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The 2nd U.S. Circuit Court of Appeals has clarified the standards under which federal judges may issue temporary stays of deportation orders. Confronting the latest in a series of issues posed by congressional attempts to restrict judicial review of immigration orders, the 2nd Circuit said the “heightened standard” for a stay of deportation imposed by � 242(f) of the Immigration and Nationality Act (INA) does not apply in the case of a man who sought a temporary stay pending appeal. But the court, in Mohammed v. Reno, 02-2443, also found that Haniff Mohammed had little chance of prevailing on his appeal from a denial of habeas corpus, and lifted the stay granted by Eastern District of New York Judge John Gleeson. Mohammed, who became a lawful permanent resident of the United States in 1990, was sentenced to serve two to four years in prison in 1997 following his conviction for possession of stolen property. He was then ordered deported because his conviction was an aggravated felony. In his habeas corpus petition to Judge Gleeson, Mohammed contended that he was entitled to discretionary relief from deportation under former INA  212(c), even though the section was repealed by Congress. Mohammed claimed he was nonetheless entitled to that relief because  212 was still the law when he committed his crime. Gleeson stayed the deportation of Mohammed, went on to deny his habeas petition, and then kept the stay in place pending a decision by the 2nd Circuit. The government asked the 2nd Circuit to lift the stay, arguing that Mohammed had failed to meet the high standard for an injunction blocking an order of deportation in  242(f) of the INA. Mohammed made two arguments. The first was that  242(f) does not apply to habeas corpus petitions because that section’s limit on a court’s power to “enjoin” the removal of an alien, he said, could not possibly apply to stays pending appeal. Second, Mohammed said the “clear and convincing evidence standard” that courts must meet before issuing injunctions does not apply to individual appeals, but instead applies to removal procedures. Writing for the 2nd Circuit, Judge Jon O. Newman said two circuit courts, including the 9th Circuit sitting in banc, have ruled that  242(f) does not apply to stays pending appeal. And while the 11th Circuit has ruled otherwise, Newman said his court was persuaded by the 9th Circuit’s reasoning. “If Congress wanted to apply a heightened standard to a stay pending appeal,” he said, “it would likely have used the word ‘stay’ in subsection 242(f)(2) instead of ‘enjoin.’” The court then addressed the application of stay criteria to Mohammed’s appeal, with a focus on what effect the appeal’s likelihood of success has on the decision to grant a stay. The question for the court, Judge Newman said, was whether its decision in Domond v. INS, 244 F.3d 81 (2001), remained good law. “Precisely like Domond, Mohammed committed his crime prior to the repeal of Section 212(c), but was convicted after its repeal,” Newman said. ‘REASONABLE RELIANCE’ Newman said that in Domond, the 2nd Circuit followed the U.S. Supreme Court when it focused on the importance of “reasonable reliance” and “settled expectations” in determining a law’s retroactive effect. The Domondcourt concluded that it would “border on the absurd” to suppose an alien might have been deterred from committing a crime if, already knowing he might go to prison and be deported, “he could not ask for discretionary relief from deportation.” The quote in Domondcame from the 2nd Circuit’s decision in St. Cyr v. INS, 229 F. 3d 406 (2000), where the circuit dealt with an alien who entered a guilty plea before the repeal of discretionary relief from deportation in  212(c). In upholding the 2nd Circuit’s decision in St. Cyr, the Supreme Court noted that aliens who pleaded guilty to a crime logically relied on the availability of  212(c) relief, Judge Newman said. “Mohammed, who was convicted after Section 212(c) relief became unavailable, has no basis for claiming similar reliance,” he said. The 2nd Circuit, he said, was concluding that ” Domondremains binding authority in this Circuit and that Mohammed therefore has no possibility of prevailing on his appeal.” Nonetheless, “because of the possibility that the Supreme Court might interpret its St. Cyropinion more expansively that we have,” Newman said, the 2nd Circuit was delaying its mandate for 30 days to allow Mohammed to seek a further stay from the Supreme Court. Chief Judge John M. Walker Jr. and Judge Fred I. Parker joined in the opinion. David A. Yocis of Dewey Ballantine represented Mohammed. Assistant U.S. Attorney Scott Dunn represented the government.

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