Carl Dorelien v. U.S. Attorney General, John Ashcroft, Immigration and Naturalization Service

BARKETT, Circuit Judge,

dissenting from the denial of rehearing en banc:

I believe the issue in this case merits en banc consideration. Dorelien requests a temporary stay of an INS removal order while his appeal is considered. Prior to Weng v. U.S. Atty. Gen., 287 F.3d 1335 (11th Cir.2002), Dorelien’s motion for a temporary stay would have been reviewed under the traditional test outlined in Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985). Instead, Weng extends the “clear and convincing evidence” standard for injunctions imposed under 8 U.S.C. § 1252 (f)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) to temporary stay orders pending appeal. Weng, 287 F.3d at 1338 . This expansion of IIRIRA runs counter to the plain language of the act, the statutory context of § 1252(f)(2), and the decision of every other circuit court to have considered the question. See Mohammed v. Reno, 309 F.3d 95 (2nd Cir.2002); Andreiu v. Ashcroft, 253 F.3d 477, 480 (9th Cir.2001) (en banc); Bejjani v. INS, 271 F.3d 670, 688 (6th Cir.2001); Lai v. Reno, 221 F.3d 1338 (7th Cir.2000) (unpublished opinion). Accordingly, I believe that en banc review of Dorelien is warranted to reconsider both Weng and the appropriate reach of IIRIRA.

I. Weng Incorrectly Held that IIRIRA’s “Clear and Convincing Evidence” Standard Applies to Temporary Stay Motions

A. Statutory Interpretation

1. Plain Language

As is well known, the starting point for all statutory interpretation is the language of the statute itself. United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999) (citing Watt v. Alaska, 451 U.S. 259, 265 , 101 S.Ct. 1673 , 68 L.Ed.2d 80 (1981)). We must assume that Congress used the words in a statute as they are commonly and ordinarily understood, and we read the statute to give full effect to each of its provisions. United States v. McLymont, 45 F.3d 400, 401 (11th Cir.1995) (per curiam).

The plain language of § 1252(f)(2) as commonly used and understood does not support the broad interpretation adopted in Weng. See Weng, 287 F.3d at 1338 . Section 1252(f)(2) states that:

Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.

8 U.S.C. § 1252 (f)(2). The operative term for our purposes is the word “enjoin.” Specifically, the question that Weng en *1321 deavored to answer was whether the term “enjoin,” as employed in § 1252(f)(2), encompasses the term “stay.” See Weng, 287 F.3d at 1336 .

As the Weng panel noted, see id. at 1338 , Black’s Law Dictionary, 529 (6th ed.1990), defines “enjoin” as a verb that means “[t]o require; command; positively direct. To require a person, by writ of injunction, to perform, or to abstain or desist from, some act.” Nowhere in this definition is there any reference to the word “stay,” which Black’s classifies as a verb meaning “[t]o stop, arrest, or forbear. To ‘stay’ an order or decree means to hold it in abeyance, or refrain from enforcing it.” Id. at 1413 .

The definitions of the two verbs differ, as do their common meaning and usage. “Enjoin” means to command a person to do or not do some act. The term has an active and continuing impact on the person who would otherwise act. See Mohammed, 309 F.3d at 99 (stating that the term “enjoin” in § 1252(f)(2) “applies to a permanent prohibition”). In contrast, the definition of “stay” does not focus on the command itself, but instead on its temporary nature. To stay an INS removal order means only to hold it in abeyance pending some future instruction. Unlike the verb “to enjoin,” the verb “to stay” is inherently ephemeral.

The difference in the definitions of “enjoin” and “stay” mirrors the difference in their common legal usage. One would not refer to the granting of a stay pending appeal as the granting of an injunction. The verb “enjoin” (or the noun “injunction”) is simply not used interchangeably with the noun “stay.” See Andreiu, 253 F.3d at 478 (explaining that “as a matter of statutory construction, ... the term ‘enjoin’ in this context, is not equivalent to the term ‘stay’ ”).

Congress could have used the word “stay,” as it has done in other contexts, but it chose instead to use the precise verb “enjoin” in the text of § 1252(f)(2). Our role is not to second-guess Congress’s drafting choices. Rather, “[o]ur function is to apply statutes, to carry out the expression of the legislative will that is embodied in them, not to ‘improve’ statutes by altering them.” Wright v. Secretary for Dept. of Corrections, 278 F.3d 1245, 1255 (11th Cir.2002) (citing Badaracco v. Comm’r of Internal Revenue, 464 U.S. 386, 398 , 104 S.Ct. 756 , 78 L.Ed.2d 549 (1984) (“Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement.”)). We must interpret the statute as written. See id. at 1255. And based on the precise words used in § 1252(f)(2), the “clear and convincing evidence” standard applies only when a court seeks to “enjoin the removal of any alien” not when it stays an order of removal while it considers the merits of an appeal. 8 U.S.C. § 1252 (f)(2).

%. Statutory Context

In addition to the words themselves, we must also consider their statutory context. United States v. McLemore, 28 F.3d 1160, 1162 (11th Cir.1994) (citation omitted); see also Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 628-29 , 121 S.Ct. 1835 , 149 L.Ed.2d 855 (2001) (“[W]e have not treated Black’s Law Dictionary as preclusively definitive; instead, we have accorded statutory terms, including legal ‘terms of art,’ a contextual reading.”). The statutory context of IIRIRA demonstrates that § 1252(f)(2) was not meant to apply to temporary stay orders while an appeal is pending.

Section 1252(f), entitled “Limit on In-junctive Relief,” places limits on a court’s ability to prohibit the INS from removing aliens and contains two subsections. The first, entitled “In general,” states that “no *1322 court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subehapter.... ” 8 U.S.C. § 1252 (f)(1) (emphasis added). This provision makes it clear that Congress did not consider the terms “enjoin” and “restrain” to be synonymous. See Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 209 , 117 S.Ct. 660 , 136 L.Ed.2d 644 (1997) (“Statutes must be interpreted, if possible, to give each word some operative effect”). The second part of § 1252(f) is entitled “In particular” and limits courts’ ability to override a final order under IIRIRA. See 8 U.S.C. § 1252 (f)(2). As previously noted, § 1252(f)(2) states that “no court shall enjoin the removal of any alien pursuant to a final order....” Notably, this section employs only the word enjoin — not “enjoin or restrain,” as § 1252(f)(1) does, or “enjoin or stay.” Congress’s use of the term enjoin, standing alone, must be presumed intentional. See City of Columbus v. Ours Garage and Wrecker Serv., Inc., 536 U.S. 424 , 122 S.Ct. 2226, 2228 , 153 L.Ed.2d 430 (2002) (citing Russello v. United States, 464 U.S. 16, 23 , 104 S.Ct. 296 , 78 L.Ed.2d 17 (1983)) (“where particular language is included in one section of a federal statute but omitted from another, Congress is generally presumed to have acted intentionally and purposely”). Accordingly, § 1252(f)(2) necessarily refers to a narrower range of judicial action than is implicated under § 1252(f)(1), which employs the phrase “enjoin or restrain.”

This logic is important. Once it becomes clear that the term enjoin does not refer to the full range of judicial action, the argument presented in Weng — that “enjoin” as applied in § 1252(f)(2) encompasses stay orders — loses its coherence. See Weng, 287 F.3d at 1338 . As stated in a recent Second Circuit decision, “when Congress pointedly uses both words in one subsection and then uses only the term ‘enjoin’ in an adjacent subsection, there is an implication that ‘restrain’ is used in (f)(1) to refer to an interim prohibition, and that the omission of ‘restrain’ in (f)(2) therefore makes this subsection inapplicable to such a prohibition.” Mohammed, 309 F.3d at 99 . When read in the statutory context of § 1252 as a whole, it is clear that subsection (f)(2) does not extend to temporary stay orders.

Additional support for this conclusion is found in § 1252(b)(3)(B). This section is the only provision in IIRIRA that specifically refers to the term “stay.” It demonstrates that when Congress intended to refer to stay orders in the statute, it did so explicitly. Section 1252(b)(3)(B) states, “[sjervice of the petition on the officer does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” Here, the term “stay” is used as a verb and describes the act of placing a hold on deportation pending the outcome of a petition for review. Had Congress intended to convey the same meaning in § 1252(f), it would have written subsection (f)(2) to limit courts’ power to “enjoin or stay ” removal. 1 See, e.g., Mohammed, 309 F.3d at 99 (“If Congress wanted to apply a heightened standard to a stay pending appeal, it would have used the word ‘stay’ in *1323 [§ 1252](f)(2) ... indeed, it would likely have included such a standard in section [§ 1252](b).”).

In sum, § 1252(f)(2) does not impose a “clear and convincing evidence” standard on temporary stays of removal. This is made clear both in the plain language of § 1252(f)(2) and from a contextual reading of the provision within the general structure of IIRIRA. Because a straightforward statutory interpretation of § 1252(f)(2) dictates that Weng was wrongly decided, this Court should consider Do-relien en bane to delineate the proper standard of review for temporary stay orders.

B. The Terms “Enjoin” and “Stay” Have Not Been Used Interchangeably in Our Case Law.

As a fallback argument, the Weng panel advances the proposition that the jurisprudence of this Court has established that the terms “enjoin” and “stay” are interchangeable. Weng, 287 F.3d at 1338 (“courts have regularly used these terms interchangeably”). However, none of the cases cited in Weng provides persuasive support for the idea that a “stay” and an injunction are in any way equivalent. See id. at 1338 n. 4.

For example, Weng cites the passage in Okongwu v. Reno, 229 F.3d 1327, 1329 (11th Cir.2000), that states, “we subsequently granted Okongwu’s motions to proceed on appeal in forma pauperis and for preliminary injunctive relief, construed as a motion for stay of deportation.” Ok-ongwu addressed the issue of whether the district court had subject matter jurisdiction over Okongwu’s petition for habeas corpus under 28 U.S.C. § 2241 . Notably, the case did not address the merits of Okongwu’s motion for preliminary injunc-tive relief. But in the initial discussion of the case, the Okongwu panel did note two points relevant to the present inquiry: 1) we had previously granted Okongwu’s motion for preliminary injunctive relief; and 2) we construed this motion as a motion for stay of deportation. Okongwu, 229 F.3d at 1329 . In short, we treated Okong-wu’s motion for a preliminary injunction as a motion for a stay. This does not indicate that the two terms are somehow interchangeable, but rather that they are distinct and should be treated as such. We construed Okongwu’s motion for preliminary injunctive relief as a stay motion precisely because a motion for preliminary injunctive relief was not the appropriate vehicle for the remedy Okongwu sought. Therefore, Okongwu does not stand for the proposition that “enjoin” and “stay” are interchangeable terms.

Weng next cites Zardui-Quintana, 768 F.2d at 1215 n. 7, in support of the “interchangeability” argument. Weng, 287 F.3d at 1338 n. 4. Zardui-Quintana is a pre-IIRIRA case that involved forty-four Mar-iel Cubans. In it, we addressed the propriety of the district court’s grant of a temporary restraining order (“TRO”) against the INS district director’s denial of a motion to stay deportation. See Zardui-Quintana, 768 F.2d at 1215 n. 7. We found that the district court abused its discretion in granting the TRO because the INS district director did not have authority to grant stays of deportation in the first instance. Id. In a footnote, we explained that we would treat the district court’s TRO as a preliminary injunction “because it granted the petitioners the very affirmative relief they sought before the district director, a stay of deportation.” Id.

Weng posits that Zardui-Quintana stands for the proposition that a “request for a judicial stay of deportation in [a] habeas case [is] akin to and should be treated as a request for injunctive relief.” Weng, 287 F.3d at 1338 . But this is inac *1324 curate. What Zardui-Quintana states is that a preliminary injunction, rather than a TRO, is the technically appropriate vehicle for a district court to employ when a party seeks affirmative relief from an INS action. Zardui-Quintana, 768 F.2d at 1215 n. 7. The case did not involve a “request for judicial stay of deportation,” Weng, 287 F.3d at 1338 , it involved a request for an injunction against an action by the district director of the INS. Id. Nowhere in Zardui-Quintana does the court even intimate that a stay motion is “akin to and should be treated as” an injunction.

Nor do the two non-immigration cases cited in Weng, 287 F.3d at 1338 n. 4, advance this argument. The first, Spivey v. Board of Pardons and Paroles, 279 F.3d 1301 , 1304 n. 3 (11th Cir.2002), is a capital case that states in a footnote, “a preliminary injunction, ha[s] the necessary effect of a stay of execution.” Again, this does not imply that an injunction and a stay are interchangeable for all purposes. Spivey states only that in a capital case, a preliminary injunction has the same effect as would a stay of execution. Id. But the argument against Weng is not that a “stay order” and a “preliminary injunction” cannot have the same effect. Rather, it is the more precise point that Congress did not intend that the two remedies be deemed equivalent under § 1252(f)(2). That the two may have the same effect in some circumstances is irrelevant. Our inquiry into Congress’s use of the word “enjoin” in § 1252(f)(2) does not focus on effect, but on meaning. Spivey neither contends that “stay” and “enjoin” are per se interchangeable, nor sheds any light on the meaning of the term “enjoin.”

The other non-immigration case cited in Weng, Jove Eng’g, Inc. v. IRS, 92 F.3d 1539, 1546 (11th Cir.1996), is similarly un-supportive. See Weng, 287 F.3d at 1338 n. 4. It is true that Jove states, “we have characterized the automatic stay of 11 U.S.C. § 362 (a) as ‘essentially a court ordered injunction.’ ” Jove, 92 F.3d at 1546 (quotation omitted). However, in the very next sentence Jove adds that “[although essentially a court-ordered injunction, the automatic stay nevertheless is actually a legislative creation with unique properties different from court-ordered injunctions.” Id. (emphasis added). This does not imply that “to stay” and “to enjoin,” or even a stay order and an injunction, are interchangeable. Rather, it illustrates the point that an automatic stay order is not equivalent to an injunction. 2 Explicitly, “[cjourts of appeal have an independent role in assessing the intent of Congress in its enactment of a statutory provision, such as the automatic stay, which is different from the assessment of a district court’s specific order, such as an injunction.” Id. Far from indicating that “stay” and “enjoin” are interchangeably, Jove makes it clear that the two terms, as well as their remedial analogs, are separate and distinct.

As the forgoing illustrates, our circuit’s case law has not “used [the terms ‘stay’ and ‘enjoin’] interchangeably or [indicated] the act of enjoining includes the act of staying.” Weng, 287 F.3d at 1338 . With no reason to suppose that the terms have been used interchangeably, it is hard to comprehend how Congress may be “presumed to be knowledgeable of this established pattern of interpretation treating motions to stay as requests for injunctive relief.” Id. at 1338-39 (citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 , 108 S.Ct. 1704 , 100 L.Ed.2d 158 (1988)). *1325 No such pattern existed prior, or subsequent, to the passage of IIRIRA. Even assuming arguendo that the text of § 1252(f)(2) is not clear and the section does not apply solely to injunctions, the panel’s backup argument in Weng , that the two remedies may be used interchangeably, fails. Therefore, we should consider Dorelien en banc.

II. Weng Created a Circuit Split

No other circuit court has held that the “clear and convincing evidence” standard imposed under § 1252(f)(2) applies to stay motions. Rather, every circuit court to consider the issue has explicitly held that it does not. See Mohammed, 309 F.3d at 100 ; Andreiu, 253 F.3d at 480 ; Bejjani, 271 F.3d at 688 ; Lai, 221 F.3d at 1338. While none of these opinions is binding upon this Court, it is notable that our sister courts’ disagreement with Weng is both unmistakable and unanimous.

III. This Is an Issue of Unique and Great Importance Warranting En Banc Review

Applying a heightened burden of proof to temporary stays of deportation will have a unique effect on a great number of litigants and, therefore, warrants en banc review of Weng . Under Weng , we must apply the same standard to a temporary stay pending appeal as to the merits of that appeal. This places the petitioner for a temporary stay in an untenable situation. The Weng decision requires this Court to decide the merits of the case at the outset, based upon the petitioner’s application for a temporary stay. And a decision on the merits “would require full-scale briefing at the beginning of the appellate process before the petitioner has even received a copy of the administrative record.” Andreiu, 253 F.3d at 482 . While the IIRIRA does authorize appeals from abroad, it is unfair to impose this Herculean task upon petitioners who might have prevailed on the merits if they had been afforded the benefit of a full record. Thus, the unique posture of the petitioners in this type of case makes the approach under Weng additionally unjust and this issue warrants en banc consideration.

The en banc court should reconsider the standard for granting temporary stays pending appeal because, in the words of Federal Rule of Appellate Procedure 35, this issue “involves a question of exceptional importance.” F.R.A.P. 35. Eleventh Circuit Rule 35-3, our companion to F.R.A.P. 35, directs counsel as follows:

A petition for en banc consideration, whether upon initial hearing or rehearing, is an extraordinary procedure intended to bring to the attention of the entire court a 'precedent-setting error of exceptional importance in an appeal or other proceeding, and, with specific reference to a petition for en banc consideration upon rehearing, is intended to bring to the attention of the entire court a panel opinion that is allegedly in direct conflict with precedent of the Supreme Court or of this circuit.

11th Cir. R. 35-3 (emphasis added). Dore-lien involves exactly the type of precedent-setting error Rule 35-3 is intended to address.

For the forgoing reasons, I dissent from the Court’s denial of rehearing en banc in this case.

. In addition, if it were true that § 1252(f)(2) truly encompassed stay orders as well as injunctions, then § 1252(b)(3)(B) would be reduced to mere surplusage. If § 1252(f)(2) requires a showing by clear and convincing evidence that the final order is prohibited as a matter of law, then obviously stays are not automatic and there is no reason for § 1252(b) to belabor the point. This would be true by definition. Again, we should not read IIRIRA in a manner that reduces any of its provisions to surplusage. See Dunn v. Commodity Futures Trading Comm’n, 519 U.S. 465, 472 , 117 S.Ct. 913 , 137 L.Ed.2d 93 (1997).

. A major premise of the Jove opinion is the uniqueness of an automatic stay under § 362(a). The use of the term stay in the Jove context is arguably inapposite to that of a stay order in an immigration case.