The government may deport an immigrant appealing a deportation order in federal court even before the court rules on the case, unless the court issues a stay of removal. In its 2009 decision in Nken v. Holder, the Supreme Court clarified that the legal standard for stays of removal is the same test courts use for preliminary injunctions. Yet Justice Kennedy expressed frustration that the Court had little data to inform its decision. The Court will likely need to revisit this issue, as doubts cloud the meaning of Nken’s main holdings, in part because the government misled the Court. This Article responds to Justice Kennedy’s request for data and sheds light on the doctrinal controversies surrounding stays by presenting groundbreaking empirical analysis of 1646 cases in all the circuits that hear immigration appeals. It offers a singular window into an arena of adjudication where decisions are rarely articulated in writing. Among our most important findings, the circuit courts denied stays of removal in about half of the appeals that were ultimately granted, an alarming type of error that could result in people being errantly deported to countries where they risk persecution or torture. Our results also suggest that legal doctrine makes an important difference in how accurately courts identify which cases merit a stay, but that no magic bullet exists to avoid errors. In order to adopt an effective approach to stays of removal, courts must confront an important value judgment about whether to err on the side of preventing wrongful removal or on the side of avoiding delayed deportation.
As I note in my response, answering Justice Kennedy’s empirical questions in Nken was no simple task, as stay decisions seldom make their way onto Westlaw or Lexis. So the authors had to mine the PACER dockets of 1,646 cases in all circuits that hear immigration appeals. This ambitious project was definitely worth it, as the findings they uncover are fascinating and important — three of which I focus on in my response: the disparity in stay grant rates among circuits, the variation by circuit in government opposition and immigration attorneys’ stay request practices, and the differences in Type I and Type II errors (or false positives and false negatives, respectively) among circuits that apply the distinct legal standards.
[T]he study’s findings confirm Justice Kennedy’s intuition about the importance of empirical data in this area of immigration law—and in the context of competing legal standards more generally—“so that experience can demonstrate whether [Nken] yields a fair and effective result” and that “Congress can evaluate whether its policy objectives are being realized by the legislation it has enacted.” Justice on the Fly provides an excellent model for how such empirical study can be conducted. Hopefully other scholars will follow suit, and the various actors here (courts, Congress, the Executive Branch, and immigration attorneys) will apply the insights uncovered to improve federal immigration law, policy, and practice.