Posted on April 28, 2009

Supreme Court Makes It Easier to Fight Deportation

AP, April 22, 2009

The United States Supreme Court made it easier for immigrants seeking to avoid deportation to get another chance at a court hearing.

The decision came in the case of Jean Marc Nken, who came to the United States in 2001 and did not leave when his visa expired.

Nken has since applied for asylum, married a U.S. citizen and had a child, who also is an American. But immigration authorities and federal courts have repeatedly rejected asylum claims, which include the prospect of persecution if he is sent back to the African nation of Cameroon, where he says he was detained and beaten for participating in anti-government protests.

The federal appeals courts have split on what standard to apply to requests to temporarily block deportation while taking another look at immigration cases. The 4th U.S. Circuit Court of Appeals in Richmond, Va., applied a very tough standard to Nken’s request for a stay and rejected it.

But Chief Justice John Roberts, writing the 7-2 decision, overturned the appeals court and sent it back for reconsideration, saying courts should use a less stringent standard. “The whole idea is to hold the matter under review in abeyance because the appellate court lacks sufficient time to decide the merits,” Roberts said.

But justices warned the courts not to start routinely offering stays in deportation cases.

“The alien must show both irreparable injury and a likelihood of success on the merits, in addition to establishing that the interest of the parties and the public weigh in his or her favor,” Justice Anthony Kennedy said.

And the threat of deportation isn’t enough to show irreparable injury, Roberts said. “Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return,” Roberts said.