question stems from changes made in the Illegal Im
migration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), which “repealed the old judicial-review scheme set forth in
[8 U. S. C.] §1105a [(1994 ed.),] and instituted a new (and significantly
more restrictive) one in . . . §1252,” Reno v. American-Arab Anti-
Discrimination Comm., 525 U. S. 471, 475 (AAADC). Because courts
of appeals lacked jurisdiction before IIRIRA to review the removal
order of an alien who had already left the United States, see
§1105a(c), most aliens who appealed such a decision were given an
automatic stay of the removal order pending judicial review, see
§1105a(a)(3). Three changes IIRIRA made are of particular impor
tance here. First, the repeal of §1105a allows courts to adjudicate a
petition for review even if the alien is removed while the petition is
pending. Second, the presumption of an automatic stay was repealed
and replaced with a provision stating that “[s]ervice of the petition
2 NKEN v. HOLDER
Syllabus
. . . does not stay the removal of an alien pending the court’s decision
on the petition, unless the court orders otherwise.” §1252(b)(3)(B).
Finally, IIRIRA provided that “no court shall enjoin the removal of
any alien . . . unless [he] shows by clear and convincing evidence that
the entry or execution of such order is prohibited as a matter of law.”
§1252(f)(2). Pp. 3–5.
(b) The parties dispute what standard a court should apply when
determining whether to grant a stay. Petitioner argues that the
“traditional” stay standard should apply, meaning a court should
consider “(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether [he] will be ir
reparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties . . . ; and (4) where the public
interest lies.” Hilton v. Braunskill, 481 U. S. 770, 776. The Govern
ment argues that §1252(f) should govern, meaning an alien must
show “by clear and convincing evidence that the entry or execution of
[the removal] order is prohibited as a matter of law.” Pp. 5–6.
(c) An appellate court’s power to hold an order in abeyance while it
assesses the order’s legality has been described as inherent, and part
of a court’s “traditional equipment for the administration of justice.”
Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 9–10. That power
allows a court to act responsibly, by ensuring that the time the court
takes to bring considered judgment to bear on the matter before it
does not result in irreparable injury to the party aggrieved by the or
der under review. But a stay “is not a matter of right, even if irrepa
rable injury might otherwise result to the appellant.” Virginian R.
Co. v. United States, 272 U. S. 658, 672. The parties and the public,
while entitled to both careful review and a meaningful decision, are
also entitled to the prompt execution of orders that the legislature
has made final. Pp. 6–7.
(d) Section 1252(f) does not refer to “stays,” but rather to authority
to “enjoin the removal of any alien.” An injunction and a stay serve
different purposes. The former is the means by which a court tells
someone what to do or not to do. While in a general sense many or
ders may be considered injunctions, the term is typically used to refer
to orders that operate in personam. By contrast, a stay operates
upon the judicial proceeding itself, either by halting or postponing
some portion of it, or by temporarily divesting an order of enforceabil
ity. An alien seeking a stay of removal pending adjudication of a pe
tition for review does not ask for a coercive order against the govern
ment, but instead asks to temporarily set aside the removal order.
That kind of stay, “relat[ing] only to the conduct or progress of litiga
tion before th[e] court[,] ordinarily is not considered an injunction.”
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 279.
Cite as: 556 U. S. ____ (2009) 3
Syllabus
That §1252(f)(2) does not comfortably cover stays is evident in Con
gress’s use of the word “stay” in subsection (b)(3)(B) but not subsec
tion (f)(2), particularly since those subsections were enacted as part
of a unified overhaul of judicial review. The statute’s structure also
clearly supports petitioner’s reading: Because subsection (b)(3)(B)
changed the basic rules covering stays of removal, the natural place
to locate an amendment to the standard governing stays would have
been subsection (b)(3)(B), not a provision four subsections later that
makes no mention of stays. Pp. 8–12.
(e) Subsection (f)(2)’s application would not fulfill the historic office
of a stay, which is to hold the matter under review in abeyance to al
low the appellate court sufficient time to decide the merits. Under
subsection (f)(2), a stay would only be granted after the court in effect
decides the merits, in an expedited manner. The court would have to
do so under a “clear and convincing evidence” standard that does not
so much preserve the availability of subsequent review as render it
redundant. Nor would subsection (f)(2) allow courts “to prevent ir
reparable injury to the parties or to the public” pending review,
Scripps-Howard, 316 U. S., at 9; the subsection on its face does not
permit any consideration of harm, irreparable or otherwise. In short,
applying §1252(f)(2) in the stay context would result in something
that does not remotely look like a stay. As in Scripps-Howard, the
Court is loath to conclude that Congress would, “without clearly ex
pressing such a purpose, deprive the Court of Appeals of its custom
ary power to stay orders under review.” Id., at 11. The Court is not
convinced Congress did so in §1252(f)(2). Pp. 12–13.
(f) The parties dispute what the traditional four-factor standard
entails. A stay is not a matter of right, and its issuance depends on
the circumstances of a particular case. The first factor, a strong
showing of a likelihood of success on the merits, requires more than a
mere possibility that relief will be granted. Similarly, simply show
ing some possibility of irreparable injury fails to satisfy the second
factor. See Winter v. Natural Resources Defense Council, Inc., 555
U. S. ___, ___. Although removal is a serious burden for many aliens,
that burden alone cannot constitute the requisite irreparable injury.
An alien who has been removed may continue to pursue a petition for
review, and those aliens who prevail can be afforded effective relief
by facilitation of their return, along with restoration of the immigra
tion status they had upon removal. The third and fourth factors,
harm to the opposing party and the public interest, merge when the
Government is the opposing party. In considering them, courts must
be mindful that the Government’s role as the respondent in every
removal proceeding does not make its interest in each one negligible.
There is always a public interest in prompt execution of removal or
4 NKEN v. HOLDER
Syllabus
ders, see AAADC, supra, at 490, and that interest may be heightened
by circumstances such as a particularly dangerous alien, or an alien
who has substantially prolonged his stay by abusing the processes
provided to him. A court asked to stay removal cannot simply as
sume that the balance of hardships will weigh heavily in the appli
cant’s favor. Pp. 13–16.
Vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS,
SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KEN-
NEDY, J., filed a concurring opinion, in which SCALIA, J., joined. ALITO,
J., filed a dissenting opinion, in which THOMAS, J., joined.
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–681
_________________
JEAN MARC NKEN, PETITIONER v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[April 22, 2009]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
It takes time to decide a case on appeal. Sometimes a
little; sometimes a lot. “No court can make time stand
still” while it considers an appeal, Scripps-Howard Radio,
Inc. v. FCC, 316 U. S. 4, 9 (1942), and if a court takes the
time it needs, the court’s decision may in some cases come
too late for the party seeking review. That is why it “has
always been held, . . . that as part of its traditional equip
ment for the administration of justice, a federal court can
stay the enforcement of a judgment pending the outcome
of an appeal.” Id., at 9–10 (footnote omitted). A stay does
not make time stand still, but does hold a ruling in abey
ance to allow an appellate court the time necessary to
review it.
This case involves a statutory provision that sharply
restricts the circumstances under which a court may issue
an injunction blocking the removal of an alien from this
country. The Court of Appeals concluded, and the Gov
ernment contends, that this provision applies to the grant
ing of a stay by a court of appeals while it considers the
2 NKEN v. HOLDER
Opinion of the Court
legality of a removal order. Petitioner disagrees, and
maintains that the authority of a court of appeals to stay
an order of removal under the traditional criteria govern
ing stays remains fully intact, and is not affected by the
statutory provision governing injunctions. We agree with
petitioner, and vacate and remand for application of the
traditional criteria.
I
Jean Marc Nken, a citizen of Cameroon, entered the
United States on a transit visa in April 2001. In Decem
ber 2001, he applied for asylum under 8 U. S. C. §1158,
withholding of removal under §1231(b)(3), and deferral of
removal under the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment,
art. 3, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S.
85, see 8 CFR §208.17 (2008). In his application, Nken
claimed he had been persecuted in the past for participa
tion in protests against the Cameroonian Government,
and would be subject to further persecution if he returns
to Cameroon.
An Immigration Judge denied Nken relief after conclud
ing that he was not credible. The Board of Immigration
Appeals (BIA) affirmed, and also declined to remand for
consideration of Nken’s application for adjustment of
status based on his marriage to an American citizen.
After the BIA denied a motion to reopen, Nken filed a
petition for review of the BIA’s removal order in the Court
of Appeals for the Fourth Circuit. His petition was denied.
Nken then filed a second motion to reopen, which was also
denied, followed by a second petition for review, which was
denied as well.
Nken filed a third motion to reopen, this time alleging
that changed circumstances in Cameroon made his perse
cution more likely. The BIA denied the motion, finding
that Nken had not presented sufficient facts or evidence of
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
changed country conditions. Nken again sought review in
the Court of Appeals, and also moved to stay his deporta
tion pending resolution of his appeal. In his motion, Nken
recognized that Fourth Circuit precedent required an alien
seeking to stay a removal order to show by “clear and
convincing evidence” that the order was “prohibited as a
matter of law,” 8 U. S. C. §1252(f)(2). See Teshome-
Gebreegziabher v. Mukasey, 528 F. 3d 330 (CA4 2008).
Nken argued, however, that this standard did not govern.
The Court of Appeals denied Nken’s motion without com
ment. App. 74.
Nken then applied to this Court for a stay of removal
pending adjudication of his petition for review, and asked
in the alternative that we grant certiorari to resolve a split
among the Courts of Appeals on what standard governs a
request for such a stay. Compare Teshome-Gebreegziabher,
supra, at 335, and Weng v. U. S. Attorney General, 287
F. 3d 1335 (CA11 2002), with Arevalo v. Ashcroft, 344
F. 3d 1 (CA1 2003), Mohammed v. Reno, 309 F. 3d 95 (CA2
2002), Douglas v. Ashcroft, 374 F. 3d 230 (CA3 2004),
Tesfamichael v. Gonzales, 411 F. 3d 169 (CA5 2005), Be
jjani v. INS, 271 F. 3d 670 (CA6 2001), Hor v. Gonzales,
400 F. 3d 482 (CA7 2005), and Andreiu v. Ashcroft, 253
F. 3d 477 (CA9 2001) (en banc). We granted certiorari,
and stayed petitioner’s removal pending further order of
this Court. Nken v. Mukasey, 555 U. S. ___ (2008).
II
The question we agreed to resolve stems from changes
in judicial review of immigration procedures brought on by
the Illegal Immigration Reform and Immigrant Responsi
bility Act of 1996 (IIRIRA), 110 Stat. 3009–546, which
substantially amended the Immigration and Nationality
Act (INA), 8 U. S. C. §1101 et seq. When Congress passed
IIRIRA, it “repealed the old judicial-review scheme set
forth in [8 U. S. C.] §1105a and instituted a new (and
4 NKEN v. HOLDER
Opinion of the Court
significantly more restrictive) one in 8 U. S. C. §1252.”
Reno v. American-Arab Anti-Discrimination Comm., 525
U. S. 471, 475 (1999) (AAADC). The new review system
substantially limited the availability of judicial review and
streamlined all challenges to a removal order into a single
proceeding: the petition for review. See, e.g., 8 U. S. C.
§1252(a)(2) (barring review of certain removal orders and
exercises of executive discretion); §1252(b)(3)(C) (estab
lishing strict filing and briefing deadlines for review pro
ceedings); §1252(b)(9) (consolidating challenges into peti
tion for review). Three changes effected by IIRIRA are of
particular importance to this case.
Before IIRIRA, courts of appeals lacked jurisdiction to
review the deportation order of an alien who had already
left the United States. See §1105a(c) (1994 ed.) (“An order
of deportation or of exclusion shall not be reviewed by any
court . . . if [the alien] has departed from the United States
after the issuance of the order”). Accordingly, an alien
who appealed a decision of the BIA was typically entitled
to remain in the United States for the duration of judicial
review. This was achieved through a provision providing
most aliens with an automatic stay of their removal order
while judicial review was pending. See §1105a(a)(3) (“The
service of the petition for review . . . shall stay the depor
tation of the alien pending determination of the petition by
the court, unless the court otherwise directs”).
IIRIRA inverted these provisions to allow for more
prompt removal. First, Congress lifted the ban on adjudi
cation of a petition for review once an alien has departed.
See IIRIRA §306(b), 110 Stat. 3009–612 (repealing
§1105a). Second, because courts were no longer prohibited
from proceeding with review once an alien departed, see
Dada v. Mukasey, 554 U. S. 1, ___ (2008) (slip op., at 19–
20), Congress repealed the presumption of an automatic
stay, and replaced it with the following: “Service of the
petition on the officer or employee does not stay the re
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
moval of an alien pending the court’s decision on the peti
tion, unless the court orders otherwise.” 8 U. S. C.
§1252(b)(3)(B) (2006 ed.).
Finally, IIRIRA restricted the availability of injunctive
relief:
“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 op
eration of the provisions of part IV of this subchapter,
as amended by [IIRIRA], 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.” §1252(f).
This provision, particularly subsection (f)(2), is the source
of the parties’ disagreement.
III
The parties agree that courts of appeals considering a
petition for review of a removal order may prevent that
order from taking effect and therefore block removal while
adjudicating the petition. They disagree over the standard
a court should apply in deciding whether to do so. Nken
argues that the “traditional” standard for a stay applies.
Under that standard, a court considers four factors: “(1)
whether the stay applicant has made a strong showing
6 NKEN v. HOLDER
Opinion of the Court
that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where
the public interest lies.” Hilton v. Braunskill, 481 U. S.
770, 776 (1987).
The Government disagrees, arguing that a stay is sim
ply a form of injunction, or alternatively that the relief
petitioner seeks is more accurately characterized as in
junctive, and therefore that the limits on injunctive relief
set forth in subsection (f)(2) apply. Under that provision, a
court may not “enjoin” the removal of an alien subject to a
final removal order, “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). Mindful that statutory interpretation turns
on “the language itself, the specific context in which that
language is used, and the broader context of the statute as
a whole,” Robinson v. Shell Oil Co., 519 U. S. 337, 341
(1997), we conclude that the traditional stay factors—not
§1252(f)(2)—govern a request for a stay pending judicial
review.
A
An appellate court’s power to hold an order in abeyance
while it assesses the legality of the order has been de
scribed as “inherent,” preserved in the grant of authority
to federal courts to “issue all writs necessary or appropri
ate in aid of their respective jurisdictions and agreeable to
the usages and principles of law,” All Writs Act, 28
U. S. C. §1651(a). See In re McKenzie, 180 U. S. 536, 551
(1901). The Court highlighted the historic pedigree and
importance of the power in Scripps-Howard, 316 U. S. 4,
holding in that case that Congress’s failure expressly to
confer the authority in a statute allowing appellate review
should not be taken as an implicit denial of that power.
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
The Court in Scripps-Howard did not decide what “cri
teria . . . should govern the Court in exercising th[e]
power” to grant a stay. Id., at 17. Nor did the Court
consider under what circumstances Congress could deny
that authority. See ibid. The power to grant a stay pend
ing review, however, was described as part of a court’s
“traditional equipment for the administration of justice.”
Id., at 9–10. That authority was “firmly imbedded in our
judicial system,” “consonant with the historic procedures
of federal appellate courts,” and “a power as old as the
judicial system of the nation.” Id., at 13, 17.
The authority to hold an order in abeyance pending
review allows an appellate court to act responsibly. A
reviewing court must bring considered judgment to bear
on the matter before it, but that cannot always be done
quickly enough to afford relief to the party aggrieved by
the order under review. The choice for a reviewing court
should not be between justice on the fly or participation in
what may be an “idle ceremony.” Id., at 10. The ability to
grant interim relief is accordingly not simply “[a]n historic
procedure for preserving rights during the pendency of an
appeal,” id., at 15, but also a means of ensuring that ap
pellate courts can responsibly fulfill their role in the judi
cial process.
At the same time, a reviewing court may not resolve a
conflict between considered review and effective relief by
reflexively holding a final order in abeyance pending
review. A stay is an “intrusion into the ordinary processes
of administration and judicial review,” Virginia Petroleum
Jobbers Assn. v. Federal Power Comm’n, 259 F. 2d 921,
925 (CADC 1958) (per curiam), and accordingly “is not a
matter of right, even if irreparable injury might otherwise
result to the appellant,” Virginian R. Co. v. United States,
272 U. S. 658, 672 (1926). The parties and the public,
while entitled to both careful review and a meaningful
decision, are also generally entitled to the prompt execu
8 NKEN v. HOLDER
Opinion of the Court
tion of orders that the legislature has made final.
B
Subsection (f)(2) does not by its terms refer to “stays”
but instead to the authority to “enjoin the removal of any
alien.” The parties accordingly begin by disputing
whether a stay is simply a type of injunction, covered by
the term “enjoin,” or a different form of relief. An injunc
tion and a stay have typically been understood to serve
different purposes. The former is a means by which a
court tells someone what to do or not to do. When a court
employs “the extraordinary remedy of injunction,”
Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982),
it directs the conduct of a party, and does so with the
backing of its full coercive powers. See Black’s Law Dic
tionary 784 (6th ed. 1990) (defining “injunction” as “[a]
court order prohibiting someone from doing some specified
act or commanding someone to undo some wrong or
injury”).
It is true that “ ‘[i]n a general sense, every order of a
court which commands or forbids is an injunction; but in
its accepted legal sense, an injunction is a judicial process
or mandate operating in personam.’ ” Id., at 800 (8th ed.
2004) (quoting 1 H. Joyce, A Treatise on the Law Relating
to Injunctions §1, pp. 2–3 (1909)). This is so whether the
injunction is preliminary or final; in both contexts, the
order is directed at someone, and governs that party’s
conduct.
By contrast, instead of directing the conduct of a par
ticular actor, a stay operates upon the judicial proceeding
itself. It does so either by halting or postponing some
portion of the proceeding, or by temporarily divesting an
order of enforceability. See Black’s, supra, at 1413 (6th ed.
1990) (defining “stay” as “a suspension of the case or some
designated proceedings within it”).
A stay pending appeal certainly has some functional
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
overlap with an injunction, particularly a preliminary one.
Both can have the practical effect of preventing some
action before the legality of that action has been conclu
sively determined. But a stay achieves this result by
temporarily suspending the source of authority to act—the
order or judgment in question—not by directing an actor’s
conduct. A stay “simply suspend[s] judicial alteration of
the status quo,” while injunctive relief “grants judicial
intervention that has been withheld by lower courts.”
Ohio Citizens for Responsible Energy, Inc. v. NRC, 479
U. S. 1312, 1313 (1986) (SCALIA, J., in chambers); see also
Brown v. Gilmore, 533 U. S. 1301, 1303 (2001) (Rehnquist,
C. J., in chambers) (“[A]pplicants are seeking not merely a
stay of a lower court judgment, but an injunction against
the enforcement of a presumptively valid state statute”);
Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301,
1302 (1993) (same) (“By seeking an injunction, applicants
request that I issue an order altering the legal status
quo”).
An alien seeking a stay of removal pending adjudication
of a petition for review does not ask for a coercive order
against the Government, but rather for the temporary
setting aside of the source of the Government’s authority
to remove. Although such a stay acts to “ba[r] Executive
branch officials from removing [the applicant] from the
country,” post, at 7 (ALITO, J., dissenting), it does so by
returning to the status quo—the state of affairs before the
removal order was entered.* That kind of stay, “relat[ing]
——————
* The dissent maintains that “[a]n order preventing an executive
officer from [enforcing a removal order] does not ‘simply suspend
judicial alteration of the status quo,’ ” but instead “blocks executive
officials from carrying out what they view as proper enforcement of the
immigration laws.” Post, at 7 (quoting Ohio Citizens for Responsible
Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (SCALIA, J., in cham
bers)). But the relief sought here would simply suspend administrative
alteration of the status quo, and we have long recognized that such
10 NKEN v. HOLDER
Opinion of the Court
only to the conduct or progress of litigation before th[e]
court[,] ordinarily is not considered an injunction.” Gulf
stream Aerospace Corp. v. Mayacamas Corp., 485 U. S.
271, 279 (1988); see Fed. Rule App. Proc. 8(a)(1)(A) (refer
ring to interim relief from “the judgment or order of a
district court pending appeal” as “a stay”). Whether such
a stay might technically be called an injunction is beside
the point; that is not the label by which it is generally
known. The sun may be a star, but “starry sky” does not
refer to a bright summer day. The terminology of subsec
tion (f)(2) does not comfortably cover stays.
This conclusion is reinforced by the fact that when
Congress wanted to refer to a stay pending adjudication of
a petition for review in §1252, it used the word “stay.” In
subsection (b)(3)(B), under the heading “Stay of order,”
Congress provided that service of a petition for review
“does not stay the removal of an alien pending the court’s
decision on the petition, unless the court orders other
wise.” 8 U. S. C. §1252(b)(3)(B). By contrast, the language
of subsection (f) says nothing about stays, but is instead
titled “Limit on injunctive relief,” and refers to the author
ity of courts to “enjoin the removal of any alien.”
——————
temporary relief from an administrative order—just like temporary
relief from a court order—is considered a stay. See Scripps-Howard
Radio, Inc. v. FCC, 316 U. S. 4, 10–11 (1942).
The dissent would distinguish Scripps-Howard on the ground that
Nken does not really seek to stay a final order of removal, but instead
seeks “to enjoin the Executive Branch from enforcing his removal order
pending judicial review of an entirely separate order [denying a motion
to reopen].” Post, at 4, n. But a determination that the BIA should
have granted Nken’s motion to reopen would necessarily extinguish the
finality of the removal order. See Tr. of Oral Arg. for Respondent 42
(“[I]f the motion to reopen is granted, that vacates the final order of
removal and, therefore, there is no longer a final order of removal
pursuant to which the alien could be removed”). The relief sought here
is properly termed a “stay” because it suspends the effect of the removal
order.
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
§1252(f)(2).
“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” INS v. Cardoza-Fonseca, 480 U. S. 421, 432
(1987) (internal quotation marks omitted). This is particu
larly true here, where subsections (b)(3)(B) and (f)(2) were
enacted as part of a unified overhaul of judicial review
procedures.
Subsection (b)(3)(B) changed the basic rules covering
stays of removal, and would have been the natural place to
locate an amendment to the traditional standard govern
ing the grant of stays. Under the Government’s view,
however, Congress placed such a provision four subsec
tions later, in a subsection that makes no mention of
stays, next to a provision prohibiting classwide injunctions
against the operation of removal provisions. See 8 U. S. C.
§1252(f)(1) (permitting injunctions only “with respect to
the application of such provisions to an individual alien”);
AAADC, 525 U. S., at 481–482. Although the dissent
“would not read too much into Congress’ decision to locate
such a provision in one subsection rather than in another,”
post, at 8, the Court frequently takes Congress’s structural
choices into consideration when interpreting statutory
provisions. See, e.g., Florida Dept. of Revenue v. Piccadilly
Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 13).
The Government counters that petitioner’s view “fails to
give any operative effect to Section 1252(f)(2).” Brief for
Respondent 32. Initially, this argument undercuts the
Government’s textual reading. It is one thing to propose
that “enjoin” in subsection (f)(2) covers a broad spectrum
of court orders and relief, including both stays and more
typical injunctions. It is quite another to suggest that
Congress used “enjoin” to refer exclusively to stays, so that
a failure to include stays in subsection (f)(2) would render
12 NKEN v. HOLDER
Opinion of the Court
the provision superfluous. If nothing else, the terms are
by no means synonymous.
Leaving that aside, there is something to the Govern
ment’s point; the exact role of subsection (f)(2) under
petitioner’s view is not easy to explain. Congress may
have been concerned about the possibility that courts
would enjoin application of particular provisions of the
INA, see 8 U. S. C. §1252(f)(1) (prohibiting injunctions
“other than with respect to the application of [Section IV
of the INA] to an individual alien”), or about injunctions
that might be available under the limited habeas provi
sions of subsection (e). Or perhaps subsection (f)(2) was
simply included as a catchall provision raising the bar on
any availability (even unforeseeable availability) of “the
extraordinary remedy of injunction.” Weinberger, 456
U. S., at 312. In any event, the Government’s point is not
enough to outweigh the strong indications that subsection
(f)(2) is not reasonably understood to be directed at stays.
C
Applying the subsection (f)(2) standard to stays pending
appeal would not fulfill the historic office of such a stay.
The whole idea is to hold the matter under review in
abeyance because the appellate court lacks sufficient time
to decide the merits. Under the subsection (f)(2) standard,
however, a stay would only be granted after the court in
effect decides the merits, in an expedited manner. The
court would have to do so under a standard—“clear and
convincing evidence”—that does not so much preserve the
availability of subsequent review as render it redundant.
Subsection (f)(2), in short, would invert the customary role
of a stay, requiring a definitive merits decision earlier
rather than later.
The authority to grant stays has historically been justi
fied by the perceived need “to prevent irreparable injury to
the parties or to the public” pending review. Scripps
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
Howard, 316 U. S., at 9. Subsection (f)(2) on its face,
however, does not allow any consideration of harm, irrepa
rable or otherwise, even harm that may deprive the
movant of his right to petition for review of the removal
order. Subsection (f)(2) does not resolve the dilemma stays
historically addressed: what to do when there is insuffi
cient time to resolve the merits and irreparable harm may
result from delay. The provision instead requires deciding
the merits under a higher standard, without regard to the
prospect of irreparable harm.
In short, applying the subsection (f)(2) standard in the
stay context results in something that does not remotely
look like a stay. Just like the Court in Scripps-Howard,
we are loath to conclude that Congress would, “without
clearly expressing such a purpose, deprive the Court of
Appeals of its customary power to stay orders under re
view.” Id., at 11. Subsection (f)(2) would certainly deprive
courts of their “customary” stay power. Our review does
not convince us that Congress did that in subsection (f)(2).
The four-factor test is the “traditional” one, Hilton, 481
U. S., at 777, and the Government has not overcome the
“presumption favoring the retention of long-established
and familiar principles, except when a statutory purpose
to the contrary is evident.” Isbrandtsen Co. v. Johnson,
343 U. S. 779, 783 (1952). We agree with petitioner that
an alien need not satisfy the demanding standard of
§1252(f)(2) when asking a court of appeals to stay removal
pending judicial review.
IV
So what standard does govern? The question presented,
as noted, offers the alternative of “ ‘the traditional test for
stays,’ ” 555 U. S., at ___, but the parties dispute what that
test is. See Brief for Respondent 46 (“[T]he four-part stan
dard requires a more demanding showing than petitioner
suggests”); Reply Brief for Petitioner 26 (“The Government
14 NKEN v. HOLDER
Opinion of the Court
argues . . . that the [stay] test should be reformulated”).
“A stay is not a matter of right, even if irreparable
injury might otherwise result.” Virginian R. Co., 272
U. S., at 672. It is instead “an exercise of judicial discre
tion,” and “[t]he propriety of its issue is dependent upon
the circumstances of the particular case.” Id., at 672–673;
see Hilton, supra, at 777 (“[T]he traditional stay factors
contemplate individualized judgments in each case”). The
party requesting a stay bears the burden of showing that
the circumstances justify an exercise of that discretion.
See, e.g., Clinton v. Jones, 520 U. S. 681, 708 (1997);
Landis v. North American Co., 299 U. S. 248, 255 (1936).
The fact that the issuance of a stay is left to the court’s
discretion “does not mean that no legal standard governs
that discretion. . . . ‘[A] motion to [a court’s] discretion is a
motion, not to its inclination, but to its judgment; and its
judgment is to be guided by sound legal principles.’ ”
Martin v. Franklin Capital Corp., 546 U. S. 132, 139
(2005) (quoting United States v. Burr, 25 F. Cas. 30, 35
(No. 14,692d) (CC Va. 1807) (Marshall, C. J.)). As noted
earlier, those legal principles have been distilled into
consideration of four factors: “(1) whether the stay appli
cant has made a strong showing that he is likely to suc
ceed on the merits; (2) whether the applicant will be ir
reparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties inter
ested in the proceeding; and (4) where the public interest
lies.” Hilton, supra, at 776. There is substantial overlap
between these and the factors governing preliminary
injunctions, see Winter v. Natural Resources Defense
Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 14); not
because the two are one and the same, but because similar
concerns arise whenever a court order may allow or disal
low anticipated action before the legality of that action has
been conclusively determined.
The first two factors of the traditional standard are the
Cite as: 556 U. S. ____ (2009) 15
Opinion of the Court
most critical. It is not enough that the chance of success
on the merits be “better than negligible.” Sofinet v. INS,
188 F. 3d 703, 707 (CA7 1999) (internal quotation marks
omitted). Even petitioner acknowledges that “[m]ore than
a mere ‘possibility’ of relief is required.” Reply Brief for
Petitioner 21 (quoting Brief for Respondent 47). By the
same token, simply showing some “possibility of irrepara
ble injury,” Abbassi v. INS, 143 F. 3d 513, 514 (CA9 1998),
fails to satisfy the second factor. As the Court pointed out
earlier this Term, the “ ‘possibility’ standard is too leni
ent.” Winter, supra, at ___ (slip op., at 12).
Although removal is a serious burden for many aliens, it
is not categorically irreparable, as some courts have said.
See, e.g., Ofosu v. McElroy, 98 F. 3d 694, 699 (CA2 1996)
(“[O]rdinarily, when a party seeks [a stay] pending appeal,
it is deemed that exclusion is an irreparable harm”); see
also Petitioner’s Emergency Motion for a Stay 12 (“[T]he
equities particularly favor the alien facing deportation in
immigration cases where failure to grant the stay would
result in deportation before the alien has been able to
obtain judicial review”).
The automatic stay prior to IIRIRA reflected a recogni
tion of the irreparable nature of harm from removal before
decision on a petition for review, given that the petition
abated upon removal. Congress’s decision in IIRIRA to
allow continued prosecution of a petition after removal
eliminated the reason for categorical stays, as reflected in
the repeal of the automatic stay in subsection (b)(3)(B). It
is accordingly plain that the burden of removal alone
cannot constitute the requisite irreparable injury. Aliens
who are removed may continue to pursue their petitions
for review, and those who prevail can be afforded effective
relief by facilitation of their return, along with restoration
of the immigration status they had upon removal. See
Brief for Respondent 44.
Once an applicant satisfies the first two factors, the
16 NKEN v. HOLDER
Opinion of the Court
traditional stay inquiry calls for assessing the harm to the
opposing party and weighing the public interest. These
factors merge when the Government is the opposing party.
In considering them, courts must be mindful that the
Government’s role as the respondent in every removal
proceeding does not make the public interest in each
individual one negligible, as some courts have concluded.
See, e.g., Mohammed, 309 F. 3d, at 102 (Government harm
is nothing more than “one alien [being] permitted to re
main while an appeal is decided”); Ofosu, supra, at 699(the Government “suffers no offsetting injury” in removal
cases).
Of course there is a public interest in preventing aliens
from being wrongfully removed, particularly to countries
where they are likely to face substantial harm. But that is
no basis for the blithe assertion of an “absence of any
injury to the public interest” when a stay is granted.
Petitioner’s Emergency Motion for a Stay 13. There is
always a public interest in prompt execution of removal
orders: The continued presence of an alien lawfully
deemed removable undermines the streamlined removal
proceedings IIRIRA established, and “permit[s] and pro
long[s] a continuing violation of United States law.”
AAADC, 525 U. S., at 490. The interest in prompt removal
may be heightened by the circumstances as well—if, for
example, the alien is particularly dangerous, or has sub
stantially prolonged his stay by abusing the processes
provided to him. See ibid. (“Postponing justifiable depor
tation (in the hope that the alien’s status will change—by,
for example, marriage to an American citizen—or simply
with the object of extending the alien’s unlawful stay) is
often the principal object of resistance to a deportation
proceeding”). A court asked to stay removal cannot simply
assume that “[o]rdinarily, the balance of hardships will
weigh heavily in the applicant’s favor.” Andreiu, 253
F. 3d, at 484.
Cite as: 556 U. S. ____ (2009)
17
Opinion of the Court
* * *
The Court of Appeals did not indicate what standard it
applied in denying Nken a stay, but Circuit precedent
required the application of §1252(f)(2). Because we have
concluded that §1252(f)(2) does not govern, we vacate the
judgment of the Court of Appeals and remand for consid
eration of Nken’s motion for a stay under the standards
set forth in this opinion.
It is so ordered.
Cite as: 556 U. S. ____ (2009) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–681
_________________
JEAN MARC NKEN, PETITIONER v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[April 22, 2009]
JUSTICE KENNEDY, with whom JUSTICE SCALIA joins,
concurring.
I join the Court’s opinion and agree that the traditional
four-part standard governs an application to stay the
removal of an alien pending judicial review. This is the
less stringent of the two standards at issue. See Kenyeres
v. Ashcroft, 538 U. S. 1301, 1303–1305 (2003) (KENNEDY,
J., in chambers).
It seems appropriate to underscore that in most cases
the debate about which standard should apply will have
little practical effect provided the court considering the
stay application adheres to the demanding standard set
forth. A stay of removal is an extraordinary remedy that
should not be granted in the ordinary case, much less
awarded as of right. Virginian R. Co. v. United States, 272
U. S. 658, 672–673 (1926); see also Winter v. Natural
Resources Defense Council, Inc., 555 U. S. ___, ___ (2008)
(slip op., at 14).
No party has provided the Court with empirical data on
the number of stays granted, the correlation between stays
granted and ultimate success on the merits, or similar
matters. The statistics would be helpful so that experi
ence can demonstrate whether this decision yields a fair
and effective result. Then, too, Congress can evaluate
whether its policy objectives are being realized by the
2 NKEN v. HOLDER
KENNEDY, J., concurring
legislation it has enacted. Based on the Government’s
representations at oral argument, however, there are
grounds for concern. See Tr. of Oral Arg. 35 (“[W]e do not
have empirical data, . . . but [stays of removal] are—in the
Ninth Circuit in our experience— . . . granted quite fre
quently”). This concern is of particular importance in
those Circuits with States on our international borders.
The Court of Appeals for Ninth Circuit, for example, con
siders over half of all immigration petitions filed nation
wide, and immigration cases compose nearly half of the
Ninth Circuit’s docket. See Catterson, Symposium, Ninth
Circuit Conference: Changes in Appellate Caseload and Its
Processing, 48 Ariz. L. Rev. 287, 297 (2006).
Under either standard, even the less stringent standard
the Court adopts today, courts should not grant stays of
removal on a routine basis. The passage of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), 110 Stat. 3009–546, reinforces this point.
Before IIRIRA, aliens who left the United States no longer
had the ability to seek review of their removal orders, see
8 U. S. C. §1105a(c) (1994 ed.) (repealed 1996), so they
could more easily have established irreparable harm due
to their removal. It is perhaps for this reason Congress
decided to “stay the deportation of [an] alien pending
determination of the petition by the court, unless the court
otherwise direct[ed].” §1105a(a)(3) (same). IIRIRA, how
ever, removed that prohibition (as well as the automatic
stay provision), and courts may now review petitions after
aliens have been removed. See Brief for Respondent 44;
ante, at 4, 15; post, at 5, 9 (ALITO, J., dissenting).
This change should mean that obtaining a stay of re
moval is more difficult. Under the Court’s four-part stan
dard, the alien must show both irreparable injury and a
likelihood of success on the merits, in addition to estab
lishing that the interests of the parties and the public
weigh in his or her favor. Ante, at 14–15. As the Court
Cite as: 556 U. S. ____ (2009) 3
KENNEDY, J., concurring
explains, because aliens may continue to seek review and
obtain relief after removal, “the burden of removal alone
cannot constitute the requisite irreparable injury.” Ante,
at 15. As a result of IIRIRA there must be a particular
ized, irreparable harm beyond mere removal to justify a
stay.
That is not to say that demonstration of irreparable
harm, without more, is sufficient to justify a stay of re
moval. The Court has held that “[a] stay is not a matter of
right, even if irreparable injury might otherwise result.”
Virginian R. Co., supra, at 672. When considering success
on the merits and irreparable harm, courts cannot dis
pense with the required showing of one simply because
there is a strong likelihood of the other. This is evident in
the decisions of Justices of the Court applying the tradi
tional factors. See, e.g., Curry v. Baker, 479 U. S. 1301,
1302 (1986) (Powell, J., in chambers) (“It is no doubt true
that, absent [a stay], the applicant here will suffer irrepa
rable injury. This fact alone is not sufficient to justify a
stay”); Ruckelshaus v. Monsanto Co., 463 U. S. 1315, 1317
(1983) (Blackmun, J., in chambers) (“[L]ikelihood of suc
cess on the merits need not be considered . . . if the appli
cant fails to show irreparable injury from the denial of the
stay”). As those decisions make clear, “ ‘the applicant
must meet a heavy burden of showing not only that the
judgment of the lower court was erroneous on the merits,
but also that the applicant will suffer irreparable injury if
the judgment is not stayed pending his appeal.’ ” Williams
v. Zbaraz, 442 U. S. 1309, 1311 (1979) (STEVENS, J., in
chambers) (quoting Whalen v. Roe, 423 U. S. 1313, 1316
(1975) (Marshall, J., in chambers)).
Cite as: 556 U. S. ____ (2009) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–681
_________________
JEAN MARC NKEN, PETITIONER v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[April 22, 2009]
JUSTICE ALITO, with whom JUSTICE THOMAS joins,
dissenting.
The Court’s decision nullifies an important statutory
provision that Congress enacted when it reformed the
immigration laws in 1996. I would give effect to that
provision, and I therefore respectfully dissent.
I
When an alien is charged with being removable from the
United States, an Immigration Judge (IJ) conducts a
hearing, receives and considers evidence, and determines
whether the alien is removable. See 8 U. S. C. §1229a(a);
8 CFR §§1240.1(a)(1)(i), (c) (2008). If the IJ enters an
order of removal, that order becomes final when the alien’s
appeal to the Board of Immigration Appeals (Board) is
unsuccessful or the alien declines to appeal to the Board.
See 8 U. S. C. §1101(47)(B); 8 CFR §§1241.1, 1241.31.
Once an order of removal has become final, it may be
executed at any time. See 8 U. S. C. §§1231(a)(1)(B)(i),
1252(b)(8)(C); 8 CFR §1241.33. Removal orders “are self
executing orders, not dependent upon judicial enforce
ment.” Stone v. INS, 514 U. S. 386, 398 (1995).
After the removal order is final and enforceable, the
alien may file a motion to reopen before the IJ, see 8
U. S. C. §1229a(c)(7), or a petition for review before the
2 NKEN v. HOLDER
ALITO, J., dissenting
appropriate court of appeals, see §1252(a)(1). While either
challenge is pending, the alien may ask the Executive
Branch to stay its own hand. See 8 CFR §§241.6(a)–(b),
1241.6(a)–(b). If, however, the alien wants a court to
restrain the Executive from executing a final and enforce
able removal order, the alien must seek an injunction to do
so. See 8 U. S. C. §1252(a)(1) (making a final order of
removal subject to 28 U. S. C. §2349(b), which provides
that an “interlocutory injunction” can “restrain” the “exe
cution of” a final order). The plain text of the Illegal Im
migration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Div. C, 110 Stat. 3009–546, provides the
relevant legal standard for granting such relief: “Notwith
standing 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 pro
hibited as a matter of law.” 8 U. S. C. §1252(f)(2).
II
In my view, petitioner’s request for an order preventing
his removal pending disposition of his current petition for
review was governed by 8 U. S. C. §1252(f)(2). Petitioner
is “remova[ble] . . . pursuant to a final order,” and he
sought a court order to “enjoin” the Executive Branch’s
execution of that removal.
A
There is no dispute that petitioner is “remova[ble] . . .
pursuant to a final order.” Ibid. On March 4, 2005, the IJ
determined that petitioner was removable under
§1227(a)(1)(B) and denied his claims for asylum, withhold
ing of removal, and protection under the Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT), Dec. 10, 1984, S. Treaty
Doc. No. 100–20, 1465 U. N. T. S. 85. See App. 32–43.
Cite as: 556 U. S. ____ (2009) 3
ALITO, J., dissenting
Petitioner appealed to the Board, and on June 16, 2006,
the Board affirmed. Id., at 44–49. On that date, peti
tioner’s order of removal became administratively final,
and the Executive Branch became legally entitled to re
move him from the United States. See 8 U. S. C.
§1231(a)(1)(B)(i); 8 CFR §1241.33(a).
B
The only remaining question, therefore, is whether the
interim equitable relief that petitioner sought was an
order “enjoin[ing]” his removal as that term is used in 8
U. S. C. §1252(f)(2). I believe that it was.
In ordinary usage, the term “enjoin” means to “require,”
“command,” or “direct” an action, or to “require a person
. . . to perform, or to abstain or desist from, some act.”
Black’s Law Dictionary 529 (6th ed. 1990) (hereinafter
Black’s). See also Webster’s Third New International
Dictionary 754 (1993) (defining “enjoin” to mean “to direct,
prescribe, or impose by order”; “to prohibit or restrain by a
judicial order or decree”). When an alien subject to a final
order of removal seeks to bar executive officials from
acting upon that order pending judicial consideration of a
petition for review, the alien is seeking to “enjoin” his or
her removal. The alien is seeking an order “restrain[ing]”
those officials and “requir[ing]” them to “abstain” from
executing the order of removal.
The Court concludes that §1252(f)(2) does not apply in
this case because, in the Court’s view, that provision
applies only to requests for an injunction and not to re
quests for a stay. That conclusion is wrong for at least
three reasons.
1
First, a stay is “a kind of injunction,” Black’s 1413, as
even the Court grudgingly concedes, see ante, at 10 (an
order blocking an alien’s removal pending judicial review
4 NKEN v. HOLDER
ALITO, J., dissenting
“might technically be called an injunction”). See also
Teshome-Gebreegziabher v. Mukasey, 528 F. 3d 330, 333
(CA4 2008) (the term “stay” “is a subset of the broader
term ‘enjoin,’ ”); Kijowska v. Haines, 463 F. 3d 583, 589
(CA7 2006) (a stay “is a form of injunction”); Weng v.
United States Atty. Gen., 287 F. 3d 1335, 1338 (CA11
2002) (“[T]he plain meaning of enjoin includes the grant of
a stay”).*
Both statutes and judicial decisions refer to orders that
“stay” legal proceedings as injunctions. For example, the
Anti-Injunction Act provides that “[a] court of the United
States may not grant an injunction to stay proceedings in
a State court.” 28 U. S. C. §2283. See also Hill v.
McDonough, 547 U. S. 573, 578–580 (2006) (habeas peti
tioner sought injunction to stay his execution); McMillen
——————
* Thus, it is unremarkable that we have used the word “stay” to de
scribe an injunction blocking an administrative order pending judicial
review. See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942);
ante, at 9–10, n. Indeed, our decision in Scripps-Howard, supra, at
11—like the Court’s decision today, ante, at 7, 14—relied heavily on
Virginian R. Co. v. United States, 272 U. S. 658 (1926), the latter of
which referred to “stays” as a subset of “injunctions.” See id., at 669(noting that the power to issue a “stay” “to preserve the status quo
pending appeal” is “an incident” of the power “to enjoin” an administra
tive order); see also id., at 671–672 (referring interchangeably to a
three-judge district court’s power to issue “injunctions” and “stays”). In
any event, both Scripps-Howard and Virginian are inapposite because
petitioner here did not seek to “stay” his removal order pending judicial
review of that order; rather, he sought to enjoin the Executive Branch
from enforcing his removal order pending judicial review of an entirely
separate order. See Stone v. INS, 514 U. S. 386, 395 (1995) (holding
that the IJ’s removal order and the Board’s denial of a motion to reopen
are “two separate final orders”); Bak v. INS, 682 F. 2d 441, 442 (CA3
1982) (per curiam) (“The general rule is that a motion to reopen depor
tation proceedings is a new, independently reviewable order”); Brief for
Respondent 51–52 (differentiating petitioner’s challenge to the IJ’s
removal order, which “became final well over a year ago,” from “peti
tioner’s latest challenge[, which] is currently pending” before the Court
of Appeals); id., at 13–14, 36–37 (similar).
Cite as: 556 U. S. ____ (2009) 5
ALITO, J., dissenting
v. Anderson, 95 U. S. 37, 42 (1877) (“[Petitioner] can, if he
is wrongfully taxed, stay the proceeding for its collection
by process of injunction”); Nivens v. Gilchrist, 319 F. 3d
151, 153 (CA4 2003) (denial of “injunction” to “stay [a]
trial”); Jove Eng., Inc. v. IRS, 92 F. 3d 1539, 1546 (CA11
1996) (automatic stay is “essentially a court-ordered in
junction”). And it is revealing that the standard that the
Court adopts for determining whether a stay should be
ordered is the standard that is used in weighing an appli
cation for a preliminary injunction. Ante, at 14 (adopting
preliminary injunction standard set out in Winter v. Natu
ral Resources Defense Council, Inc., 555 U. S. ___, ___
(2008) (slip op., at 14)).
2
Second, the context surrounding IIRIRA’s enactment
suggests that §1252(f)(2) was an important—not a super
fluous—statutory provision. This Court should interpret
it accordingly.
IIRIRA was designed to expedite removal and restrict
the ability of aliens to remain in this country pending
judicial review. Before IIRIRA, the filing of a petition for
review automatically stayed removal unless the court of
appeals directed otherwise. 8 U. S. C. §1105a(a)(3) (1994
ed.) (repealed 1996). IIRIRA repealed this provision and,
to drive home the point, specifically provided that
“[s]ervice of the petition [for judicial review] . . . does not
stay the removal of an alien pending the court’s decision
on the petition, unless the court orders otherwise.”
§1252(b)(3)(B) (2006 ed.) (emphasis added). In addition,
“many provisions of IIRIRA are aimed at protecting the
Executive’s discretion from the courts.” Reno v. American-
Arab Anti-Discrimination Comm., 525 U. S. 471, 486
(1999) (emphasis deleted). Indeed, “protecting the Execu
tive’s discretion from the courts . . . can fairly be said to be
the theme of the legislation.” Ibid. Section 1252(f)(2),
6 NKEN v. HOLDER
ALITO, J., dissenting
which provides that a court may not block removal during
the judicial review process unless a heightened standard is
met, fits perfectly within this scheme.
The Court’s interpretation, by contrast, produces
anomalous results. If §1252(f)(2) does not provide the
standard to be used by the courts in determining whether
an alien should be permitted to remain in this country
pending judicial review, then IIRIRA left the formulation
of that standard entirely to the discretion of the courts. A
Congress that sought to expedite removal and limit judi
cial discretion is unlikely to have taken that approach.
More important, if §1252(f)(2) does not set the standard
for blocking removal pending judicial review, then, as the
Court concedes, “the exact role of subsection (f)(2) . . . is
not easy to explain.” Ante, at 12. “In construing a statute
we are obliged to give effect, if possible, to every word
Congress used.” Reiter v. Sonotone Corp., 442 U. S. 330,
339 (1979). We should not lightly conclude that Congress
enacted a provision that serves no function, and the
Court’s hyper-technical distinction between an injunction
and a stay does not provide a sufficient justification for
adopting an interpretation that renders §1252(f)(2) mean
ingless. That result is particularly anomalous in the
context of §1252(f)(2), which Congress said should apply
“[n]otwithstanding any other provision of law.”
3
Third, if stays and injunctions really are two entirely
distinct concepts, the order that petitioner sought here is
best viewed as an injunction. Insofar as there is a differ
ence between the two concepts, I agree with the Court that
it boils down to this: “A stay ‘simply suspend[s] judicial
alteration of the status quo,’ ” whereas an injunction
“ ‘grants judicial intervention that has been withheld by
lower courts.’ ” Ante, at 9 (quoting Ohio Citizens for Re
sponsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986)
Cite as: 556 U. S. ____ (2009) 7
ALITO, J., dissenting
(SCALIA, J., in chambers)). See also Black’s 1413 (defining
a stay as an “act of arresting a judicial proceeding by the
order of a court”). Here, petitioner did not seek an order
“suspend[ing] judicial alteration of the status quo.” In
stead, he sought an order barring Executive branch offi
cials from removing him from the country. Such an order
is best viewed as an injunction. See McCarthy v. Briscoe,
429 U. S. 1317, 1317, n. 1 (1976) (Powell, J., in chambers)
(although applicants claimed to seek a “stay,” the court
granted an “injunction” because “the applicants actually
[sought] affirmative relief” against executive officials).
Even if petitioner had sought to block his removal pend
ing judicial review of the order of removal, any interim
order blocking his removal would best be termed an in
junction. When the Board affirmed petitioner’s final
removal order in 2006, it gave the Executive Branch all of
the legal authority it needed to remove petitioner from the
United States immediately. An order preventing an ex
ecutive officer from exercising that authority does not
“simply suspend judicial alteration of the status quo.”
Ohio Citizens for Responsible Energy, supra, at 1313.
Instead, such an order is most properly termed an injunc
tion because it blocks executive officials from carrying out
what they view as proper enforcement of the immigration
laws. And in that regard, it is significant that the Hobbs
Act—which governs judicial review under IIRIRA, see 8
U. S. C. §1252(a)(1)—refers to an “application for an inter
locutory injunction restraining or suspending the enforce
ment, operation, or execution of, or setting aside” a final
administrative order. 28 U. S. C. §2349(b) (emphasis
added).
In the present case, however, petitioner did not seek to
block his removal pending judicial review of his final order
of removal. That review concluded long ago. What peti
tioner asked for was an order barring the Executive
Branch from removing him pending judicial review of an
8 NKEN v. HOLDER
ALITO, J., dissenting
entirely different order, the Board’s order denying his
third motion to reopen the proceedings. Petitioner’s cur
rent petition for review does not contest the correctness of
the removal order. Rather, he argues that the Board
should have set aside that order due to alleged changes in
conditions in his home country. A motion to reopen an
administrative proceeding that is no longer subject to
direct judicial review surely seeks “ ‘an order altering the
status quo.’ ” Ante, at 9 (quoting Turner Broadcasting
System, Inc. v. FCC, 507 U. S. 1301, 1302 (1993)
(Rehnquist, C. J., in chambers)). Consequently, the relief
that petitioner sought here is best categorized as an
injunction.
III
In addition to its highly technical distinction between an
injunction and a stay, the Court advances several other
justifications for its decision, but none is persuasive.
The Court argues that applying 8 U. S. C. §1252(f)(2)
would “deprive” us of our “ ‘customary’ stay power.” Ante,
at 13. As noted above, however, restricting judicial discre
tion was “the theme” of IIRIRA, American-Arab Anti-
Discrimination Comm., 525 U. S., at 486. And Congress is
free to regulate or eliminate the relief that federal courts
may award, within constitutional limits that the Court
does not invoke here. Cf. INS v. St. Cyr, 533 U. S. 289,
299–300 (2001).
The Court opines that subsection (b)(3)(B)—not subsec
tion (f)(2)—is “the natural place to locate an amendment
to the traditional standard governing the grant of stays.”
Ante, at 11. But I would not read too much into Congress’
decision to locate such a provision in one subsection rather
than in another subsection of the same provision. In
addition, there is also nothing “unnatural” about Congress’
use of two separate subsections of §1252 to address a
common subject. For example, §1252(a)(2)(A) lists several
Cite as: 556 U. S. ____ (2009) 9
ALITO, J., dissenting
matters over which “no court shall have jurisdiction to
review,” while §1252(g) lists another subject over which
“no court shall have jurisdiction to hear any cause or
claim.” The fact that those provisions are separated by
five subsections and framed in slightly different terms
does not justify ignoring them, just as the space and dif
ference in terminology between §1252(b)(3)(B) and
§1252(f)(2) cannot justify the Court’s result.
Noting that the term “stay” is used in §1252(b)(3)(B) but
not in §1252(f)(2), the Court infers that Congress did not
intend that the latter provision apply to stays. Ante, at
10–11. But the use of the term “stay” in subsection
(b)(3)(B) is easy to explain. As noted above, prior to
IIRIRA, the Immigration and Nationality Act provided for
an automatic “stay” of deportation upon the filing of a
petition for review unless the court of appeals directed
otherwise. See 8 U. S. C. §1105a(a)(3) (1994 ed.) (repealed
1996). The statute provided:
“The service of the petition for review upon [the At
torney General’s agents] shall stay the deportation of
the alien pending determination of the petition by the
court . . . unless the court otherwise directs . . . .”
Ibid. (emphasis added).
In IIRIRA, Congress repealed that provision and, to make
sure that the pre-IIRIRA practice would not be continued,
enacted a new provision that explicitly inverted the prior
rule:
“Service of the petition on the officer or employee does
not stay the removal of an alien pending the court’s
decision on the petition, unless the court orders oth
erwise.” §1252(b)(3)(B) (2006 ed.) (emphasis added).
It is thus apparent that §1252(b)(3)(B) uses the term
“stay” because that is the term that was used in the provi
sion that it replaced.
10 NKEN v. HOLDER
ALITO, J., dissenting
Finally, the Court worries that applying §1252(f)(2)
would create inequitable results by allowing removable
aliens to remain in the United States only if they can
prove the merits of their claims under a “higher standard”
than the one they would otherwise have to satisfy. Ante,
at 13. But as the Court acknowledges, ante, at 4, IIRIRA
specifically contemplated that most aliens wishing to
contest final orders of removal would be forced to pursue
their appeals from abroad. See §306(b), 110 Stat. 3009–
612 (repealing 8 U. S. C. §1105a (1994 ed.)). If such an
alien seeks to remain in the United States pending judicial
review, IIRIRA provides that the alien must make the
heightened showing required under §1252(f)(2). Congress
did not think that this scheme is inequitable, and we must
heed what §1252(f)(2) prescribes.
* * *
In my view, the Fourth Circuit was correct to apply
§1252(f)(2) and to deny petitioner’s application for an
order barring his removal pending judicial review. There
fore, I would affirm the judgment of the Court of Appeals.