Dan Marius Andreiu v. John Ashcroft, Attorney General

*485BEEZER, Circuit Judge, separately concurring:

I concur in the court’s judgment, which is founded on a determination that Andreiu does not satisfy the requirements for a stay under Abbassi v. Immigration and Naturalization Service, 143 F.3d 513, 514 (9th Cir.1998), and that Andreiu is not entitled to a stay of deportation pending appeal.

Abbassi requires the alien to “show either a probability of success on the merits and the possibility of irreparable injury, or that serious legal questions are raised and the balance of hardships tips sharply in petitioner’s favor.” Id. at 514.

This appeal goes beyond Abbassi and requires us to address an important issue of statutory construction affecting removal proceedings under the new rules enacted in the Illegal Immigration Reform and Immigrant Responsibility Act. This law requires a petitioner seeking review to meet a significantly higher standard before the court is authorized to grant a temporary stay of removal pending appeal from a final decision of the Board of Immigration Appeals.

The court’s opinion denies Andreiu a stay of deportation pending appeal. The opinion adopts the court-created Abbassi standard, which is less stringent than the statutory requirements for stays of deportation pending appeal. The opinion of the court rejects the statutory prescription of Congress as evidenced in the plain text of 8 U.S.C. § 1252(f)(2). It is the failure of the court’s opinion to apply the statutory standard that provokes me to write separately. If the court persists in applying the lenient Abbassi standard after the passage of the Illegal Immigration Reform and Immigrant Responsibility Act, then it shall thwart the intention of Congress, and stays of removal pending appeal will issue virtually “on request.”1

I

The plain text of the Illegal Immigration Reform and Immigrant Responsibility Act severely limits our power to stay an order of the Board of Immigration Appeals requiring removal of an alien. Section 1252(f)(2) states:

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 an order is prohibited as a matter of law.

8 U.S.C. § 1252(f)(2). Because I believe the plain meaning of “enjoin” encompasses the grant of a temporary stay, I would hold that subsection (f)(2)’s limit on our power to “enjoin” the removal of an alien clearly applies to the stay of a removal order pending resolution of an alien’s petition for review of a final order of the Board of Immigration Appeals.

To determine whether subsection (f)(2) applies to stays, “we must first look to the statutory language: ‘The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter.’” United States v. Morales-Alejo, 193 F.3d 1102, 1105 (9th Cir.1999) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993)). Both the *486dictionary and widespread judicial usage indicate that the term “stay” refers to a type of injunction. Consequently, subsection (f)(2)’s strict limit of our power to enjoin similarly restricts our ability to issue a stay.

Courts frequently turn to legal dictionaries when interpreting the clear language of a statute. See, e.g., Bartnicki v. Vopper, 531 U.S. 990, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (citing Black’s Law Dictionary definition of “disclosure” in interpreting 18 U.S.C. § 2511(l)(c)). Black’s Law Dictionary defines a “stay” as “a kind of injunction.” Black’s Law Dictionary 1413 (6th ed.1990).2 It defines “restrain” as “to enjoin,” id. at 1314; to “enjoin” is to require “a writ of injunction, to perform, or to abstain or desist from, some acts.” Id. at 529. Finally, an injunction is “[a] court order prohibiting someone from doing some specified act.” Id. at 784. These terms describe identical actions by a court which prevent some occurrence from taking place.

Courts’ common use of the terms “enjoin” and “stay” also demonstrates that these terms are not mutually exclusive. Both the Supreme Court of the United States and our court use these terms interchangeably or otherwise indicate that “enjoin” encompasses “stay.”3 See, e.g., NLRB v. Nash-Finch Co., 404 U.S. 138, 139-41, 144, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971) (holding that the NLRB’s attempt to “enjoin” or “restrain” a state court injunction falls under the exception of 28 U.S.C. § 2283: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by ... Congress _”) (emphases added); Gruntz v. County of Los Angeles (In re Gruntz), 202 F.3d 1074, 1087 (9th Cir.2000) (en banc) (holding that “Congress did not intend the [bankruptcy] stay to enjoin all state criminal proceedings automatically”) (emphases added); Pacific Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp., 935 F.2d 1019, 1022 (9th Cir.1991) (applying statute that proscribes appeals from an interlocutory order “refusing to enjoin an arbitration” to an appeal from a court’s “denial of a stay of arbitration”) (emphases added). Congress legislated in light of this long history of synonymous usage of the terms “enjoin” and “stay.” Surely that history is relevant, particularly when the statute does not specify that the court is to understand the terms in a new way.

Further bolstering the conclusion that Congress intended the term “enjoin” to *487encompass stays is the fact, of which Congress presumably was aware, that the courts have long reviewed motions for a stay under the same equitable standard as motions for a preliminary injunction. See, e.g., Coleman v. PACCAR, Inc., 424 U.S. 1301, 1305, 96 S.Ct. 845, 47 L.Ed.2d 67 (1976) (“A court staying the action of ... an administrative agency must take into account factors such as irreparable harm and probability of success on the merits.”) (internal citations omitted); Abbassi, 143 F.3d at 514 (“We evaluate stay requests under the same standards employed by district courts in evaluating motions for preliminary injunctive relief”). This similarity in the judicial treatment of injunctions and stays is yet another reason it is difficult to comprehend why Congress did not explicitly provide for a lenient standard to apply to stays if it intended such a standard to apply. This failure is doubly curious when one notes that the statute refers to “enjoin” without specifying any differential treatment of requests for preliminary and permanent injunctions. 8 U.S.C. § 1252(f)(2). Congress declined to make any procedural distinction in the statute based on whether an injunction is preliminary or permanent, although preliminary injunctions are granted without a full adjudication on the merits while permanent injunctions only take effect as part of a final judgment. Charles Alan Wright & Arthur R. Miller, 11 Federal Practice & Procedure § 2947 (2d ed. 1995). This decision to treat the two different types of injunctions identically hints strongly at a legislative intent to treat their subspecies, the stay, in the same manner.

The opinion of the court does not commence its analysis with the statutory language, as required by Morales-Alejo, 193 F.3d at 1105, but rather ends with it, asserting that “enjoin” applies only to restraints on “parties,” but not to restraints on courts or legal proceedings. Slip op. at 7614. Not only is this approach disordered, it is incorrect on the merits. Nothing in subsection (f)(1) indicates that “restrain” applies exclusively to temporary orders against courts or legal proceedings or that “enjoin” refers only to permanent relief against parties. 8 U.S.C. § 1252(f)(1) (instructing that no court, other than the Supreme Court, shall “enjoin or restrain the operation of the provisions of part IV of this subchapter”). There is nothing the court’s opinion can glean from the statute in support of the assertion that Congress used “enjoin” only in relation to permanent orders, rather, the court’s interpretation is contrary to the plain meaning of the word “enjoin.”4 See, e.g., Miller v. French, 530 U.S. 327, 334, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (noting motion “for a temporary restraining order or preliminary injunction to enjoin the operation of the automatic stay”) (emphases added).

II

The structure of the Illegal Immigration Reform and Immigrant Responsibility Act also supports the conclusion that the law now limits the authority of the court to enter a stay order pending appeal from the Board of Immigration Appeals. It is not *488the court’s business to tell Congress how to structure a statute.

Today, the court is required to look at a statute that says, “notwithstanding any other provision of law,” a plain and direct phrase. The court should give the congressional direction the respect and weight to which it is entitled.

The court’s opinion holds that the structure of subsection (f) precludes the application of subsection (f)(2) to stays, because

if Congress had intended to limit courts’ power to stay deportation proceedings pending petitions for review, the most logical place to include that provision would have been in § 1252(b)(3)(B) itself, the provision governing stay orders. .... [I]f § 1252(f)(2) has the effect that the INS claims, all of § 1252(b)(3)(B) would be reduced to surplusage.

Slip op. at 481.

This construction is incorrect. Initially, I observe that subsection (f)(2) explicitly states that it applies “[n]otwithstanding any other provision of law.” Moreover, subsections (c) and (d) of § 1252 govern judicial treatment of petitions for review. The structure of § 1252, therefore, does not require that subsection (b) act as the sole provision related to petitions for review and does not gainsay the conclusion that subsection (f)(2) clearly applies to the grant of a temporary stay. Cf. Maldonado v. Fasano, 67 F.Supp.2d 1170, 1175 (S.D.Cal.1999) (observing that § 1252(f)(2) “appears to displace” the Abbassi pre-Illegal Immigration Reform and Immigrant Responsibility Act, standard for grant of a stay).

The opinion of the court further reasons that because subsection (f)(1) addresses only collateral review for class actions,5 we should interpret subsection (f)(2) as limiting only collateral injunctive relief for individuals. Slip op. at 481. I disagree. Subsection (f)(2) limits a court’s power to “enjoin the removal of any alien pursuant to a final order under this section.” A Board of Immigration Appeals decision is a “final order” of removal. See 8 U.S.C. § 1101(a)(47)(B)(i) (Supp. II 1996). “[T]his section” refers not merely to subsection (f), but to the whole of § 1252. See American-Arab, 525 U.S. at 487, 119 S.Ct. 936 (holding that reference in subsection (g) to “this section” refers to the entirety of § 1252). Nothing in the statutory language suggests that subsection (f)(2) implicates only collateral matters.

Ill

The court’s opinion concludes that subsection (f)(2) would improperly require a higher standard to obtain a stay of removal than to succeed on the merits of a petition for review. Slip op. at 482. Applying a higher standard to motions for a stay, however, is not improper. See Ratzlaf v. United States, 510 U.S. 135, 140, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). Moreover, although the heightened standard in subsection (f)(2) may seem severe as applied to temporary stays, it is entirely consistent with the provisions and policy goals of the Illegal Immigration Reform and Immigrant Responsibility Act. Congress has made clear its desire to expedite *489removal proceedings. See Kalaw v. Immigration and Naturalization Service., 133 F.3d 1147, 1149 (9th Cir.1997) (noting Congress’s intent to vest the Board of Immigration Appeals with final appellate jurisdiction in most deportation proceedings); Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 486, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (“[M]any provisions of [the Illegal Immigration Reform and Immigrant Responsibility Act] are aimed at protecting the Executive’s discretion from the courts-indeed, that can fairly be said to be the theme of the legislation.”). The new act has even foreseen the possibility that an alien with a meritorious petition for review may be removed from the country before a court grants the petition. 8 U.S.C. § 1252(b)(3)(B) (“Service of the petition ... does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.”).

The argument that applying subsection (f)(2) to stays inappropriately compels the court to engage in a full review of the merits is likewise unpersuasive. Slip op. at 482. Examination of the merits may be necessary under both the standard of subsection (f)(2) and the preliminary injunction standard that the court’s opinion adopts.

For these reasons, I would hold that subsection (f)(2) applies to an alien’s motion to stay a final removal order pending resolution of a petition for review.

IV

Under § 1252(f)(2), the Court of Appeals is not permitted to stay a final order of removal “unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” The court must address the impact of this standard as applied to both findings of fact and conclusions of law made by the Board of Immigration Appeals in support of its final order of removal.

I am unable to apply the “clear and convincing” standard to legal questions because “clear and convincing evidence” speaks only to factual issues. See, e.g., California ex rel. Cooper, 454 U.S. 90, 92-93, 102 S.Ct. 172, 70 L.Ed.2d 262 (1981) (stating that standards of proof such as “clear and convincing” instruct “the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions”) (emphasis added); Black’s Law Dictionary 555 (6th Ed.1990) (defining “evidence” as something “offered in proof of an alleged fact ”) (emphasis added). Subsection (f)(2)’s imposition of a factual standard of proof requires a standard of review for legal issues that best reflects Congressional intent.

Congress’s requirement of “clear and convincing evidence” that a removal order is “prohibited as a matter of law” is best satisfied, with regard to legal issues, by requiring an alien to establish that a removal order was “manifestly contrary to law.” Cf. 8 U.S.C. § 1252(b)(4)(C), (D) (stating that eligibility decisions and the Attorney General’s discretionary judgment to grant asylum are conclusive “unless manifestly contrary to law”). *

Although the phrase “manifestly contrary to law” is not well-established, its terms are familiar. “Manifest” describes something that is apparent, clear, indisputable, obvious or plain. See Dickinson v. Zurko, 527 U.S. 150, 155, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (stating that “manifest error,” “clear case of error” and “clearly wrong” are phrases that “might be thought to mean the same thing”); Webster’s Third New International Dictionary 1375 (1993) (defining “manifest” as, inter *490alia, “capable of being easily understood or recognized at once by the mind: not obscure: obvious”); Black’s Law Dictionary 563 (7th ed.1999) (defining “manifest error” as “[a]n error that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record”); id. at 814 (defining “manifest intent” as “[fin-tent that is apparent or obvious”). “The term ‘contrary to law’ means contrary to any existing law.” Olais-Castro v. United States, 416 F.2d 1155, 1158 n.8 (9th Cir.1969) (citing Callahan v. United States, 285 U.S. 515, 517, 52 S.Ct. 454, 76 L.Ed. 914 (1932)). More specifically, “contrary” is defined as “ ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’ ” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting Webster’s Third New International Dictionary 495 (1976)). That the court would reach a different legal conclusion is insufficient; to grant a stay under the “manifestly contrary to law” standard, the court must independently arrive at the conclusion that the removal order is clearly antithetical to an existing law. This standard represents a legal approximation of “clear and convincing” evidence and furthers the Illegal Immigration Reform and Immigrant Responsibility Act’s goal of respecting the finality of Board of Immigration Appeals orders.

V

I would deny Andreiu’s motion for a stay because he wholly failed by any measure of evidence, much less clear and convincing evidence, to show that the Board of Immigration Appeals order was based on an erroneous finding of fact or that it was manifestly contrary to law as required by 8 U.S.C. § 1252(f)(2). I would reject application of the less stringent standard established in Abbassi. The application of the Abbassi standard is no longer sufficient to bar the removal pendente lite of an alien found by the Board of Immigration Appeals to be deportable.

. Other circuits' experience with similarly lenient standards bears out this observation. See, e.g., Ofosu v. McElroy, 98 F.3d 694 (2d Cir.1996) (proclaiming that "ordinarily, when a parly seeks [a stay] pending appeal, it is deemed that exclusion is an irreparable harm, and that the INS suffers no offsetting injury”); Sofinet v. Immigration and Naturalization Service, 188 F.3d 703, 707 (7th Cir.1999) (requiring only that a petitioner show a "better than negligible” chance of success on the merits portion of the stay test).

. The sixth edition of Black’s Law Dictionary was current at the time Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. For that reason its definitions control where they differ from the more recent seventh edition, which was not published until 1999.

. The Supreme Court’s decision in Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988), does not compel a different result. First, I note that Gulfstream dealt with whether a court's refusal to stay its own proceedings constituted a "final order” appealable pursuant to 28 U.S.C. § 1291. 485 U.S. at 275, 108 S.Ct. 1133. That is a very different issue from the one this court faces today. Second, it is clear that the Supreme Court's distinction between a stay and an injunction referred only to a particular type of stay used prior to the law-equity merger, which an official acting as both chancellor and law judge would issue to halt proceedings. Id. at 283-88, 108 S.Ct. 1133 ("Our holding today merely prevents interlocutory review of district court orders on the basis of historical circumstances that have no relevance to modern litigation.”). Here, on the other hand, the text and context of the statute clearly demonstrate that Congress — acting several years after Gulfstream — intended an identical standard for the grant of stays and injunctions, regardless of any esoteric distinction that may be drawn between the two in the historical circumstances of that case.

. Contrary to the assertion of the court's opinion, this construction of the statute does not render the words "enjoin or restrain'' in § 1252(b)(3)(B) surplusage. Subsection(b)(3)(B) provides that "Service of the petition on the officer does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” Within the context of that sentence, the verb "stay” clearly denotes an automatic halt in removal proceedings, not the (noun) "stay” requested by motion that is currently before the court.

. The Supreme Court has held that subsection (f)(1) limits “classwide injunctive relief against the operation of §§ 1221-1231, but specifies that this ban does not extend to individual cases.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 481-82, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999); see also 8 U.S.C. § 1252(f)(1) (”[N]o court (other than the Supreme Court) shall have jurisdiction ... to enjoin or restrain the operation of [§§ 1221 to 1231] ... other than with respect to tire application of such provisions to an individual alien....”).