Here are the arguments:Petitioner Nken sought an order from the Fourth Circuit staying his removal to Cameroon while his petition for review of a Board of Immigration Appeals order denying his motion to reopen removal proceedings was pending. Nken acknowledged that Circuit precedent required an alien seeking such a stay to satisfy 8 U. S. C. §1252(f)(2), which sharply restricts the availability of injunctions blocking the removal of an alien from this country, but argued that a court’s authority to stay a removal order should instead be controlled by the traditional criteria governing stays. The Court of Appeals denied the stay motion without comment.
The parties dispute what standard a court should apply when determining whether to grant a stay. Petitioner argues that the “traditional” stay standard should apply, meaning a court should consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether [he] will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties … ; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U. S. 770. The Government argues that §1252(f) should govern, meaning an alien must show “by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law.” Pp. 5–6.
In arguing their case Justice Department lawyers advised the Supreme Court that the government "facilitates" the return of deportees who have been forcibly removed from the United States during the pendency of their appeal, and who ultimately win their case.
Justice Roberts reasoned that:
Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. [Emphasis added].
- Citizenship and Immigration Services stated that "USCIS doesnot have a specific policy, program and/or guidance memo regarding a process for aliens wrongfully removed/deported from the UnitedStates."
- Customs and Border Protection stated that it has no set procedure for facilitating return, does not track cases referred for judicial action, and has no method for identifying whether an alien has succeeded on appeal.
- ICE records show that officials frequently do not know whom they should contact to facilitate return.
- In some situations where ICE used parole, agency employees still expressed confusion about how to physically return a deportee.
- Other records admit that the Government’s use of parole would not restore the status that removed aliens had prior to their removal.
- ICE records do not contain any publicly accessible forms or instructions for individuals whose removal orders have been reversed or vacated.
So much for transparency and accountability.