PUBLISHED
Filed: October 30, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ESKEDAR TESHOME-GEBREEGZIABHER,
Petitioner,
v.
No. 08-1060
MICHAEL B. MUKASEY, Attorney
General,
Respondent.
ORDER
Petitioner filed a petition for rehearing and rehearing en
banc. Respondent filed a response.
The panel voted to deny panel rehearing.
A member of the Court requested a poll of the Court on the
petition for rehearing en banc. Chief Judge Williams, Judge
Wilkinson, Judge Niemeyer, Judge Traxler, Judge Shedd,
Judge Duncan, and Judge Agee voted to deny the petition for
rehearing en banc. Judge Michael, Judge Motz, Judge King,
and Judge Gregory voted to grant the petition for rehearing en
banc.
The Court denies the petition for rehearing and rehearing
en banc.
Judge Shedd wrote an opinion concurring in the denial of
rehearing en banc, in which Chief Judge Williams joins.
Judge Michael wrote an opinion dissenting from the denial of
2 TESHOME-GEBREEGZIABHER v. MUKASEY
rehearing en banc, in which Judge Motz, Judge King, and
Judge Gregory join.
For the Court
/s/ Patricia S. Connor
Clerk
SHEDD, Circuit Judge, concurring in the denial of rehearing
en banc:
Relying on the plain language of 8 U.S.C. § 1252(f)(2), and
supported by the clear congressional purpose underlying the
Illegal Immigration Reform and Immigrant Responsibility Act
("IIRIRA"),1 and with full recognition of the importance of
the issue, the panel in this case unanimously concluded—after
oral argument and careful deliberation—that an alien who has
been ordered removed from the United States must show by
clear and convincing evidence that entry or execution of the
order of removal is prohibited as a matter of law in order to
"stay" (i.e., stop) the removal. See Teshome-Gebreegziabher
v. Mukasey, 528 F.3d 330 (4th Cir. 2008). In reaching this
decision, the panel rejected Teshome’s argument that our tra-
ditional circuit test for preliminary injunctive relief must be
used. As the author of the panel opinion, I believe that it is
correct for the reasons stated therein, and I therefore join in
the Court’s decision to deny the petition for rehearing en
banc. Although I recognize that the panel opinion itself speaks
for the Court and any elaboration that I add at this stage of the
proceedings does not, I now write to respond to Judge
Michael’s opinion dissenting from the denial of rehearing en
1
We recently noted in William v. Gonzales, 499 F.3d 329, 332 n.3 (4th
Cir. 2007), that "one of IIRIRA’s aims is to expedite the removal of aliens
from the country while permitting them to continue to seek review of their
removal orders from abroad." See also Appiah v. U.S. Immigr. & Natur-
aliz. Serv., 202 F.3d 704, 707 (4th Cir. 2000) (noting that in enacting
IIRIRA Congress "aimed to expedite the removal of deportable aliens and
to limit discretionary relief").
TESHOME-GEBREEGZIABHER v. MUKASEY 3
banc. I do so because he has raised several arguments that
were considered by the panel but were not then necessary for
extended discussion given the panel’s unanimity.
Underlying the panel decision is its conclusion that a
request for a "stay" of removal is, in essence, a request for
injunctive relief and, therefore, such a request falls squarely
within § 1252(f)(2)’s limitation of the courts’ power to enjoin
the removal of aliens. That section provides: "Notwithstand-
ing any other provision of law, no court shall enjoin the
removal of any alien pursuant to a final order under this sec-
tion unless the alien shows by clear and convincing evidence
that the entry or execution of such order is prohibited as a
matter of law." Judge Michael primarily takes issue with this
conclusion by arguing that the panel’s interpretation "finds lit-
tle support in either history or usage." Post at 10.
Judge Michael’s position is refuted by the authorities cited
in the panel opinion that show the often synonymous nature
of stays and injunctions. See Teshome-Gebreegziabher, 528
F.3d at 333. Perhaps most notable among those authorities is
the Anti-Injunction Act (28 U.S.C. § 2283), in which Con-
gress mandated that except in certain circumstances "[a] court
of the United States may not grant an injunction to stay pro-
ceedings in a State court . . . ." (emphasis added). Judge
Michael’s position is further refuted by precedent in this cir-
cuit in which he joined. See Gilliam v. Foster, 61 F.3d 1070,
1074 (4th Cir. 1995) (en banc) (issuing a "stay" to "enjoin" a
state criminal proceeding). Moreover, for what it is worth, I
note that even some of the circuits that have interpreted
§ 1252(f)(2) in the manner Judge Michael advocates have
since expressly equated stays and injunctions. See, e.g.,
Kijowska v. Haines, 463 F.3d 583, 589 (7th Cir. 2006) (noting
that a stay "is a form of injunction"); United States v. Orr
Water Ditch Co., 391 F.3d 1077, 1081 (9th Cir. 2004) (noting
that "the stay order was the functional equivalent of a prelimi-
nary injunction"). Thus, contrary to Judge Michael’s position,
4 TESHOME-GEBREEGZIABHER v. MUKASEY
there is a wealth of support for the panel’s equating the terms
"stay" and "injunction."
This is not to say that every stay is also an injunction.
There is, for example, a narrow type of stay by which a court
holds its own proceedings in abeyance. In that situation, the
court may issue a "stay," but it does not "enjoin" itself.2 How-
ever, in the circumstances of this case, the alien is not asking
the Court to stop its own proceedings; instead, the alien is
asking the Court to stop the Government (i.e., a litigant in the
proceedings) from removing him from the country. In that
respect, the alien’s request fits neatly within the Black’s Law
Dictionary definition of injunction cited by Judge Michael:
that is, "[a] judicial process operating in personam, and
requiring a person to whom it is directed to . . . refrain from
doing a particular thing." See post at 11.
To better understand why a "stay" in this context is an
injunction, it is important to understand how pre-IIRIRA
removal orders were handled. Before IIRIRA, an alien facing
removal typically received an automatic stay of the removal
order when he sought appellate review on the merits of his
case. However, when there was no automatic stay, and the
alien asked the appellate court to stop his removal, the courts
treated such a request as a request for preliminary injunctive
relief. See generally Weng v. U.S. Attorney General, 287 F.3d
1335, 1336-38 (11th Cir. 2002). That standard for preliminary
2
For this reason, Judge Michael’s reliance on Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271 (1988), is misplaced. There, the
Court considered the nature of stays and injunctions in the context of inter-
locutory appeals and held that "orders granting or denying stays of ‘legal’
proceedings on ‘equitable’ grounds are not automatically appealable"
under 28 U.S.C. § 1292(a)(1). 485 U.S. at 287. It is clear that the Court
was addressing the narrow class of stays involving a court’s decision to
hold its own proceedings in abeyance. Indeed, the Court noted that not-
withstanding its ruling, § 1292(a)(1) would "continue to provide appellate
jurisdiction over orders that . . . have the practical effect of granting or
denying injunctions. . . ." 485 U.S. at 287-88 (emphasis added).
TESHOME-GEBREEGZIABHER v. MUKASEY 5
injunctive relief continues to be applied by the courts that
reject the § 1252(f)(2) standard. That is, those courts that hold
that a "stay" is not an "injunction" nonetheless employ their
standard for preliminary injunctive relief in deciding whether
to stop an alien’s removal. By doing so, those courts signal
that they understand aliens facing agency-ordered removal are
seeking injunctive relief when they ask for a stay. No one can
seriously suggest that an alien facing removal who asks for a
"stay" would be treated differently than another similarly situ-
ated alien who seeks an "injunction" to prevent his removal.
Of course, the courts would treat them both as seeking the
identical relief — stopping the Government from removing
them.3
Judge Michael also argues that the "structure and language"
of § 1252 support the conclusion that Congress did not intend
§ 1252(f)(2) to apply in this context. Post at 12. I disagree.
The fact that § 1252(b)(3)(B) uses the term "stay," while
§ 1252(f)(2) does not, adds no support to his argument. Sec-
tion 1252(b)(3)(B) uses the word "stay" merely to reflect the
terminology given to this injunctive relief pre-IIRIRA. See
Weng, 287 F.3d at 1339-40 n. 8 ("The word ‘stay’ in
§ 1252(b)(3)(B) simply echoes the terminology used in the
pre-IIRIRA statute concerning automatic stays which this sec-
tion overturns . . ."). This is the same functional relief —
injunctive relief — the removable alien seeks post-IIRIRA,
and for such relief, the statute offers only one standard — that
found in § 1252(f)(2).
Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471 (1999), does not aid Judge Michael’s argument.
In rejecting the Ninth Circuit’s holding that § 1252(f) operates
3
Certainly, an alien could seek both types of relief in the same case; that
is, he could ask the court to stop the Government from removing him, and
at the same time ask the court to stay — or hold in abeyance — its own
merit review proceedings. His first request is for injunctive relief; his sec-
ond is for a stay.
6 TESHOME-GEBREEGZIABHER v. MUKASEY
as a grant of jurisdiction, the Reno Court noted the unremark-
able proposition that the section "is nothing more or less than
a limit on injunctive relief [that] prohibits federal courts from
granting classwide injunctive relief against the operation of
§§ 1221-1231, but specifies that this ban does not extend to
individual cases." 525 U.S. at 481-82. Nothing in that state-
ment is at all inconsistent with the panel decision that applies
§ 1252(f)(2) in the context of this case — that is, an individ-
ual alien seeking injunctive relief.4
Judge Michael also makes several arguments, reflected in
opinions from other circuits, which are not really arguments
against the § 1252(f)(2) standard but, instead, are arguments
against any standard other than an automatic stay. For exam-
ple, Judge Michael complains that application of the
§ 1252(f)(2) standard will lead to a decision being made with-
out a full administrative record and will cause aliens to be
removed while their cases are pending even if their petition
for review ultimately would be successful. See post at 15. Of
course, absent an automatic stay, which Congress has
expressly eliminated, see 8 U.S.C. § 1252(b)(3)(B), those
concerns will be present under any standard that is faithfully
applied (unless one presumes that all requests for stays under
the traditional injunctive relief standard will be granted).5
4
Those courts that reject § 1252(f)(2) as the proper standard must find
some purpose for this language, and they do so by reading § 1252(f)(2) in
a manner that is limited to injunctive relief involving constitutional viola-
tions and legal errors. However, such a reading simply ignores the plain
language of the statute. Section 1252(f)(2) is very clear: "No court shall
enjoin [removal] . . . unless the entry or execution of such order is prohib-
ited as a matter of law." (emphasis added). This language clearly addresses
the standard when an individual seeks relief from an order of removal,
which is precisely the issue before us.
5
As the Ninth Circuit recently noted, the Government’s frequent lack of
opposition to motions to stay removal inevitably, and improperly, leads to
a de facto automatic stay because courts in that instance "summarily fail
to consider the motions." Rivera v. Mukasey, 508 F.3d 1271, 1278 (9th
Cir. 2007).
TESHOME-GEBREEGZIABHER v. MUKASEY 7
Judge Michael also argues that the stringent standard of
§ 1252(f)(2), if met, would make superfluous a normal merit
review by the court. See post at 15. However, this is simply
incorrect, as a recent case in this circuit illustrates. In Fernan-
dez v. Keisler, No. 06-2209 (4th Cir.), I voted to stay removal
under the § 1252(f)(2) standard because it appeared that the
petitioner’s removal was prohibited by our opinion in United
States v. Morin, 80 F.3d 124 (4th Cir. 1996). The stay of
removal was thereafter granted. However, after briefing and
oral argument, I agreed with Chief Judge Williams that Morin
did not control the outcome of the case, and I therefore joined
the panel opinion denying relief. See Fernandez v. Keisler,
502 F.3d 337 (4th Cir. 2007), cert. denied sub nom. Fernan-
dez v. Mukasey, 2008 Westlaw 1981811 (U.S. Oct. 6, 2008).
Finally, Judge Michael argues that the panel opinion will
lead to "non-uniform application of the immigration laws."
See post at 9. In light of the fact that there exists a circuit split,
there is already non-uniform application of this law. In any
event, the only sure way to achieve uniformity in this area is
for the circuit courts to apply § 1252(f)(2), which is the only
standard mandated by Congress, rather than their individual
tests for injunctive relief, which can vary from circuit to cir-
cuit.
In closing, I note that the Supreme Court has "‘long recog-
nized the power to expel or exclude aliens [is] a fundamental
sovereign attribute exercised by the Government’s political
departments largely immune from judicial control.’" Fiallo v.
Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v.
Mezei, 345 U.S. 206, 210 (1953)). Moreover, "in the exercise
of its broad power over immigration and naturalization, ‘Con-
gress regularly makes rules that would be unacceptable if
applied to citizens.’" Fiallo, 430 U.S. at 792 (quoting
Mathews v. Diaz, 426 U.S. 67, 80 (1976)). Although the
§ 1252(f)(2) standard is a high one, it is not insurmountable,
and even in those cases in which the alien cannot meet the
standard, the denial of the stay will not necessarily lead to the
8 TESHOME-GEBREEGZIABHER v. MUKASEY
purported "unjust results" to which Judge Michael alludes.
See post at 9. By the time an asylum or withholding case
comes before the circuit court of appeals in the context of
review of a removal order, the application for relief has typi-
cally been considered in multiple levels of adjudication. Fur-
thermore, the "theme" of IIRIRA is "protecting the
Executive’s discretion from the courts," Reno, 525 U.S. at
486, and the Attorney General maintains the discretion to
allow an alien to remain in the country until he has exhausted
all avenues of judicial review, see Teshome-Gebreegziabher,
528 F.3d at 334 n.4, which he frequently exercises in the
alien’s favor, see Opposition to Pet. for Rehearing and
Rehearing En Banc, at 10. However, regardless of how the
Attorney General exercises this discretion, Congress clearly
limited the courts’ discretion, and we are bound to follow that
directive.
For the reasons set forth in the panel opinion, as well as the
foregoing, I concur in the Court’s decision to deny the peti-
tion for rehearing en banc.
Chief Judge Williams joins this concurring opinion.
MICHAEL, Circuit Judge, dissenting from the denial of
rehearing en banc:
I respectfully dissent from the court’s refusal to rehear this
case en banc. The panel opinion adopts an incorrect standard
for granting the stay of an order of removal pending consider-
ation of an alien’s petition for review. The opinion misapplies
8 U.S.C. § 1252(f)(2), which provides a heightened standard
for granting injunctions against the operation of immigration
laws, to stays of removal. The panel’s approach has been
soundly rejected by eight other circuits. See 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);
TESHOME-GEBREEGZIABHER v. MUKASEY 9
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). But see Weng v. U.S. Att’y
Gen., 287 F.3d 1335 (11th Cir. 2002). The panel opinion con-
flicts with the language and structure of § 1252 and will
create peculiar results. Because the opinion will lead to non-
uniform application of the immigration laws and to unjust
results in our circuit, this issue is of exceptional importance
and warranted reconsideration by our full court. Fed. R. App.
P. 35; see Kenyeres v. Ashcroft, 538 U.S. 1301, 1305 (2003)
(Kennedy, J., in chambers).
Before 1996 most aliens who petitioned for review of an
order of removal were entitled to an automatic stay of
removal pending review. See Tesfamichael, 411 F.3d at 171
(citing 8 U.S.C. § 1105a(a)(3) (repealed in 1996)). However,
in 1996 Congress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), which eliminated
automatic stays in a provision stating that "[s]ervice of the
petition [for review] 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 otherwise." 8 U.S.C.
§ 1252(b)(3)(B). This provision does not, however, provide
the standard by which a stay may be ordered.
The panel opinion erroneously relies on 8 U.S.C.
§ 1252(f)(2) to provide the standard for granting a stay. Sec-
tion 1252(f) provides:
(f) Limit on injunctive relief
(1) In general
Regardless of the nature of the action or
claim or of the identity of the party or par-
ties bringing the action, no court (other than
the Supreme Court) shall have jurisdiction
or authority to enjoin or restrain the opera-
10 TESHOME-GEBREEGZIABHER v. MUKASEY
tion of the provisions of part IV of this sub-
chapter . . . other than with respect to the
application of such provisions to an individ-
ual 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 an alien . . . unless the
alien shows by clear and convincing evidence that
the entry or execution of [the removal] order is pro-
hibited as a matter of law.
The panel opinion reaches its conclusion by interpreting the
term "enjoin" in subsection (f)(2) to encompass stays.
Teshome-Gebreegziabher v. Mukasey, 528 F.3d 330, 333 (4th
Cir. 2008). According to the opinion, this interpretation is
based on "the plain meaning of the text." Id.
The panel opinion’s interpretation finds little support in
either history or usage. The Supreme Court expressly refused
to equate injunctions and stays in Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271 (1988), which held
that the two remedies are different for the purposes of an
interlocutory appeal. Id. at 279-88; see also Andreiu, 253 F.3d
at 483. Similarly, the Federal Rules of Appellate Procedure
distinguish between stays and injunctions, especially in the
context of reviewing agency decisions. See Fed. R. App. P. 8,
18; see also Tesfamichael, 411 F.3d at 174.
Nonetheless, the panel opinion relies on a phrase in the
sixth edition Black’s Law Dictionary (current at § 1252(f)’s
enactment) to assert that a stay "is a ‘kind of injunction’
directed at a judicial case or proceedings within it." Teshome,
528 F.3d at 333 (quoting Black’s Law Dictionary 1413 (6th
ed. 1990)). That edition of Black’s defined "stay" as:
TESHOME-GEBREEGZIABHER v. MUKASEY 11
A stopping; the act of arresting a judicial proceed-
ing by the order of a court. Also that which holds,
restrains, or supports.
A stay is a suspension of the case or some desig-
nated proceedings within it. It is a kind of injunction
with which a court freezes its proceedings at a par-
ticular point.
Black’s Law Dictionary 1413 (6th ed. 1990); see also Black’s
Law Dictionary 1453 (8th ed. 2004) (retaining the operative
portion of the definition of "stay," but dropping the passing
reference to injunctions). In contrast, "injunction" was defined
in the sixth edition as "[a] court order prohibiting someone
from doing some specified act or commanding someone to
undo some wrong or injury." Black’s Law Dictionary 784 (6th
ed. 1990). This definition then listed ten types of injunctions;
"stay" is conspicuously missing from this list. Id.; see also
Black’s Law Dictionary 800 (8th ed. 2004) (listing seventeen
types of injunctions without mentioning stays). Black’s fur-
ther refutes the panel opinion’s position by explaining that an
injunction is "[a] judicial process operating in personam, and
requiring a person to whom it is directed to do or refrain from
doing a particular thing." Black’s Law Dictionary 784 (6th ed.
1990); see also Black’s Law Dictionary 800 (8th ed. 2004)
("In 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 perso-
nam . . . ." (internal quotation marks omitted)). Black’s thus
explains that injunctions are specifically directed at parties,
while stays are directed at proceedings or courts; neither term
is subsumed by the other. See Tesfamichael, 411 F.3d at 173-
74 ("While an injunction is relief obtained through indepen-
dent litigation and directed at a particular party, not a tribunal,
a stay is a mechanism intrinsic to judicial review"); Andreiu,
253 F.3d at 482-83.
The basic difference between a stay and an injunction is
confirmed by the petitioner’s request in this case. According
12 TESHOME-GEBREEGZIABHER v. MUKASEY
to the panel opinion, the petitioner "filed a motion [with this
court] to stay her removal pending resolution of her petition
for review." Teshome, 528 F.3d at 331. Her motion thus dem-
onstrates that "a stay is a mechanism intrinsic to judicial
review." Tesfamichael, 411 F.3d at 173-74. She simply asked
us to suspend the operation of her removal order while we
considered her petition. If we had agreed to the petitioner’s
request, a simple stay would have done the job. It would not
have been necessary for us to enjoin or restrain the Attorney
General of the United States (the named respondent) individu-
ally. To turn a stay into an injunction in these circumstances
is overkill, and it depreciates the traditional force of a simple
stay, which assumes automatic respect for our orders without
the need for formal restraint or prohibition of individual par-
ties.
The structure and language of § 1252 confirm that Con-
gress meant to distinguish between the terms "stay" and "in-
junction" when it enacted IIRIRA. For instance, Congress
used the term "stay" when it eliminated automatic stays pend-
ing appeal in § 1252(b)(3)(B). This provision does not use the
word "enjoin," and it does not refer to § 1252(f)(2). Section
1252(f), on the other hand, refers only to injunctions with no
mention of stays. Furthermore, the heading of § 1252(f)
(which Congress crafted as part of the bill) describes the sec-
tion as a "[l]imit on injunctive relief." As the Supreme Court
has explained, "By its plain terms, and even by its title,
[§ 1252(f)] is nothing more or less than a limit on injunctive
relief." Reno v. Am.-Arab Anti-Discrimination Comm.
(AAADC), 525 U.S. 471, 481-82 (1999); see also Andrieu,
253 F.3d at 481.
Congress chose its words carefully when it drafted IIRIRA,
and it clearly differentiated between stays and injunctions in
the statute. We must, of course, interpret the terms used by
Congress according to their specific meaning. As the Seventh
Circuit has noted, "treating a rule addressed to ‘injunctions’
as covering ‘stays’ would impoverish the language and make
TESHOME-GEBREEGZIABHER v. MUKASEY 13
the legislative task more difficult" because "[o]ur legal vocab-
ulary contains distinct words for distinctive judicial actions."
Hor, 400 F.3d at 484. Indeed, the panel opinion’s interpreta-
tion renders all of § 1252(b)(3)(B) superfluous, contradicting
the established principle that "[s]tatutes must be interpreted
. . . to give each word some operative effect." See Walters v.
Metro. Educ. Enters., 519 U.S. 202, 209 (1985); Virginia v.
Browner, 80 F.3d 869, 877 (4th Cir. 1996). If § 1252(f)(2)
means that a court may not issue a stay unless the alien shows
that removal is "prohibited as a matter of law," it would have
been entirely pointless for Congress to state in
§ 1252(b)(3)(B) that stays are not automatic. See Tesfamich-
ael, 411 F.3d at 175-76.
The panel opinion takes the position that § 1252(f)(2) must
apply to stays because the provision has no other sensible pur-
pose. This is not the case. As the Supreme Court has
explained, § 1252(f) "prohibits federal courts from granting
classwide injunctive relief against the operation of §§ 1221-
1231, but specifies that this ban does not extend to individual
cases." AAADC, 525 U.S. at 481-82. Specifically,
§ 1252(f)(2) provides the standard for adjudicating individual
challenges that seek to enjoin the operation of the immigra-
tion laws on the grounds of constitutional or other legal defi-
ciencies; it explains that the alien will only succeed on such
a claim if he can demonstrate "by clear and convincing evi-
dence" that the operation of the statute in his case "is prohib-
ited as a matter of law." § 1252(f)(2). This purpose logically
fits within the structure of the statute: "Subsection (f)(1) for-
bids injunctive class actions, and subsection (f)(2) sets a high
standard for injunctive relief at retail." Hor, 400 F.3d at 483.
The legislative history of § 1252(f) further supports this
view. Without mentioning stays, the House Report explains
the purpose of § 1252(f)’s limit on injunctive relief:
[C]ourts may issue injunctive relief pertaining to the
case of an individual alien, and thus protect against
14 TESHOME-GEBREEGZIABHER v. MUKASEY
any immediate violation of rights. However, single
district courts or courts of appeal do not have author-
ity to enjoin procedures established by Congress to
reform the process of removing illegal aliens from
the U.S.
H.R. Rep. 104-469(I), at 161 (1996); see Andreiu, 253 F.3d
at 481 n.1. The legislative history confirms that "[t]he clear
concern of [§ 1252(f)] is limiting the power of courts to
enjoin the operation of the immigration laws, not with stays
of removal in individual asylum cases." Andreiu, 253 F.3d at
481.
The panel opinion further posits that failure to apply the
§ 1252(f)(2) standard to stays "runs afoul of the express pol-
icy" of IIRIRA, "which vested much discretion in the Execu-
tive." Teshome, 528 F.3d at 334. However, in enacting
§ 1252(b)(3)(B), Congress clearly eliminated automatic stays
for aliens with pending petitions for review. This change
alone, which grants the executive discretion to remove an
alien where none previously existed, is consistent with the
policies of IIRIRA. Taking the additional step of applying the
§ 1252(f)(2) standard to stays is not necessary to carry out
congressional intent. See Arevalo, 344 F.3d at 9. Indeed, in
AAADC the Supreme Court rejected an interpretation of
§ 1252 that would broadly restrict judicial power. AAADC,
525 U.S. at 482. Instead, the Court narrowly construed the
statute’s terms. Id. (emphasizing "the need for precision in
legislative drafting"). The panel opinion is inconsistent with
the Supreme Court’s careful approach in AAADC. See
Arevalo, 344 F.3d at 8 ("[R]eading [§ 1252(f)(2)] in a more
circumspect manner follows the path demarcated by the
Supreme Court in [AAADC], in which the Court indicated that
[§ 1252(f)(2)] should be construed narrowly . . . ."); Andreiu,
253 F.3d at 481-82.
Finally, applying the § 1252(f)(2) standard to stays leads to
results that are at best peculiar and at worst quite troubling.
TESHOME-GEBREEGZIABHER v. MUKASEY 15
The panel opinion imposes a more stringent standard on an
alien seeking a stay than that required for the alien to succeed
on the merits. See Tesfamichael, 411 F.3d at 175. It thus
requires an alien to litigate the merits at the motion stage,
often before he (or the court) even has access to the adminis-
trative record. See Andreiu, 253 F.3d at 482. In the rare case
where a stay is granted, the standard renders a merits hearing
superfluous, because the stay decision will "essentially dupli-
cate the decision on the merits." Id. Furthermore, an alien
could be removed under the standard for a stay even if his
challenge would be successful on the merits. Section
1252(f)(2)’s requirement that the removal be clearly "prohib-
ited by law" also means that an alien presenting a meritorious
issue of first impression or challenging a substantial evidence
determination can never be granted a stay, a result that "run[s]
counter to [§ 1252(b)(3)(B)]’s allowance for such stays by
court order." Tesfamichael, 411 F.3d at 173 (citing Hor, 400
F.3d at 483).
While an alien may litigate after removal, this right is
meaningless if the alien is removed to a country where he will
be tortured, jailed, or otherwise harmed. See Hor, 400 F.3d at
485. Barring meaningful access to the courts is especially
troubling in the cases where the alien would succeed on the
merits. See Kenyeres, 538 U.S. at 1305. Of course, any dis-
comfort with this result would carry little weight in the face
of a clear directive from Congress. But there is no such direc-
tive here.
As Justice Kennedy has noted, the standard governing stays
of removal "is important" and warrants careful consideration.
Kenyeres, 538 U.S. at 1305. Eight circuits, in carefully rea-
soned opinions, have held that 8 U.S.C. § 1252(f)(2) does not
apply to stays pending appeal of removal orders. The panel
opinion adopts a contrary rule, joining only one other circuit,
without refuting many of the compelling counter-arguments
presented by the other circuits. For these reasons, and for the
16 TESHOME-GEBREEGZIABHER v. MUKASEY
reasons outlined by the other circuits, I respectfully dissent
from the denial of rehearing en banc.
Judge Motz, Judge King, and Judge Gregory join this dis-
sent.