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Nken v. Holder

Supreme Court of the United States

January 21, 2009, Argued; April 22, 2009, Decided

No. 08-681

Case Summary

Procedural Posture

Petitioner alien sought a stay of removal pending review of the removal order, but respondent U.S. Attorney General asserted that the alien was unable to meet the stringent requirements for a stay under 8 U.S.C.S. § 1252(f). Upon the grant of a writ of certiorari, the alien appealed the judgment of the U.S. Court of Appeals for the Fourth Circuit which denied the alien's motion for a stay pending appeal.

Overview

The Attorney General contended that denial of the stay requested by the alien was proper under the standard of § 1252(f) which precluded an injunction against removal unless the alien showed by clear and convincing evidence that the entry or execution of the removal order was legally prohibited. The alien argued that § 1252(b)(3)(B) permitted the stay under the traditional standard which required only a showing of likely success on the merits, irreparable injury, lack of injury to other parties, and the public interest. The U.S. Supreme Court held that the standard applicable to injunctive relief from removal under § 1252(f) did not preclude a stay of removal pending review under § 1252(b)(3)(B) by application of the traditional standards for such a stay. A stay and an injunction were not synonymous, since an injunction typically referred to an order requiring a person to act or refrain from acting and a stay was a temporary suspension of legal proceedings, and the statutory limitation on injunctive relief from removal thus did not limit a court's inherent authority to stay the removal order.

Outcome

The judgment denying the alien's motion for a stay of removal pending review was vacated, and the case was remanded for consideration of the alien's motion for a stay under the traditional standards for a stay of proceedings. 7-2 Decision; 1 Dissent.

LexisNexis® Headnotes

 

 

Civil Procedure > ... > Stays of Judgments > Appellate Stays > General Overview

HN1 As part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal. A stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it.

 

Immigration Law > Deportation & Removal > Judicial Review > Petitions for Review

Immigration Law > Judicial Proceedings > Remedies > Writs

HN2  Petitions for Review

See 8 U.S.C.S. § 1252(b)(3)(B).

 

Immigration Law > Deportation & Removal > Effect & Execution of Orders

Immigration Law > Judicial Proceedings > Remedies > Writs

HN3  Effect & Execution of Orders

See 8 U.S.C.S. § 1252(f).

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556 U.S. 418 ; 129 S. Ct. 1749 ; 173 L. Ed. 2d 550 ; 2009 U.S. LEXIS 3121 ; 77 U.S.L.W. 4310

JEAN MARC NKEN, Petitioner v. ERIC H. HOLDER, JR., ATTORNEY GENERAL

Subsequent History: On remand at, Remanded by Nken v. Holder, 585 F.3d 818, 2009 U.S. App. LEXIS 23947 (4th Cir., Oct. 30, 2009)

Prior History:  [1] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

Nken v. Mukasey, 555 U.S. 1042, 129 S. Ct. 622, 172 L. Ed. 2d 474, 2008 U.S. LEXIS 8525 (U.S., 2008)

Disposition: Vacated and remanded.