Stays of Removal Pending Appeal
Fatma Marouf, Michael Kagan and Rebecca Gill in this op/ed in the Washington Post write about the problems in getting stays of deportation pending appeals of removal orders.
Here is the problem in a nutshell:
“If you get a speeding ticket from a traffic cop, you have a right to fight it. And you don’t have to pay the fine until the case is resolved in court. But things are different if the Department of Homeland Security seeks to have you deported. In theory, you have the right to fight your deportation, potentially all the way to the Supreme Court. But the DHS might deport you before you’ve exhausted your appeals.”
Normally, a noncitizen petitioning for review of final order of removal can be deported even while the appeal remains pending. The only way to avoid this risk is to persuade the Court of Appeals to issue a stay of removal. In most circuits, a deportation can be carried out even after a petitioner files a motion for a stay of removal, until the court actually issues a stay. This happened in June to a Guatemalan mother and her daughter who were deported to Guatemala, where they feared violence. Their lawyer filed a motion for a stay, but before the government even responded to the motion, DHS simply flew them to Guatemala City. In an extraordinary step, the chief judge for the Third Circuit ordered the government to find the mother and daughter in Guatemala and “return them to the United States as quickly as possible.”
Deportations pending the appeal of a case is a “danger . . . built into the system.” In the U.S. Court of Appeals for the Ninth Circuit, a stay of removal pending an appeal is automatically ordered as soon as a petitioner asks for one, and it remains in place until the government responds and the court has the opportunity to rule on the merits of the request. Unfortunately, even when courts have the chance to make a decision, the system is prone to life-threatening errors. To decide whether to grant a stay of removal, a court must decide whether the immigrant is likely to eventually win her appeal. But the research of the authors of this op/ed found that in about half of the appeals that were ultimately successful, the court initially guessed wrong and denied the stay, leaving an immigrant at risk of an errant deportation.
The Court of Appeals for the Third Circuit yesterday issued a new standing order under which petitioners in immigration cases will receive an immediate stay of removal as soon as the clerk of the court receives a motion for a stay. The new order states in relevant part that:
“In order to ensure that petitioners in immigration matters are not deported before the Court has an opportunity to act on a motion for stay of removal … the Court adopts a policy of granting a temporary administrative stay pending disposition of the motion for a stay …”
KJ