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Ruling on a fundamental issue in immigration law that has splintered the federal circuits, the 3rd U.S. Circuit Court of Appeals has ruled that an alien seeking a stay of a deportation order must satisfy a four-part test modeled on the standard for granting a preliminary injunction. In Douglas v. Ashcroft, the 3rd Circuit adopted the standard used in the 1st, 2nd and 6th circuits. In doing so, the court rejected the 9th Circuit’s test as too lax, and said it found the 11th Circuit’s test too strict. Third Circuit Judge Dolores K. Sloviter found that the 3rd Circuit has never addressed, in a published opinion, the “standard of review for assessing a motion to stay removal of an alien pending judicial review.” Looking to other circuits for guidance, Sloviter found that the courts are splintered but that most have applied the standard for granting a preliminary injunction. Under the preliminary injunction standard, Sloviter said, a petitioner requesting a stay of a deportation order “must demonstrate (1) a likelihood of success on the merits of the underlying petition; (2) that irreparable harm would occur if a stay is not granted; (3) that the potential harm to the moving party outweighs the harm to the opposing party if a stay is not granted; and (4) that the granting of the stay would serve the public interest.” Although the 1st, 2nd and 6th circuits employ that test, Sloviter found that the 9th Circuit, in its 2001 decision in Andreiu v. Ashcroft, applied a two-pronged standard of review that provides that a stay of removal should be granted when an alien shows “either (1) a probability of success on the merits and the possibility of irreparable injury, or (2) that serious legal questions are raised and the balance of hardships tips sharply in the petitioner’s favor.” Sloviter rejected the 9th Circuit’s approach, saying “this standard collapses the traditional four-prong test. For the sake of providing both linguistic and analytic clarity, we adhere to the traditional four-part framework for the preliminary injunction standard.” The 11th Circuit, Sloviter said, applies a “more stringent standard” that requires petitioners to produce “clear and convincing evidence” that the execution of the removal order is prohibited by law. But Sloviter also noted that the 11th Circuit’s 2002 decision in Weng v. United States has already incurred criticism from two judges on that court who said in a concurring opinion that “ Weng applied the wrong standard for a motion for temporary stay of deportation pending appeal” and urged the court to reconsider the issue en banc. The Weng decision, Sloviter said, premised its holding on language in �1252(f)(2) of the Immigration and Nationality Act, which prohibits courts from enjoining the removal of any alien pursuant to a final order “unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” But Sloviter found that decisions from the 1st and 2nd circuits “both set forth clear multi-level analyses of why … Section 1252(f)(2) applies only to permanent prohibitions of removal and not to motions to stay the execution of a removal order.” In an opinion joined by 3rd Circuit Judges Edward R. Becker and Theodore A. McKee, Sloviter said the 3rd Circuit was “persuaded by the reasoning in those opinions to reject the 11th Circuit’s ‘clear and convincing evidence’ requirement.” Instead, Sloviter looked to �1252(b)(3)(B), which, she said, “in effect requires petitioners subject to a removal order to affirmatively seek a stay of removal from the reviewing court. Since that section of the INA “provides no standard for reviewing such motions to stay removal,” Sloviter concluded that the court should “apply the traditional standard for reviewing a motion to stay an administrative agency order pending judicial review of the underlying petition or appeal — the preliminary injunction standard.” But despite announcing the standard for seeking a stay, Sloviter went on to find that the court had no jurisdiction to consider the appeal by Hensworth Douglas, since the appeal challenged only one of two alternative grounds cited by the Board of Immigration Appeals in its deportation order. Sloviter found that even if the 3rd Circuit agreed with Douglas and rejected the BIA’s determination that his 1992 conviction on sexual misconduct charges qualifies as an “aggravated felony,” the BIA’s final order “remains intact based on Douglas’ 2002 drug conviction.” Since the BIA’s order “stands on the independent basis of the other reason,” Sloviter concluded that Douglas’ appeal “does not actually petition us to review a ‘final order of removal.’” As a result, Sloviter concluded that the government’s lawyers were correct in arguing that the 3rd Circuit had no jurisdiction to hear the appeal. According to court papers, Douglas, a native of Jamaica, entered the United States with a valid visa in 1987, and later received lawful permanent resident status. In October 2002, Douglas was convicted under Delaware law for trafficking cocaine. In June 2003, the Department of Homeland Security moved to deport Douglas as an alien convicted of an “aggravated felony.” But an immigration judge concluded that the Delaware drug conviction did not constitute an “aggravated felony” under the 3rd Circuit’s decision in Gerbier v. Holmes. The government responded to that ruling by amending its petition to add a claim that Douglas was convicted of a second “aggravated felony,” citing his 1992 misdemeanor conviction in New York for “sexual misconduct.” But the immigration judge again sided with Douglas and found that the sexual misconduct conviction did not constitute an “aggravated felony.” The ruling also rejected the government’s argument that the New York conviction qualified as a “crime of moral turpitude.” As a result, the IJ ruled that Douglas was eligible to apply for cancellation of removal and granted the application for cancellation of removal after balancing the hardship to Douglas and his family members against his criminal history. On appeal, the BIA vacated the IJ’s decision regarding the “aggravated felony” charge and ordered that Douglas be deported. The BIA ruled that Douglas’ 1992 “sexual misconduct” conviction qualified as an “aggravated felony” because Douglas engaged in “non-consensual sexual intercourse with a 14-year-old female” victim. In his appeal to the 3rd Circuit, Douglas challenged only the BIA’s ruling with respect to the “aggravated felony” issue. Sloviter found that the BIA vacated only the portion of the IJ’s decision holding that Douglas’ 1992 New York sexual misconduct conviction was not an “aggravated felony” and that Douglas was therefore eligible for cancellation of removal. As a result, Sloviter said, the BIA never reviewed the IJ’s decision regarding Douglas’ 2002 Delaware drug conviction, which also rendered Douglas subject to deportation. Sloviter noted that Douglas “did not challenge before the BIA or here the IJ’s finding that he is removable from the United States on the ground of his Delaware drug conviction.” Under �1252(a)(2)(C) of the INA, Sloviter said, appellate courts have no jurisdiction to review a “final order of removal” against an alien who is found to be subject to deportation for having committed an aggravated felony. But Sloviter also emphasized that “our decision does not foreclose Douglas of the opportunity to seek judicial review of the substantive arguments contained in his petition for review through a petition for habeas corpus filed in an appropriate district court.”

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