United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
G. Sullivan United States District Judge.
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.
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.
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
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.
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.
Likelihood of Success on the Merits
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.
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.
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 ...