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Supreme Court rules traditional test governs stay of deportation requests

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] 7-2 in Nken v. Holder [Cornell LII backgrounder; JURIST report], retitled from Nken v. Mukasey, that an alien's stay of deportation request pending consideration of his petition for review is governed by the traditional test for stays, not by congressional revisions to the Immigration and Nationality Act reflected in 8 USC § 1252(f)(2) [text]. Jean Marc Nken is a native of Cameroon who fears persecution upon return to his home country. He was denied a stay of a deportation order while he pursued court review of the denial of his asylum claim. His lawyers originally asked the Court for a stay of deportation [application, PDF], but the Court granted full review to resolve the conflict over the proper standard of review. In vacating the decision below, which denied Nken's stay of deportation request, Chief Justice John Roberts wrote:

This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.
Justice Anthony Kennedy filed a concurring opinion, joined by Justice Antonin Scalia. Justice Samuel Alito filed a dissenting opinion, in which Justice Clarence Thomas joined.

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