PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ESKEDAR TESHOME-GEBREEGZIABHER,
Petitioner,
v.
No. 08-1060
MICHAEL B. MUKASEY, Attorney
General,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals.
Argued: May 13, 2008
Decided: June 16, 2008
Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge,
and Claude M. HILTON, Senior United States District Judge for
the Eastern District of Virginia, sitting by designation.
Motion to stay removal denied by published opinion. Judge Shedd
wrote the opinion, in which Chief Judge Williams and Senior Judge
Hilton joined.
COUNSEL
ARGUED: Jason Alexander Dzubow, MENSAH, BUTLER & DZU-
BOW, PLLC, Washington, D.C., for Petitioner. Thomas Henderson
Dupree, Jr., UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Jeffrey S. Bucholtz,
Acting Assistant Attorney General, Civil Division, Carol Federighi,
2 TESHOME-GEBREEGZIABHER v. MUKASEY
Senior Litigation Counsel, Office of Immigration Litigation, Brianne
Whelan Cohen, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
OPINION
SHEDD, Circuit Judge:
Eskedar Teshome-Gebreegziabher ("Teshome"), a native and citi-
zen of Ethiopia, was ordered removed from the United States as an
alien present without admission or parole. After exhausting her
administrative appeals, Teshome filed a petition for review in this
court. Concurrently, she filed a motion to stay her removal pending
resolution of her petition for review. We scheduled Teshome’s motion
to stay for separate review in order to consider the novel issue of what
standard governs our review of the motion. Having carefully consid-
ered the parties’ arguments, we conclude that 8 U.S.C. § 1252(f)(2)
provides the controlling standard for motions to stay removal, and we
deny Teshome’s motion to stay.
I
Prior to 1996, most deportation orders entered by the Board of
Immigration Appeals ("BIA") were automatically stayed upon the fil-
ing of a petition for review in the court of appeals. See 8 U.S.C.
§ 1105a(a)(3) (1994). In those rare instances when a stay was not
automatic, the courts evaluated a stay request pursuant to the tradi-
tional balancing test used for preliminary injunctions. See, e.g., Jen-
kins v. INS, 32 F.3d 11, 14 (2d Cir. 1994). However, "[i]n 1996,
Congress made major changes to immigration law through the enact-
ment of the Illegal Immigration Reform and Immigrant Responsibility
Act (‘IIRIRA’), Pub. L. No. 104-208, 110 Stat. 3009." William v.
Gonzales, 499 F.3d 329, 330 (4th Cir. 2007). One of these changes
was the elimination of the automatic stay of removal and the concom-
itant addition of a requirement that an alien seek a stay from the court
of appeals. See 8 U.S.C. § 1252(b)(3)(B). Along with these changes,
Congress enacted the following provision:
TESHOME-GEBREEGZIABHER v. MUKASEY 3
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 con-
vincing evidence that the entry or execution of such order
is prohibited as a matter of law.
8 U.S.C. § 1252(f)(2).
The primary question now before us is whether the clear-and-
convincing standard embodied in § 1252(f)(2) applies to an alien’s
motion to stay removal.1 Both parties agree that § 1252(f)(2) prevents
a court from "enjoining" an alien’s removal unless the statutory stan-
dard is satisfied; however, they disagree as to whether a stay of
removal constitutes an injunction for purposes of the statute.2 The
Government argues that it does and that we should evaluate
Teshome’s motion to stay under § 1252(f)(2), while Teshome con-
tends that it does not and seeks the application of the preliminary
injunction standard.
A.
As with any question of statutory interpretation, "[o]ur first step . . .
is to determine whether the language at issue has a plain and unam-
1
The majority of circuits which have considered this issue have held
that the traditional preliminary injunction balancing test rather than
§ 1252(f)(2) must be used. Compare Tesfamichael v. Gonzales, 411 F.3d
169 (5th Cir. 2005); Hor v. Gonzales, 400 F.3d 482 (7th Cir. 2005);
Douglas v. Ashcroft, 374 F.3d 230 (3d Cir. 2004); Lim v. Ashcroft, 375
F.3d 1011 (10th Cir. 2004); Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir.
2003); Mohammed v. Reno, 309 F.3d 95 (2d Cir. 2002); Bejjani v. INS,
271 F.3d 670 (6th Cir. 2001); Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir.
2001) (en banc) (all adopting preliminary injunction standard) with Weng
v. U.S. Att’y Gen., 287 F.3d 1335 (11th Cir. 2002) (adopting statutory
standard). In Ngarurih v. Ashcroft, 371 F.3d 182 (4th Cir. 2004), while
not explicitly deciding the issue, we indicated that the statutory standard
applies.
2
Indeed, there can be no question that once "enjoin" is properly
defined, the clear-and-convincing standard of § 1252(f)(2) controls, for
Congress has provided that it must do so "notwithstanding any other pro-
vision of law."
4 TESHOME-GEBREEGZIABHER v. MUKASEY
biguous meaning with regard to the particular dispute in the case."
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). We determine
the "plainness or ambiguity of statutory language . . . by reference to
the language itself, the specific context in which that language is
used, and the broader context of the statute as a whole." Id. at 341.
If the statute is unambiguous, "our inquiry into Congress’ intent is at
an end, for if the language is plain and the statutory scheme is coher-
ent and consistent, we need not inquire further. Our sole function is
to enforce the statute according to its terms." William, 499 F.3d at 333
(internal citations and punctuation omitted).
With these principles in mind, we turn to the text of § 1252(f)(2),
focusing specifically on the word "enjoin." Because "enjoin" is unde-
fined in the statute, we must accord the term its "ordinary, contempo-
rary, common meaning, absent an indication Congress intended [it] to
bear some different import." DIRECTV, Inc. v. Nicholas, 403 F.3d
223, 225 (4th Cir. 2005). "We customarily turn to dictionaries for
help in determining whether a word in a statute has a plain or com-
mon meaning." Nat’l Coal. for Students v. Allen, 152 F.3d 283, 289
(4th Cir. 1998); see also United States v. Harris, 128 F.3d 850, 854
(4th Cir. 1997) (citing Black’s Law Dictionary to ascertain meaning).
In common parlance, "enjoin" means to require one "to perform, or
to abstain or desist from, some acts," Black’s Law Dictionary 529 (6th
ed. 1990), and an injunction is "[a] court order prohibiting someone
from doing some specified act," id. at 784. Similarly, "stay" is defined
in relevant part as:
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.
Id. at 1413 (emphasis added). These definitions indicate that "stay" is
a subset of the broader term "enjoin"; it is a "kind of injunction"
directed at a judicial case or proceedings within it.3
3
For example, in the instant case a stay would be directed toward
removal proceedings which, once Teshome filed her petition for review,
came within a judicial case.
TESHOME-GEBREEGZIABHER v. MUKASEY 5
This relationship between "enjoin" and "stay" is borne out in legis-
lative and judicial use of these terms. For example, in the Anti-
Injunction Act, Congress provided, "A court of the United States may
not grant an injunction to stay proceedings in a State court. . . ." 28
U.S.C. § 2283. Likewise, in Nivens v. Gilchrist, 319 F.3d 151, 153
(4th Cir. 2003), we affirmed the denial of an "injunction" to "stay [a]
trial." See also Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 455
(4th Cir. 2003) (noting that the district court "issued a stay, enjoining
the prosecution of suits"); Claughton v. Mixson, 33 F.3d 4, 5 (4th Cir.
1994) ("Pursuant to the Bankruptcy Code’s automatic stay provision
. . . the debtor’s filing of the bankruptcy petition enjoined the Florida
state court from entering a decision"). These uses of "enjoin" and
"stay," when coupled with the meaning ascribed by the dictionary,
demonstrate that in its plain and ordinary sense, a stay serves the
same function as — and is in fact a type of — an injunction. Thus,
the plain meaning of the text supports the view that § 1252(f)(2)
applies to stays of removal.
Teshome resists this conclusion with two arguments. First, she con-
tends, with support from some of our sister courts, that "enjoin" in
§ 1252(f)(2) must not include stays of removal because Congress’ use
of the phrase "enjoin and restrain" in § 1252(f)(1) shows that "enjoin"
applies only to permanent relief. We disagree. Nothing in the text of
§ 1252(f)(1) indicates that "restrain" applies only to temporary relief
while "enjoin" applies to permanent relief; "restrain," just like "stay,"
means "to enjoin." Black’s, supra, at 1314. In addition, we agree with
the Eleventh Circuit that this argument "ignores what is an important
distinction between § 1252(f)(1) and § 1252(f)(2)," Weng, 287 F.3d at
1339; i.e., "Section 1252(f)(1) prohibits the use of injunctive relief
against entire provisions of immigration law, whereas § 1252(f)(2)
relates solely to enjoining ‘the removal of any alien.’" id. (footnote
omitted).
Second, Teshome asserts that when enacting the REAL ID Act of
2005, Pub.L. No. 109-13, 119 Stat. 231, Congress considered and
rejected an amendment to § 1252(b)(3)(B) which would have made
clear that § 1252(f)(2) applies to stays of removal. This argument
aptly illustrates the dangers inherent in resorting to this type of legis-
lative history, for failed legislative proposals are "a particularly dan-
gerous ground on which to rest an interpretation of a prior statute."
6 TESHOME-GEBREEGZIABHER v. MUKASEY
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990).
Indeed, the Supreme Court has refused to read into congressional
rejection of a statutory amendment an intent to leave in place prior
judicial interpretations of a statute, reasoning that "congressional
inaction lacks persuasive significance because several equally tenable
inferences may be drawn from such inaction, including the inference
that the existing legislation already incorporated the offered change."
United States v. Craft, 535 U.S. 274, 287 (2002) (internal punctuation
and alterations omitted). We are faced with a similarly ambiguous
legislative record here: we simply do not know why Congress rejected
an amendment to § 1252(b)(3)(B) in 2005. Given the "broad statutory
language Congress did enact," Craft, 535 U.S. at 287, Teshome’s
resort to subsequent legislative history is unpersuasive.
We also see several other problems with Teshome’s reading of
§ 1252(f)(2). Initially, it is unclear when, under Teshome’s view,
§ 1252(f)(2) would ever apply. Section 1252(f)(2) cannot apply after
we have adjudicated a petition for review, for we do not "enjoin" the
removal of an alien who is entitled to relief; instead we vacate the
agency’s final order of removal. As a result, Teshome’s reading of
§ 1252(f)(2) would render the statute superfluous. See Virginia v.
Browner, 80 F.3d 869, 877 (4th Cir. 1996) ("A court should not —
and we will not — construe a statute in a manner that reduces some
of its terms to mere surplusage."). Further, if we were to apply
§ 1252(f)(2) after reaching a merits determination on a petition for
review, this would place another burden on a petitioner by forcing
him, after he has shown entitlement to relief, to demonstrate by clear
and convincing evidence that his removal is prohibited as a matter of
law before relief can be granted to him. Nothing in the statute sup-
ports such a burden. Finally, Teshome’s argument that we should read
§ 1252(f)(2) as preserving our pre-IIRIRA authority to adjudicate
motions to stay pursuant to the preliminary injunction balancing test
runs afoul of the express policy and statutory structure Congress set
out in IIRIRA, which vested much discretion in the Executive. See
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
486 (1999) (noting IIRIRA’s "theme" is "protecting the Executive’s
discretion from the courts"). We are hesitant to interpret a statute so
as to bolster our own power in the face of a deliberate congressional
allotment of authority to another branch.
TESHOME-GEBREEGZIABHER v. MUKASEY 7
In sum, § 1252(f)(2) employs the broad term "enjoin," which
plainly includes the narrower term "stay." Nothing in § 1252(f)(2)
supports Teshome’s contrary reading — one which would define "en-
join" more restrictively than its plain and ordinary usage. Teshome’s
reading of § 1252(f)(2) is therefore contrary to the statute’s plain lan-
guage. We decline to read into § 1252(f)(2) a distinction which Con-
gress did not place in its text.
B.
Congress’ intent in enacting IIRIRA accords with our view of the
statute’s plain language. As noted, prior to IIRIRA, most final orders
of removal were automatically stayed upon the filing of a petition for
review in the court of appeals, see 8 U.S.C. § 1105a(3)(a) (1994), and
the courts had no jurisdiction to review an order of deportation or
exclusion once the alien had departed the United States, see 8 U.S.C.
§ 1105a(c) (1994). With IIRIRA’s enactment, Congress swept this
system of review away. In its place, Congress provided that (1) final
orders of removal are not automatically stayed when a petition for
review is filed, but (2) an alien may continue to seek review of his
removal order once he has left the country. See 8 U.S.C.
§ 1252(b)(3)(B); IIRIRA § 306(b).
We have recognized that in making these changes Congress sought
"to expedite the removal of aliens from the country while permitting
them to continue to seek review of their removal orders from abroad."
William, 499 F.3d at 332 n.3; see also Appiah v. INS, 202 F.3d 704,
707 (4th Cir. 2000) ("Congress enacted IIRIRA . . . to expedite the
removal of deportable aliens"). Section 1252(f)(2) harmonizes with
this approach by imposing a higher burden on an alien who seeks to
remain in the country while prosecuting his appeal of a removal order
rather than to follow IIRIRA’s route of appealing the order from out-
side the country. Under § 1252(f)(2), only in those cases where he has
clearly demonstrated that his removal is unlawful is an alien permitted
to avoid the statutory sequence of removal followed by judicial
review. Granting stays based on the lesser showing contained in the
preliminary injunction standard would undercut Congress’ decision to
expedite removals. While we are not unmindful of the hardships faced
by many aliens who are removed to their home countries, at the end
of the day we are bound by the policy adopted by Congress and the
8 TESHOME-GEBREEGZIABHER v. MUKASEY
Executive’s implementation of that policy. Tenn. Valley Auth. v. Hill,
437 U.S. 153, 194-95 (1978) ("Our individual appraisal of the wis-
dom or unwisdom of a particular course consciously selected by the
Congress is to be put aside in the process of interpreting a statute.").
This policy, in essence, is that after exhausting multiple levels of
administrative review an alien is to be removed while his petition
before this court is pending, unless he satisfies the demanding stan-
dard of § 1252(f)(2).4
II
Having concluded that § 1252(f)(2) governs motions to stay
removal, we are left to determine only whether Teshome satisfies its
standard. To do so, Teshome must show "by clear and convincing evi-
dence" that her removal is "prohibited as a matter of law."5 We easily
conclude that Teshome has not met this standard. While Teshome
argues that she would be subject to persecution upon her return to
Ethiopia, we review the BIA’s conclusions on this issue under the
highly deferential substantial evidence standard. Rusu v. INS, 296
F.3d 316, 325 n.14 (4th Cir. 2002) (noting we can overturn factual
findings "only if the evidence presented by the petitioner was so com-
pelling that no reasonable factfinder could fail to find the requisite
fear of persecution"). Based on the record before us, we cannot find
Teshome has demonstrated by clear and convincing evidence that the
BIA would be compelled to conclude she would be subject to perse-
4
We note that because the Government ultimately has the authority and
responsibility to execute a final order of removal, it may choose not to
remove an alien from the country before or after he has exhausted all
avenues of judicial review. See generally 8 C.F.R. § 241.6(a) (providing
that Government has discretion to stay removal administratively upon
request of alien); Moussa v. Jenifer, 389 F.3d 550, 553-54 (6th Cir.
2004) (discussing Government’s authority to execute removal order and
discretion to stay execution thereof).
5
While a clear-and-convincing standard typically applies in the context
of questions of fact, it can be applied here to a question of law by simply
requiring that Teshome show that her removal is clearly (as opposed to
probably or more likely than not) prohibited as a matter of law. See
Weng, 287 F.3d at 1340.
TESHOME-GEBREEGZIABHER v. MUKASEY 9
cution when returned to Ethiopia. As such, she cannot show that her
removal is prohibited as a matter of law.6
III
Accordingly, Teshome’s motion to stay removal is
DENIED.
6
Although the Government agrees with our view of the law and the
facts, it nonetheless states it does not oppose Teshome’s motion to stay.
Of course, we must faithfully apply the law notwithstanding the Govern-
ment’s position, but it appears the Government would be more consistent
if it opposed the issuance of a stay if it believes the alien does not qualify
for such relief under § 1252(f)(2).