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Grace v. Whitaker

United States District Court, District of Columbia

January 25, 2019

GRACE, et al., Plaintiffs,
v.
MATTHEW G. WHITAKER, Acting Attorney General of the United States, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Emmet G. Sullivan United States District Judge.

         On December 19, 2018, the Court issued an Order vacating several policies promulgated by the Attorney General in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), a precedential immigration decision, and subsequent guidance issued by the Department of Homeland Security. See Order, ECF No. 105. The vacated policies related to the expedited removal process and credible fear determinations made by asylum officers. The Court held that these policies violated the Administrative Procedure Act and the immigration laws. Accordingly, the Court vacated the unlawful policies and permanently enjoined the government from applying the policies in future cases.

         The government now requests a stay, pending appeal of the Court's Order, to enable the unlawful policies to continue to apply in all expedited removal cases, except the plaintiffs. For the following reasons, defendants' motion for stay is DENIED.

         I. Legal Standard

         A court's decision to stay its final judgment pending appeal is an extraordinary remedy that is an “intrusion into the ordinary process of . . . judicial review.” Nken v. Holder, 556 U.S. 418, 428 (2009); see also Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 978 (D.C. Cir. 1985). The issuance of a stay is a matter of judicial discretion, not a matter of right, and the “party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Nken, 556 U.S. at 433-34. In exercising its discretion, a court considers the following four factors:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.

Cuomo, 772 F.2d at 974. It is “the movant's obligation to justify the court's exercise of such an extraordinary remedy.” Id. at 978.

         II. Discussion

         The Court begins with a discussion of general guidance from the Supreme Court about the four stay factors. “The first two factors of the traditional standard are the most critical. It is not enough that the chance of success on the merits be ‘better than negligible.'” Nken, 556 U.S. at 434 (citation omitted). “By the same token, simply showing some ‘possibility of irreparable injury,' fails to satisfy the second factor.” Id. at 434-35 (internal citation omitted). “Once an applicant satisfies the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party.” Id. at 435. In the context of removal proceedings, courts must be mindful that the “Government's role as the respondent in every removal proceeding does not make the public interest in each individual one negligible.” Id. (citations omitted). With these principles in mind, the Court now turns to the four stay factors.

         A. Likelihood of Success on the Merits

         In determining whether a stay should be granted, a “critical” factor is whether the moving party is likely to succeed on the merits. Id. at 434.

         The government confines its arguments to the claim that the Court has no authority to enjoin the operation of any expedited removal policies beyond that policies' application to the plaintiffs. See Defs.' Mot. to Stay, ECF No. 107. The government makes three principal arguments to support its position. First, the government points to section 1252(e)(3), the provision under which the plaintiffs have brought this case. See 8 U.S.C. § 1252(e)(3). Next, the government looks to the legislative history of the 1996 amendments to the Immigration and Nationality Act (“INA”). Finally, the government argues precedent in this Circuit “indicates” that its position is correct. The Court considers each argument in turn.

         i. Section 1252(e)(3)

         The government first argues that the Congressional scheme precludes any injunctive relief that is not limited to the plaintiffs in this case. Defs.' Mot. to Stay, ECF No. 107 at 2- 4. The Court has already rejected the various arguments made on this point in its Memorandum Opinion. ECF No. 106 at 98-101. Undaunted, the government now points to section 1252(e)(3) which grants the Court authority for “judicial review of determinations under section 1225(b) and its implementation.” Defs.' Mot. to Stay, ECF No. 107 at 3. The government argues that such determinations may only be made individually and therefore the Court only had authority to review, and provide a remedy for, the plaintiffs' individual determinations. Id. The government further argues ...


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