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No. 08-693

 

In the Supreme Court of the United States

SOLOMON DEBESSAY TESFAGABER, PETITIONER

v.

MARK FILIP, ACTING ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

 

BRIEF FOR THE RESPONDENT

EDWIN S. KNEEDLER
Acting Solicitor General
Counsel of Record
MICHAEL F. HERTZ
Acting Assistant Attorney
General
DONALD E. KEENER
ERICA B. MILES
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTION PRESENTED

Whether the decision of a court of appeals to stay an alien's removal pending consideration of the alien's petition for review is governed by the standard set forth in 8 U.S.C. 1252(f)(2), or instead by the traditional test for preliminary injunctive relief.

In the Supreme Court of the United States

No. 08-693

SOLOMON DEBESSAY TESFAGABER, PETITIONER

v.

MARK FILIP, ACTING ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

 

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1a) is unreported. The decisions of the Board of Immigration Appeals (Pet. App. 2a-3a) and the immigration judge (Pet. App. 4a-10a) are unreported.

JURISDICTION

The order of the court of appeals was entered on No vember 12, 2008. The petition for a writ of certiorari was filed on November 21, 2008. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1996, Congress amended the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., to stream line judicial review of aliens' claims and expedite the removal of illegal aliens from the United States. See Illegal Immigration Reform and Immigrant Responsibil ity Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546. IIRIRA made three amendments to the INA that are particularly relevant here.

First, IIRIRA modified a provision of the INA that previously had provided for an automatic stay of the enforcement of a removal order upon the filing of a peti tion for review in a court of appeals. As a result, the INA now provides that "[s]ervice of the petition [for judicial review] * * * does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise." IIRIRA § 306(a)(2), 110 Stat. 3009-608 (emphasis added) (enacting 8 U.S.C. 1252(b)(3)(B)).

Second, Congress repealed a provision of the INA that had barred further consideration of a petition for review following an alien's departure or removal from the United States. IIRIRA § 306(b), 110 Stat. 3009-612 (repealing 8 U.S.C. 1105a (1994)). Post-IIRIRA, there fore, "an alien may continue to prosecute his appeal of a final order of removal even after he departs the United States." Ngarurih v. Ashcroft, 371 F.3d 182, 192 (4th Cir. 2004); see Dada v. Mukasey, 128 S. Ct. 2307, 2320 (2008).

Third, Congress enacted a new provision, which states that "no court shall enjoin the removal of any ali en pursuant to a final order under [8 U.S.C. 1252] unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law." IIRIRA § 306(a)(2), 110 Stat. 3009-612 (enacting 8 U.S.C. 1252(f)(2)). That provision is at issue here.

2. Petitioner is a native and citizen of Ethiopia who was admitted to the United States in 1986 as a refugee. Pet. App. 6a. In 1993, petitioner's status was adjusted to that of a lawful permanent resident. Ibid.

In 1995, petitioner was convicted of two drug of fenses. On April 21, 1995, he was convicted of posses sion of cocaine in state court in Howard County, Mary land. Pet. App. 6a. On September 21, 1995, he was con victed of conspiracy to possess cocaine with the intent to distribute it in state court in Prince George's County, Maryland. Ibid.

As a result of his crimes, petitioner was charged with being removable from the United States. Pet. App. 4a- 6a; see 8 U.S.C. 1227(a)(2)(A)(iii) (authorizing removal of any alien who has been convicted of an aggravated felony); 8 U.S.C. 1227(a)(2)(B)(i) (authorizing removal of any alien who has committed a violation of a controlled substance law, other than an offense involving posses sion of 30 grams or less of marijuana); see also 8 U.S.C. 1101(a)(43)(B) (defining "aggravated felony" to include a drug trafficking crime such as petitioner's).1

Although petitioner was served with a notice to ap pear, he failed to appear at his removal hearing. Pet. App. 6a. An immigration judge (IJ) therefore ordered him removed in absentia. Ibid.

3. Petitioner appealed to the Board of Immigration Appeals (Board), contending that he was present in the courtroom at his removal hearing but did not hear his name called. Pet. App. 6a-7a. The Board reopened peti tioner's proceedings and remanded his case to the IJ. Id. at 7a.

Petitioner was mailed a notification of the date of his new removal hearing before the IJ. Pet. App. 7a. That notification was sent to petitioner's home address of re cord, but the notification was returned to the immigra tion court "by an individual who appear[ed] to live" at that address. Ibid. Petitioner now asserts that the noti fication was returned by his sister, with whom he was estranged at the time of the remanded proceeding (al though they now live together once again). Pet. 5; see 8 U.S.C. 1229(a)(1)(F)(ii) (requiring an alien to "immedi ately" provide written notification to the immigration court upon any change in his mailing address). Peti tioner failed to appear at his scheduled removal hearing, and he was again ordered removed in absentia. Pet. App. 7a.

4. In August 2007, petitioner was taken into custody by Immigration and Customs Enforcement. Pet. App. 7a. In March 2008, petitioner filed a motion to reopen his removal proceedings, but it was rejected by the im migration court because it failed to comply with several local court operating procedures. Ibid. Petitioner filed a new motion to reopen, which was accompanied by a motion for a stay of a removal and an application for asylum, withholding of removal, and relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85. Pet. App. 7a.

The IJ denied petitioner's motion to reopen. Pet. App. 4a-10a. The IJ first explained that he "considered the entire record carefully," including "all of the evi dence" petitioner submitted. Id. at 8a. He also noted that an alien generally is limited to only one motion to reopen, id. at 8a (citing 8 C.F.R. 1003.23(b)(1)); that the alien must provide "material" evidence that "was not available and could not have been discovered or pre sented at the former hearing" in order for the motion to be granted, ibid. (citing 8 C.F.R. 1003.23(b)(3)); and that the granting of a motion to reopen is discretionary, id. at 9a.

The IJ then denied the motion to reopen. He ex plained that petitioner "was already granted the oppor tunity to renew his case * * * following the first in absentia removal order," but he "failed to appear" and "failed to comply with his obligation to notify the Court of any change in address," even though he was specifi cally advised of that requirement in the initial notice to appear. Pet. App. 9a. The IJ also considered and re jected petitioner's claims for withholding of removal and CAT relief. Id. at 9a-10a.2 The IJ observed that al though petitioner has been present in the United States since 1986, and seven years passed between the issuance of the notice to appear and the present motion to reopen, petitioner had never before asserted his claims that he would be persecuted or tortured in Ethiopia. Id. at 9a. The IJ then determined that petitioner did not establish prima facie eligibility for relief because he presented no "evidence supporting a claim that he is likely to be per secuted or tortured in either" Ethiopia or Eritrea. Id. at 10a.

5. The Board dismissed petitioner's appeal. Pet. App. 2a-3a. It observed that, although petitioner had been ordered removed in absentia once before, and that removal order made him "keenly aware of the dire con sequences of failing to appear," he nonetheless failed to notify the immigration court of his change in address as required by his notice to appear. Id. at 3a. The Board also noted that, notwithstanding petitioner's contention that he did not live at his address of record at the time of the remanded proceedings, he used that address in his prior appellate filings with the Board and in his cur rent motion to reopen and related filings. Ibid. The Board therefore concluded that the IJ properly denied the motion to reopen. Ibid.

6. Petitioner filed a petition for review with the court of appeals and sought a stay of removal pending consideration of the petition. In his stay motion, peti tioner contended that he was entitled to a stay under the standard set forth in 8 U.S.C. 1252(f)(2), which is the standard that has been adopted by the Fourth Circuit. See Teshome-Gebreegziabher v. Mukasey, 528 F.3d 330, 332-335 (2008). He also contended, however, that the Fourth Circuit should revisit its precedent and evaluate his motion using the four-part standard for assessing requests for preliminary injunctive relief. Pet. Stay Mo tion 5-19. The government opposed the stay motion, ar guing that petitioner did not meet the requirements for a stay of removal under 8 U.S.C. 1252(f)(2). Gov't Stay Opp. 7-14.

The court of appeals denied the stay motion in an unpublished, per curiam order, which reads:

Upon review of submissions relative to the motion for stay pending appeal, the Court denies the motion.

Pet. App. 1a.3

DISCUSSION

In Nken v. Filip, No. 08-681 (argued Jan. 21, 2009), this Court is currently considering whether the decision of a court of appeals to stay an alien's removal pending consideration of the alien's petition for review is gov erned by the standard set forth in 8 U.S.C. 1252(f)(2), or instead by the four-part standard traditionally used for preliminary injunctive relief. The petition in this case presents the same question. The Court therefore should hold the petition pending its decision in Nken, and then dispose of it accordingly.

CONCLUSION

The petition for a writ of certiorari should be held pending this Court's decision in Nken v. Filip, 08-681, and then be disposed of as appropriate in light of the decision in that case.

Respectfully submitted.

EDWIN S. KNEEDLER
Acting Solicitor General
MICHAEL F. HERTZ
Acting Assistant Attorney
General
DONALD E. KEENER
ERICA B. MILES
Attorneys

 

JANUARY 2009

1 Petitioner apparently does not contest that he is removable as charged. See Pet. 4.

2 The IJ explained that petitioner was statutorily ineligible for asylum and withholding of removal because he had committed multiple aggravated felony offenses, so that the only possible relief available was deferral of removal under the CAT. Pet. App. 10a & n.2 (citing 8 U.S.C. 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. 1208.13(c)(1)).

3 Petitioner filed his opening brief in the court of appeals on January 12, 2009.