Kenyeres v. Ashcroft, 538 U.S. 1301 (2003)

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OPINION OF INDIVIDUAL JUSTICE IN CHAMBERS

KENYERES v. ASHCROFT, ATTORNEY GENERAL, et al.

on application for stay

No. 02A777. Decided March 21, 2003

Applicant's request for a stay of his removal from the United States is denied, and a previously granted temporary stay to enable the United States to respond to his claims and to permit Justice Kennedy to consider the matter is vacated. When the Immigration and Naturalization Service initiated removal proceedings against him for overstaying his tourist visa, an Immigration Judge denied applicant's asylum request and ruled that withholding of removal was unavailable because there was reason to believe that applicant had committed a serious nonpolitical crime outside the United States. The Bureau of Immigration Appeals (BIA) affirmed. The Eleventh Circuit denied a stay of removal pending judicial review on the ground that 8 U. S. C. 1252(f)(2) requires a court to adduce clear and convincing evidence before granting such a temporary stay. This is not an appropriate case in which to examine and resolve the important question whether 1252(f)(2)'s heightened standard applies to temporary stays, an issue that has divided the Courts of Appeals. Applicant is unlikely to prevail under either the Eleventh Circuit's standard or the more lenient one adopted by other Courts of Appeals. A reviewing court must uphold an administrative determination in an immigration case unless the evidence compels a contrary conclusion. Given the Immigration Judge's factual findings and the evidence in the removal hearing record, applicant is unable to establish a reasonable likelihood that a reviewing court will be compelled to disagree with the BIA's decision. Thus, his claim is not sufficiently meritorious to create a reasonable probability that four Members of this Court will vote to grant certiorari.

1301

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