United States Court of Appeals
Fifth Circuit
F I L E D
In the May 24, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-61180
_______________
SENAIT KIDANE TESFAMICHAEL; DAWIT TESSEMA-DAMTE,
Petitioners,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
Before DAVIS, SMITH, and DENNIS, I.
Circuit Judges. The petitioners are a married couple seek-
ing asylum in the United States. He, Dawit, is
JERRY E. SMITH, Circuit Judge: Ethiopian and she, Senait, was born in Ethio-
pia but is ethnically Eritrean. In the late
Petitioners Senait Kedane Tesfamichael and 1990’s, the uneasy situation between Ethiopia
Dawit Tessema-Damte, seeking review of their and its former province, Eritrea, escalated to
requests for asylum, move this court for a stay war that involved mass deportations by both
of removal pending our consideration, on the governments.
merits, of their petition for review of the
decision of the Board of Immigration Appeals When the deportations began in 1998,
(“BIA”). We grant the motion for stay. fearing separation, the petitioners attempted to
leave Ethiopia together. Senait, the ethnically standard in use by the vast majority of the
Eritrean wife, was not allowed to leave. She circuits.
lacked the required government-issued docu-
ments, which she claims were unavailable to A.
her as an ethnic Eritrean. Before 1996, most aliens who were ordered
deported were entitled to a stay of their re-
When they were caught attempting to flee moval order pending review of that order.2
to Kenya, Dawit was charged with smuggling With the enactment of the Illegal Immigration
Eritreans illegally and was released pending Reform and Immigrant Responsibility Act of
trial. Senait was released only after a guard 1996 (“IIRIRA”), however, one who is seek-
was bribed. Fearing persecution at trial be- ing review of a deportation order must ask the
cause he was married to an ethnic Eritrean, reviewing court for a stay of removal.3 The
and after experiencing some police harassment, statutory provision that repealed the automatic
Dawit fled the country. Senait was then imposition of a stay provides, “Service of the
expelled against her will from Ethiopia to Eri- petition on the officer does not stay the re-
trea. Her whole family, save a sister who was moval of an alien pending the court’s decision
allowed to emigrate to the United States via on the petition, unless the court orders other-
the visa lottery, was also expelled, one person wise.” Id. All the same, § 242(b)(3)(B) does
at a time. not specify the standard a court should use in
deciding whether to grant such a stay.
After a convoluted series of events includ-
ing a two year stay in Eritrea for Senait and a According to the government, that standard
brief reunion in South Africa, the two peti- is found in § 242(f)(2):
tioned for refugee status in the United States
by claiming past persecution and a well-found- Notwithstanding any other provision of
ed fear of future persecution. The immigration law, no court shall enjoin the removal of
judge (“IJ”) and the BIA denied the petition. any alien pursuant to a final order under
The government plans to deport Senait to this section unless the alien shows by clear
Eritrea and Dawit to Ethiopia. They seek and convincing evidence that the entry or
review of the BIA’s order and a stay of their execution of such order is prohibited as a
removal pending that review. matter of law.
II. INA § 242(f)(2), 8 U.S.C. § 1252(f)(2) (em-
Before directly addressing the request for a
stay, we must determine, importantly, what
1
standard governs that request. Neither the (...continued)
statutory text nor our caselaw provides an 1305 (2003) (Kennedy, J., denying stay and dis-
obvious guide. Although this court has yet to cussing the divers authorities).
weigh in on the subject, this question has split 2
See 8 U.S.C. § 1105a(a)(3) (repealed in
the courts of appeals.1 We now adopt the 1996); Arevalo v. Ashcroft, 344 F.3d 1, 6 (1st Cir.
2003).
1 3
See Kenyeres v. Ashcroft, 538 U.S. 1301, See Immigration and Nationality Act (“INA”)
(continued...) § 242(b)(3)(B), 8 U.S.C. § 1252(b)(3)(B).
2
phasis added). Consequently, the government As noted above, the Eleventh is the only
contends, courts may not issue a stay unless circuit expressly to hold that § 242(f)(2)’s
the alien shows the illegality of the removal “clear and convincing evidence” standard has
order by clear and convincing evidence. This supplanted the traditional preliminary injunc-
approach, although proffered by the govern- tion standard when considering requests for
ment in at least seven circuits, has been re- temporary stays. 6 That court, in Weng, con-
jected by six and embraced in a holding by cluded that IIRIRA had amended the standard
only one.4 for aliens to satisfy before federal courts could
temporarily stay their deportation.
The circuits that have rejected the govern-
ment’s position instead have adopted the Analyzing the statutory framework as a
standard that prevailed in this circuit before the whole, the Weng court first noted that § 242-
enactment of IIRIRA, when stays were (f)(1) precludes courts from enjoining,
discretionary. In Ignacio v. INS, 955 F.2d class-wide, the operation of certain sections of
295, 299 (5th Cir. 1992), we held that the the INA. Section 242(f)(2) goes on to explain
decision whether to grant a discretionary stay that no court shall “enjoin” the removal of any
of deportation would be based on the familiar individual alien except on a showing of clear
four-factor test applied to preliminary injunc- and convincing evidence that the removal is
tions: unlawful.7 The court noted that “enjoin”
(1) a likelihood of success on the merits; 5
(2) that irreparable harm would occur if a (...continued)
stay is not granted; (3) that the potential ponderance of the evidence and proof beyond a
reasonable doubt’”)). The government argues, in
harm to the [alien] outweighs the harm to
summary fashion, that the “clear and convincing
the [government] if a stay is not granted;
evidence” standard found in § 242(f)(2) and adopt-
and (4) that the granting of the stay would ed by the Eleventh Circuit controls here as well.
serve the public interest.
Missing from the government’s discussion is a
Id. This standard is patently less demanding detailed refutation of the nuanced and reasonably
on petitioners than is the “clear and convincing persuasive arguments relied on by the other circuits
evidence” standard urged by the government.5 that have rejected the position. The government’s
cursory discussion of the controlling standard is
more than can be said for the petitioners’ brief,
4
See Weng v. U.S. Attorney Gen., 287 F.3d however, which assumes that the old, four-factor
1335, 1337 (11th Cir. 2002). But see Bon- test is still in use and does not even address the
homme-Ardouin v. U.S. Attorney Gen., 291 F.3d applicability of § 242(f)(2).
1289, 1290 (11th Cir. 2002) (Barkett, J., concur-
6
ring) (calling for en banc reconsideration of Weng). In dictum, a panel of the Fourth Circuit indi-
cated it would agree with the government’s posi-
tion. See Ngarurih v. Ashcroft, 371 F.3d 182, 195
5
See Weng, 287 F.3d at 1337; Kenyeres, 538 n.13 (4th Cir. 2004).
U.S. at 1305 (citing Addington v. Texas, 441 U.S.
7
418, 425 (1979) (“The ‘intermediate standard of As Judge Easterbrook puts it, “Subsection
clear and convincing evidence’ lies ‘between a pre- (f)(1) forbids injunctive class actions and subsec-
(continued...) (continued...)
3
means “‘[t]o require; command; positively Congress’s “reference to the power to ‘enjoin’
direct. To require a person by writ of in- should be read as encompassing stays of
junction, to perform, or to abstain or desist removal as well.” Id. at 1339.
from, some act.’” Weng, 287 F.3d at 1338
(quoting BLACK’S LAW DICTIONARY 529 (6th The belief that Congress’s knowledge of
ed. 1990)). In comparison, “stay” is defined as current standards somehow broadens the
definition of “enjoin” is a non sequitur. Nev-
“[a] stopping; the act of arresting a judicial ertheless, the Weng court’s first conclusion,
proceeding by the order of a court. Also that the plain meaning of “enjoin” as used in §
that which holds, restrains, or supports. A 242(f)(2) encompasses courts’ issuances of
stay is a suspension of the case or some temporary stays, is persuasive. Other courts
designated proceedings within it. It is a that have wrestled with this question, how-
kind of injunction with which a court freez- ever, have employed equally compelling rea-
es its proceedings at a particular point . . . soning that runs counter to the government’s
.” position.
Id. (emphasis added by Weng court). Faced with this dilemma, the First, Second,
Third, Sixth, Seventh, and Ninth Circuits have
The Weng court thus concluded that the held that the IIRIRA does not impose the
“definitions and common usage” of the words “clear and convincing evidence” standard on
“enjoin” and “stay” demonstrate that “the plain requests for temporary stays.9 In the most
meaning of enjoin includes the grant of a stay.” recent iteration of that position, the Seventh
Id. The court also found that the inter- Circuit held that § 242(f)(2) does not supplant
changeability of the two words is further the traditional standard governing the issuance
supported by the frequent conflation of the of stays. Hor, 400 F.3d at 483. Writing for
two in other courts’ phraseology. Id. (citing, the court, Judge Easterbrook observed that, as
inter alia, NLRB v. Nash-Finch Co., 404 U.S. a practical matter, the adoption of the standard
138, 139-41 (1971)). urged by the government would render stays
of deportation almost impossible to obtain.
Observing that before the enactment of
IIRIRA courts considered requests for discre- Section 242(f)(2), according to the gov-
tionary stays under the same standard as that ernment, precludes the issuance of a stay
employed for requests for injunctive relief,8 the unless the alien demonstrates by clear and
Weng court reasoned that Congress’s passage convincing evidence that the deportation order
of IIRIRA was informed by knowledge of this “is prohibited by law.” Such a showing, how-
practice. Accordingly, Weng asserts that
9
See Hor, 400 F.3d at 485; Douglas v. Ash-
7 croft, 374 F.3d 230, 234 (3d Cir. 2004); Arevalo
(...continued)
tion (f)(2) sets a high standard for injunctive relief v. Ashcroft, 344 F.3d 1, 8-9 (1st Cir. 2003); Mo-
at retail.” Hor v. Gonzales, 400 F.3d 482, 483 hammed v. Reno, 309 F.3d 95, 99-100 (2d Cir.
(7th Cir. 2005). 2002); Bejjani v. INS, 271 F.3d 670, 687-89 (6th
Cir. 2001); Andreiu v. Ashcroft, 253 F.3d 477,
8
See, e.g., Ignacio, 955 F.2d at 299. 480-83 (9th Cir. 2001) (en banc).
4
ever, likely would be impossible for anyone decisionmaking and the “initial judicial tribunal
but a United States citizen or the holder of “a is a court of appeals.” Id. This historical
visa of unquestioned validity.” Id. Aliens who distinction is reflected in rule 18 of the Federal
contend that the IJ’s and BIA’s denial of relief Rules of Appellate Procedure, which rec-
was unsupported by substantial evidence, ognizes the peculiar nature of “stays” pending
however, would be unable to make such a appellate review of agency decisions. FED. R.
showing of illegality and thus would have no APP. P. 18. It is noteworthy that rule 18 no-
hope of obtaining a stay. Such a conclusion where uses the word “enjoin” or “injunction”
would run counter to § 242(b)(3)(B)’s al- but maintains the linguistic distinction by
lowance for such stays by court order. Id. discussing “stays”SSa peculiar procedural
medium. Id.
This observation certainly does not conclu-
sively demonstrate that the government’s po- Maintaining the formalistic distinction in
sition is wrong. Absent certain exceptional vocabulary, Judge Easterbrook explains, is
circumstances, e.g., an absurd result, we will necessary to empower Congress to phrase leg-
not ignore the plain language of a statute. If islation effectively. Hor, 400 F.3d at 484.
the Eleventh Circuit is correct, therefore, that Conflating the terms “injunctions” and “stays”
the plain language of § 242(f)(2) demands the “would impoverish the language and make the
result the government urges, the virtual im- legislative task more difficult.” Id. Strict
possibility that aliens like petitioners will adherence, on the other hand, to historical and
receive a stay will not counsel against that practical differences in meanings makes the
interpretationSSfor such a result is not neces- drafting of precise legislation more easily
sarily absurd. achievable.
A far more powerful refutation of the By contrast, treating a subsection that men-
Eleventh Circuit’s textual analysis concerns tions injunctions but not stays as covering
Weng’s conclusion that the word “enjoin” is both would force Congress to add provisos
unambiguously synonymous with “stay.” As each time it sought to regulate one but not
the Seventh Circuit acknowledges in Hor, 400 the other. Once a legal community devel-
F.3d at 484, “[c]ertainly there is a functional ops a stable nomenclature, it is best to ap-
overlap” of the twoSSboth can “stop an agen- ply it mechanically so that no one is taken
cy in its tracks.” Nonetheless, history and unawares, and so that drafting can be un-
usage counsel that the two words carry differ- cluttered by provisos . . . .
ent legal meanings, particularly where federal
agencies are involved. Though an injunction is . . .[A]pplying established legal distinc-
relief obtained through independent litigation tions gives Congress a formulary: it can
and directed at a particular party, not a achieve one result by using a particular
tribunal, a stay is a mechanism intrinsic to word or phrase, a different result with a
judicial review. Id. different phrase.
A court of appeals, just as it may stay a dis- Id. at 484-85. Interpreting the word “enjoin”
trict court’s order, may stay an agency’s deci- narrowly so as to exclude “stays” is advisable
sion where the agency is the forum of initial “[n]ot because Congress is too unpoetic to use
5
synecdoche, but because that literary device is legislate on the issue of stays, as it did when it
incompatible with the need for precision in repealed the imposition of the automatic stay
legislative drafting.” Reno v. Am.-Arab Anti- pending appeal in subsection (b)(3)(B), it used
Discrimination Committee, 525 U.S. 471, 482 the word “stay.” As the Second Circuit
(1999) (interpreting a different subsection of observed, “If Congress wanted to apply a
§ 242). heightened standards to a stay pending appeal,
it would likely have used the word ‘stay’ in
There are other reasons for not assuming subsection 242(f)(2) instead of ‘enjoin’ . . . .”
that subsection (f)(2)’s use of “enjoin” was Mohammed, 309 F.3d at 99.
meant to include stays. Subsection (b)(3)(B)’s
abolition of the automatic stay specifically The practical consequence of adopting the
indicates that stays may still be available. INA government’s position also counsels in favor
§ 242(b)(3)(B), 8 U.S.C. § 1252(b)(3)(B). of rejecting that position. Imposing on peti-
This provision, consequently, would have been tioners the “clear and convincing evidence”
the natural place to locate an amendment to standard of subsection (f)(2) would, as Judge
the operative standard governing their Selya described it, “necessitate full deliberation
issuance, but no such standard is found. on the merits of the underlying case and, in the
Rather than merely indicating that “such bargain, require the alien to carry a burden of
stays shall be issued when the standard laid out proof higher than she would have to carry on
in subsection (f)(2) has been met,” the the merits.” Arevalo, 344 F.3d at 8.
provision is silent on the matter. Such silence, The instant petition for review, far from re-
however, can be deafening.10 Hesitating to quiring clear and convincing evidence of ille-
make such an interpretive leap as urged by the gality to be successful, will be granted should
government is consistent with the Supreme this court ultimately decide, on a de novo mer-
Court’s admonition that § 242 should be its review, that the BIA erred in its legal con-
construed narrowly. See Am.-Arab Anti-Dis- clusions. See Lopez-Gomez v. Ashcroft, 263
crimination Committee, 525 U.S. at 482. F.3d 442, 444 (5th Cir. 2001). Convinced that
Congress could not have intended this “Kafka-
Not only does subsection (b)(3)(B) not esque” result, the First Circuit held that sub-
reference subsection (f)(2)’s supposedly higher section (f)(2) does not apply to requests for
applicable standard, but the two provisions temporary stays. Id. Although we do not nec-
employ different vocabulary. That is, although essarily agree with Judge Selya’s contention
the Weng court is correct that a dictionary that such a result renders the statute “absurd,”
definition of “enjoin” can encompass a “stay,” it is strong evidence that the intent of Con-
Congress chose to use different words in gress was otherwise. Id.
different sections. When Congress wished to
Similarly, the Seventh Circuit highlighted
another potential anomaly that would flow
10
See Hor, 400 F.3d at 484; Arevalo, 344 F.3d from the adoption of the government’s posi-
at 8 (citing In re Qualitech Steel Corp., 327 F.3d tion. See Hor, 400 F.3d at 485. In contrast to
537, 548 (7th Cir. 2003) (counseling that courts the potential mootness effects that pre-IIRIRA
should not “interpolate limitations from one statu- deportations yielded, current law allows a
tory section into a different section when the legis- petition for review to be considered even after
lature” did not so direct)).
6
an alien’s departure. The alien may then re- at 481. “If [§ 242(f)(2)] clearly means that
turn to the United States should he prevail on courts can only issue stays of deportation upon
appeal. See id. In cases such as the present a showing that the order was ‘prohibited as a
one, however, where petitioners are seeking matter of law,’ there would be no need to state
asylum based on a well-founded fear of perse- in [§ 242(b)(3)(B)] that stays are not auto-
cution, “[t]he ability to come back to the matic.” Id.
United States would not be worth much if the
alien has been maimed or murdered in the With due respect to the Eleventh Circuit,
interim.” Id. the better reading of § 242 of the INA is that
subsection 242(f)(2)’s “clear and convincing
Reading the relevant statutory provisions as evidence” standard does not apply to requests
the government contends yields just this sort for temporary stays of removal pending appel-
of peril. The results of such a construction are late review. Instead, the traditional test,
peculiar, at best, but “[t]here’s nothing absurd adopted by this court in Ignacio, 955 F.2d at
about reading [§ 242(b)(3)(B)] to permit 299, remains in force and governs the instant
courts to avert such harms.” Id. dispute. With the rule of decision so clarified,
we now turn to the merits of petitioners’
It is axiomatic that courts should strive to request for a stay.
give operative meaning to every word in a
statute. See, e.g., Walters v. Metro. Educ. III.
Enters., Inc., 519 U.S. 202, 209 (1997). As we have said, in the absence of legisla-
Accordingly, some courts have highlighted the tive guidance to the contrary, requests for
fact that although § 242(f)(2) employs the temporary stays of removal are considered in
word “enjoin,” the preceding subsection light of the degree to which four factors can be
discusses courts’ abilities to “enjoin or re- shown:
strain.” Andreiu, 253 F.3d at 480 (quoting
INA § 242(f)(1), 8 U.S.C. § 1252(f)(1)). (1) a likelihood of success on the merits;
Consequently, goes the argument, adopting (2) that irreparable harm would occur if a
the government’s position that subsection stay is not granted; (3) that the potential
(f)(2)’s use of “enjoin” encompasses all related harm to the [alien] outweighs the harm to
phrases such as “stay” would reduce Con- the [government] if a stay is not granted;
gress’s use of “restrain” in the previous sub- and (4) that the granting of the stay would
section to mere surplusage. serve the public interest.
Although that particular “mere surplusage” Id. The pet itioners’ motion papers make a
argument is not especially convincing (and it strong argument in favor of granting the stay.
would be stronger if the prior subsection used These showings are balanced only by the
“enjoin or stay” instead of “enjoin or re- government’s cursory refutations. Stays, like
strain”), a related argument is more powerful. other forms of preliminary relief, are consid-
The Ninth Circuit en banc court noted that if § ered without reaching a full adjudication on
242(f)(2) truly had t he effect that the gov-
ernment advances, all of subsection (b)(3)(B)
would be surplusage. See Andreiu, 253 F.3d
7
the merits.11 They are, in fact, usually issued There does not seem to be any support in
or denied without even full briefing on the the law, however, for the conclusion that the
merits.12 At this incipient stage, petitioners petitioners’ testimony, coupled with copies of
have made out a strong enough case to war- the operative sections of the Ethiopian consti-
rant relief in the form of a temporary stay of tution, is not sufficient to demonstrate the
removal pending our review on the merits of veracity of their marriage. This is especially so
their petition. given the IJ’s explicit recognition of the
credibility of the petitioners’ testimony.13
Although four factors are relevant to deter- There appears to be no tenet of law (to which
mining entitlement to a stay, the first (likeli- any party directs the court’s attention) that
hood of success on the merits) is arguably the requires any sort of expertise to testify to this
most important. See Shrink Mo. Gov’t PAC v. fact. Consequently, the BIA’s conclusion that
Adams, 151 F.3d 763, 764 (8th Cir. 1998). Dawit was not subject to persecution by Sen-
Because the instant petitioners can show a ait’s deportation because, in part, their mar-
significant likelihood of success on the merits, riage was not registered, was likely error.
therefore, their case is a particularly appropri-
ate one in which to issue a stay. An even more important point on which the
IJ and BIA seem to have erred involves
The IJ and the BIA ruled that petitioners Senait’s alleged resettlement in Eritrea. The
did not present documentary proof of Ethio- board found that she was not entitled to asy-
pian law that would have supported their lum based on any persecution in Ethiopia, for
assertion that Ethiopian law recognizes their she had firmly resettled in Eritrea. To the
marriage despite the fact that it has never been contrary, the evidence appears to be that she
formalized. Although they submitted copies of had no intention of ever remaining in Eritrea
provisions of the Ethiopian constitution to and only stayed there so long as was necessary
support their position, the IJ held that such to arrange onward travel. In point of fact, she
evidence was insufficient to demonstrate entered Eritrea only because she was forcibly
marriage because the petitioners did “not deported there (after being arrested for trying
show[] that they are experts in Ethiopian law.” to enter Kenya with Dawit), and was thereafter
The BIA parroted this line of reasoning when denied the ability to exit by the Eritrean gov-
it concluded that Dawit would not likely face ernment even though she had obtained a visa
future persecution because his marriage to to enter South Africa (where she would even-
Senait was not registered with the Ethiopian tually reunite with Dawit).
government.
The case the IJ and BIA cite in support of
the “firmly resettled” conclusion does little to
11
advance this finding. See Mussie v. INS, 172
See 11A CHARLES ALAN WRIGHT ET AL.,
F.3d 329, 331 (4th Cir. 1999). Although the
FEDERAL PRACTICE AND PROCEDURE § 2947, at
122 (2d ed. 2003).
12 13
That is all the more reason that the supposed See IJ opinion at 21 (calling their testimony
requirement that a petitioner show entitlement to “specific, forthright, internally consistent and es-
relief by “clear and convincing evidence” would be sentially consistent with the testimony of the other
anomalous. . . . .”).
8
BIA’s regulations state that where an applicant those cases have never involved a peculiar
for asylum entered a country as a necessary application of travel laws such that the viola-
consequence of her persecution and remained tive behavior was caused by the patent perse-
only as long as was necessary to arrange cution of the ethnicity of the asylum-seekers
onward travel, the case to which the BIA cites wife. It is not a compelled conclusion that
involved a situation in which there was no under the statute Dawit faces “persecution,” as
colorable argument that these requirements defined by the statute, for his violation of the
had been met. See 8 C.F.R. § 208.15; Mussie, travel laws. It is obvious, however, that the
172 F.3d at 331. In contrast to the present cases on which the BIA concluded that it was
case, where it is at least a close question not persecution are distinguishable on their
whether Senait remained only so long as was facts and do not stand for the proposition that
necessary to arrange onward travel (although asylum-seekers positioned as Dawit is are un-
not that close given the evidence that the able to claim persecution.
Eritrean government denied her ability to exit
and reunite with Dawit), Mussie involved an There is also a serious question as to the
Ethiopian asylum seeker who had spent over propriety of the BIA’s conclusion that Dawit
six years in Germany and did not attempt to likely could emigrate to Eritrea to be with
leave until she was harassed by neo-Nazis. Senait (who has already been forcibly deported
Mussie, 172 F.3d at 331. from Ethiopia, so her emigration there is
obviously not possible). As the petitioners’
The BIA further concluded that Dawit had expert put it, such a suggestion “amounts to a
not suffered past persecution, because his fear kind of insanity.” At this early stage in our
of imprisonment in Ethiopia for attempting to proceedings, it is sufficient to say that the
smuggle Senait out of the country was the BIA’s conclusion to the contrary is question-
result of legitimate application of Ethiopian able and demonstrates that there exists a
travel laws and not the result of one of the five significant likelihood that Senait and Dawit
bases of persecution from which refugees are will prevail on the merits of their claims.
protected: race, political beliefs, religion,
nationality, and membership in a particular Again, this is not an exhaustive analysis of
social group. 8 U.S.C. § 1101(a)(42)(A); the merits of the petitioners’ claims; such an
Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. analysis would not be appropriate at this initial
2005). Though it may be a close question, stage without the benefit of full briefing and
there is a strong argument that prosecution for further review of the record and pertinent
the crime of smuggling an Eritrean, especially authorities. The petitioners, however, have
where the Eritrean in question is one’s wife demonstrated a significant likelihood of suc-
from whom one would otherwise be forcibly cess on the merits. That likelihood, coupled
separated by a war zone, is persecution based with the extraordinary likelihood of irreparable
on race, political belief, and membership in a harm the petitioners face if deported (in the
social group. form of forced separation and likely perse-
cution), and the public interest in having the
Courts have consistently held that legiti- immigration laws applied correctly and even-
mate application of a country’s travel laws handedly, justifies the issuance of a stay of the
does not constitute persecution. Nevertheless, order of removal pending resolution of the
9
merits of the petition for review.
The motion for stay of removal pending re-
view is GRANTED. We emphasize, however,
that our comments on the merits are prelimi-
nary. Another panel of this court will review
anew the facts and the law for a purpose en-
tirely different from the reason for which we
have examined them. Nothing in this opinion
should be interpreted as an indication that pe-
titioners can, will, or should prevail in ulti-
mately forestalling removal and gaining asy-
lum.
10