NKEN v. HOLDER, ATTORNEY GENERAL

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Syllabus
NKEN v. HOLDER, ATTORNEY GENERAL
certiorari to the united states court of appeals for
the fourth circuit
No. 08–681. Argued January 21, 2009—Decided April 22, 2009
Petitioner Nken sought an order from the Fourth Circuit staying his re
moval to Cameroon while his petition for review of a Board of Immigra
tion 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.
Held: Traditional stay factors, not the demanding § 1252(f)(2) standard,
govern a court of appeals’ authority to stay an alien’s removal pending
judicial review. Pp. 423–436.
(a) This question stems from changes made in the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which “re
pealed the old judicial-review scheme set forth in [8 U. S. C.] § 1105a
[(1994 ed.),] and instituted a new (and significantly more restrictive) one
in . . . § 1252,” Reno v. American-Arab Anti-Discrimination Comm.,
525 U. S. 471, 475 (AAADC). Because courts of appeals lacked jurisdic
tion before IIRIRA to review the removal order of an alien who had
already left the United States, see § 1105a(c), most aliens who appealed
such a decision were given an automatic stay of the removal order pend
ing judicial review, see § 1105a(a)(3). Three changes IIRIRA made are
of particular importance here. First, the repeal of § 1105a allows courts
to adjudicate a petition for review even if the alien is removed while
the petition is pending. Second, the presumption of an automatic stay
was repealed and replaced with a provision stating that “[s]ervice of
the petition . . . does not stay the removal of an alien pending the
court’s decision on the petition, unless the court orders otherwise.”
§ 1252(b)(3)(B). Finally, IIRIRA provided that “no court shall enjoin
the removal of any alien . . . unless [he] shows by clear and convincing
evidence that the entry or execution of such order is prohibited as a
matter of law.” § 1252(f)(2). Pp. 423–425.
(b) The parties dispute what standard a court should apply when de
termining whether to grant a stay. Petitioner argues that the “tradi
tional” stay standard should apply, meaning a court should consider “(1)

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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, 776. 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. 425–426.
(c) An appellate court’s power to hold an order in abeyance while it
assesses the order’s legality has been described as inherent, and part
of a court’s “traditional equipment for the administration of justice.”
Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 9–10. That power
allows a court to act responsibly, by ensuring that the time the court
takes to bring considered judgment to bear on the matter before it does
not result in irreparable injury to the party aggrieved by the order
under review. But a stay “is not a matter of right, even if irreparable
injury might otherwise result to the appellant.” Virginian R. Co. v.
United States, 272 U. S. 658, 672. The parties and the public, while
entitled to both careful review and a meaningful decision, are also enti
tled to the prompt execution of orders that the legislature has made
final. Pp. 426–427.
(d) Section 1252(f) does not refer to “stays,” but rather to authority
to “enjoin the removal of any alien.” An injunction and a stay serve
different purposes. The former is the means by which a court tells
someone what to do or not to do. While in a general sense many orders
may be considered injunctions, the term is typically used to refer to
orders that operate in personam. By contrast, a stay operates upon
the judicial proceeding itself, either by halting or postponing some por
tion of it, or by temporarily divesting an order of enforceability. An
alien seeking a stay of removal pending adjudication of a petition for
review does not ask for a coercive order against the Government, but
instead asks to temporarily set aside the removal order. That kind of
stay, “relat[ing] only to the conduct or progress of litigation before th[e]
court[,] ordinarily is not considered an injunction.” Gulfstream Aero
space Corp. v. Mayacamas Corp., 485 U. S. 271, 279. That § 1252(f)(2)
does not comfortably cover stays is evident in Congress’s use of the
word “stay” in subsection (b)(3)(B) but not subsection (f)(2), particularly
since those subsections were enacted as part of a unified overhaul of
judicial review. The statute’s structure also clearly supports petition
er’s reading: Because subsection (b)(3)(B) changed the basic rules cover
ing stays of removal, the natural place to locate an amendment to the
standard governing stays would have been subsection (b)(3)(B), not a

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420 NKEN v. HOLDER
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provision four subsections later that makes no mention of stays.
Pp. 428–432.
(e) Subsection (f)(2)’s application would not fulfill the historic office of
a stay, which is to hold the matter under review in abeyance to allow
the appellate court sufficient time to decide the merits. Under subsec
tion (f)(2), a stay would only be granted after the court in effect decides
the merits, in an expedited manner. The court would have to do so
under a “clear and convincing evidence” standard that does not so much
preserve the availability of subsequent review as render it redundant.
Nor would subsection (f)(2) allow courts “to prevent irreparable injury
to the parties or to the public” pending review, Scripps-Howard, 316
U. S., at 9; the subsection on its face does not permit any consideration
of harm, irreparable or otherwise. In short, applying § 1252(f)(2) in the
stay context would result in something that does not remotely look like
a stay. As in Scripps-Howard, the Court is loath to conclude that Con
gress would, “without clearly expressing such a purpose, deprive the
Court of Appeals of its customary power to stay orders under review.”
Id., at 11. The Court is not convinced Congress did so in § 1252(f)(2).
Pp. 432–433.
(f) The parties dispute what the traditional four-factor standard en
tails. A stay is not a matter of right, and its issuance depends on the
circumstances of a particular case. The first factor, a strong showing
of a likelihood of success on the merits, requires more than a mere possi
bility that relief will be granted. Similarly, simply showing some possi
bility of irreparable injury fails to satisfy the second factor. See Winter
v. Natural Resources Defense Council, Inc., 555 U. S. 7, 22. Although
removal is a serious burden for many aliens, that burden alone cannot
constitute the requisite irreparable injury. An alien who has been re
moved 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.
The third and fourth factors, harm to the opposing party and the public
interest, merge when the Government is the opposing party. In consid
ering them, courts must be mindful that the Government’s role as the
respondent in every removal proceeding does not make its interest in
each one negligible. There is always a public interest in prompt execu
tion of removal orders, see AAADC, supra, at 490, and that interest
may be heightened by circumstances such as a particularly dangerous
alien, or an alien who has substantially prolonged his stay by abusing
the processes provided to him. A court asked to stay removal cannot
simply assume that the balance of hardships will weigh heavily in the
applicant’s favor. Pp. 433–436.
Vacated and remanded.

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Opinion of the Court
Roberts, C. J., delivered the opinion of the Court, in which Stevens,
Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Ken
nedy, J., filed a concurring opinion, in which Scalia, J., joined, post, p. 437.
Alito, J., filed a dissenting opinion, in which Thomas, J., joined, post,
p. 439.
Lindsay C. Harrison argued the cause for petitioner.
With her on the briefs were Donald B. Verrilli, Jr., Ian
Heath Gershengorn, and Jared O. Freedman.
Then-Acting Solicitor General Kneedler argued the cause
for respondent. With him on the brief were former Solici
tor General Garre, Assistant Attorney General Katsas,
Principal Deputy Assistant Attorney General Dupree, Ni
cole A. Saharsky, Donald Keener, Melissa Neiman-Kelting,
Song E. Park, and Andrew C. MacLachlan.*
Chief Justice Roberts delivered the opinion of the
Court.
It takes time to decide a case on appeal. Sometimes a
little; sometimes a lot. “No court can make time stand still”
while it considers an appeal, Scripps-Howard Radio, Inc. v.
FCC, 316 U. S. 4, 9 (1942), and if a court takes the time it
needs, the court’s decision may in some cases come too late
for the party seeking review. That is why it “has always
been held, . . . that as part of its traditional equipment for
the administration of justice, a federal court can stay the
enforcement of a judgment pending the outcome of an ap
peal.” Id., at 9–10 (footnote omitted). A stay does not
make time stand still, but does hold a ruling in abeyance to
allow an appellate court the time necessary to review it.
*A brief of amici curiae urging reversal was filed for Law Professor
Sarah H. Cleveland et al. by Cecillia D. Wang, Lucas Guttentag, Gerald
L. Neuman, pro se, Steven R. Shapiro, and Lee Gelernt.
Daniel J. Popeo and Richard A. Samp filed a brief for the Washington
Legal Foundation et al. as amici curiae urging affirmance.
Paul R. Q. Wolfson and Adam Raviv filed a brief for the American
Immigration Lawyers Association et al. as amici curiae.

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Opinion of the Court
This case involves a statutory provision that sharply re
stricts the circumstances under which a court may issue an
injunction blocking the removal of an alien from this country.
The Court of Appeals concluded, and the Government con
tends, that this provision applies to the granting of a stay by
a court of appeals while it considers the legality of a removal
order. Petitioner disagrees, and maintains that the author
ity of a court of appeals to stay an order of removal under
the traditional criteria governing stays remains fully intact,
and is not affected by the statutory provision governing in
junctions. We agree with petitioner, and vacate and remand
for application of the traditional criteria.
I
Jean Marc Nken, a citizen of Cameroon, entered the
United States on a transit visa in April 2001. In December
2001, he applied for asylum under 8 U. S. C. § 1158, withhold
ing of removal under § 1231(b)(3), and deferral of removal
under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Art. 3,
Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465
U. N. T. S. 85, see 8 CFR § 208.17 (2008). In his application,
Nken claimed he had been persecuted in the past for partici
pation in protests against the Cameroonian Government, and
would be subject to further persecution if he returns to
Cameroon.
An Immigration Judge denied Nken relief after concluding
that he was not credible. The Board of Immigration Ap
peals (BIA) affirmed, and also declined to remand for consid
eration of Nken’s application for adjustment of status based
on his marriage to an American citizen. After the BIA de
nied a motion to reopen, Nken filed a petition for review of
the BIA’s removal order in the Court of Appeals for the
Fourth Circuit. His petition was denied. Nken then filed
a second motion to reopen, which was also denied, followed
by a second petition for review, which was denied as well.

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Nken filed a third motion to reopen, this time alleging that
changed circumstances in Cameroon made his persecution
more likely. The BIA denied the motion, finding that Nken
had not presented sufficient facts or evidence of changed
country conditions. Nken again sought review in the Court
of Appeals, and also moved to stay his deportation pending
resolution of his appeal. In his motion, Nken recognized
that Fourth Circuit precedent required an alien seeking to
stay a removal order to show by “clear and convincing evi
dence” that the order was “prohibited as a matter of law,” 8
U. S. C. § 1252(f)(2). See Teshome-Gebreegziabher v. Muka
sey, 528 F. 3d 330 (CA4 2008). Nken argued, however, that
this standard did not govern. The Court of Appeals denied
Nken’s motion without comment. App. 74.
Nken then applied to this Court for a stay of removal
pending adjudication of his petition for review, and asked in
the alternative that we grant certiorari to resolve a split
among the Courts of Appeals on what standard governs a
request for such a stay. Compare Teshome-Gebreegziabher,
supra, at 335, and Weng v. United States Atty. Gen., 287 F. 3d
1335 (CA11 2002) (per curiam), with Arevalo v. Ashcroft, 344
F. 3d 1 (CA1 2003), Mohammed v. Reno, 309 F. 3d 95 (CA2
2002), Douglas v. Ashcroft, 374 F. 3d 230 (CA3 2004), Tesfa
michael v. Gonzales, 411 F. 3d 169 (CA5 2005), Bejjani v.
INS, 271 F. 3d 670 (CA6 2001), Hor v. Gonzales, 400 F. 3d
482 (CA7 2005), and Andreiu v. Ashcroft, 253 F. 3d 477 (CA9
2001) (en banc). We granted certiorari, and stayed petition
er’s removal pending further order of this Court. Nken v.
Mukasey, 555 U. S. 1042 (2008).
II
The question we agreed to resolve stems from changes in
judicial review of immigration procedures brought on by the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), 110 Stat. 3009–546, which substan
tially amended the Immigration and Nationality Act (INA),

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8 U. S. C. § 1101 et seq. When Congress passed IIRIRA, it
“repealed the old judicial-review scheme set forth in [8
U. S. C.] § 1105a and instituted a new (and significantly more
restrictive) one in 8 U. S. C. § 1252.” Reno v. American-
Arab Anti-Discrimination Comm., 525 U. S. 471, 475 (1999)
(AAADC). The new review system substantially limited
the availability of judicial review and streamlined all chal
lenges to a removal order into a single proceeding: the peti
tion for review. See, e. g., 8 U. S. C. § 1252(a)(2) (barring re
view of certain removal orders and exercises of executive
discretion); § 1252(b)(3)(C) (establishing strict filing and
briefing deadlines for review proceedings); § 1252(b)(9) (con
solidating challenges into petition for review). Three
changes effected by IIRIRA are of particular importance to
this case.
Before IIRIRA, courts of appeals lacked jurisdiction to re
view the deportation order of an alien who had already left
the United States. See § 1105a(c) (1994 ed.) (“An order of
deportation or of exclusion shall not be reviewed by any
court . . . if [the alien] has departed from the United States
after the issuance of the order”). Accordingly, an alien who
appealed a decision of the BIA was typically entitled to re
main in the United States for the duration of judicial review.
This was achieved through a provision providing most aliens
with an automatic stay of their removal order while judicial
review was pending. See § 1105a(a)(3) (“The service of the
petition for review . . . shall stay the deportation of the alien
pending determination of the petition by the court, unless
the court otherwise directs”).
IIRIRA inverted these provisions to allow for more
prompt removal. First, Congress lifted the ban on adjudica
tion of a petition for review once an alien has departed. See
IIRIRA § 306(b), 110 Stat. 3009–612 (repealing § 1105a).
Second, because courts were no longer prohibited from pro
ceeding with review once an alien departed, see Dada v. Mu

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kasey, 554 U. S. 1, 22 (2008), Congress repealed the pre
sumption of an automatic stay, and replaced it with the
following: “Service of the petition on the officer or employee
does not stay the removal of an alien pending the court’s
decision on the petition, unless the court orders otherwise.”
8 U. S. C. § 1252(b)(3)(B) (2006 ed.).
Finally, IIRIRA restricted the availability of injunctive
relief:
“Limit on injunctive relief
“(1) In general
“Regardless of the nature of the action or claim or of
the identity of the party or parties bringing the action,
no court (other than the Supreme Court) shall have ju
risdiction or authority to enjoin or restrain the opera
tion of the provisions of part IV of this subchapter, as
amended by [IIRIRA], other than with respect to the
application of such provisions to an individual alien
against whom proceedings under such part have been
initiated.
“(2) Particular cases
“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.” § 1252(f).
This provision, particularly subsection (f)(2), is the source of
the parties’ disagreement.
III
The parties agree that courts of appeals considering a peti
tion for review of a removal order may prevent that order
from taking effect and therefore block removal while adjudi
cating the petition. They disagree over the standard a court
should apply in deciding whether to do so. Nken argues
that the “traditional” standard for a stay applies. Under

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that standard, a court considers four factors: “(1) whether
the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will
be irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties interested
in the proceeding; and (4) where the public interest lies.”
Hilton v. Braunskill, 481 U. S. 770, 776 (1987).
The Government disagrees, arguing that a stay is simply
a form of injunction, or alternatively that the relief peti
tioner seeks is more accurately characterized as injunctive,
and therefore that the limits on injunctive relief set forth in
subsection (f)(2) apply. Under that provision, a court may
not “enjoin” the removal of an alien subject to a final removal
order, “unless the alien shows by clear and convincing evi
dence that the entry or execution of such order is prohibited
as a matter of law.” 8 U. S. C. § 1252(f)(2). Mindful that
statutory interpretation turns on “the language itself, the
specific context in which that language is used, and the
broader context of the statute as a whole,” Robinson v. Shell
Oil Co., 519 U. S. 337, 341 (1997), we conclude that the tradi
tional stay factors—not § 1252(f)(2)—govern a request for a
stay pending judicial review.
A
An appellate court’s power to hold an order in abeyance
while it assesses the legality of the order has been described
as “inherent,” preserved in the grant of authority to federal
courts to “issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages
and principles of law,” All Writs Act, 28 U. S. C. § 1651(a).
See In re McKenzie, 180 U. S. 536, 551 (1901). The Court
highlighted the historic pedigree and importance of the
power in Scripps-Howard, 316 U. S. 4, holding in that case
that Congress’s failure expressly to confer the authority in a
statute allowing appellate review should not be taken as an
implicit denial of that power.

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The Court in Scripps-Howard did not decide what “crite
ria . . . should govern the Court in exercising th[e] power”
to grant a stay. Id., at 17. Nor did the Court consider
under what circumstances Congress could deny that author
ity. See ibid. The power to grant a stay pending review,
however, was described as part of a court’s “traditional
equipment for the administration of justice.” Id., at 9–10.
That authority was “firmly imbedded in our judicial system,”
“consonant with the historic procedures of federal appellate
courts,” and “a power as old as the judicial system of the
nation.” Id., at 13, 17.
The authority to hold an order in abeyance pending review
allows an appellate court to act responsibly. A reviewing
court must bring considered judgment to bear on the matter
before it, but that cannot always be done quickly enough to
afford relief to the party aggrieved by the order under re
view. The choice for a reviewing court should not be be
tween justice on the fly or participation in what may be an
“idle ceremony.” Id., at 10. The ability to grant interim
relief is accordingly not simply “[a]n historic procedure for
preserving rights during the pendency of an appeal,” id., at
15, but also a means of ensuring that appellate courts can
responsibly fulfill their role in the judicial process.
At the same time, a reviewing court may not resolve a
conflict between considered review and effective relief by re
flexively holding a final order in abeyance pending review.
A stay is an “intrusion into the ordinary processes of admin
istration and judicial review,” Virginia Petroleum Jobbers
Assn. v. FPC, 259 F. 2d 921, 925 (CADC 1958) (per curiam),
and accordingly “is not a matter of right, even if irreparable
injury might otherwise result to the appellant,” Virginian
R. Co. v. United States, 272 U. S. 658, 672 (1926). The par
ties and the public, while entitled to both careful review and
a meaningful decision, are also generally entitled to the
prompt execution of orders that the legislature has made
final.

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B
Subsection (f)(2) does not by its terms refer to “stays” but
instead to the authority to “enjoin the removal of any alien.”
The parties accordingly begin by disputing whether a stay
is simply a type of injunction, covered by the term “enjoin,”
or a different form of relief. An injunction and a stay have
typically been understood to serve different purposes. The
former is a means by which a court tells someone what to
do or not to do. When a court employs “the extraordinary
remedy of injunction,” Weinberger v. Romero-Barcelo, 456
U. S. 305, 312 (1982), it directs the conduct of a party, and
does so with the backing of its full coercive powers. See
Black’s Law Dictionary 784 (6th ed. 1990) (defining “injunc
tion” as “[a] court order prohibiting someone from doing
some specified act or commanding someone to undo some
wrong or injury”).
It is true that “ ‘[i]n a general sense, every order of a court
which commands or forbids is an injunction; but in its ac
cepted legal sense, an injunction is a judicial process or man
date operating in personam.’ ” Id., at 800 (8th ed. 2004)
(quoting 1 H. Joyce, A Treatise on the Law Relating to In
junctions § 1, pp. 2–3 (1909)). This is so whether the injunc
tion is preliminary or final; in both contexts, the order is
directed at someone, and governs that party’s conduct.
By contrast, instead of directing the conduct of a particu
lar actor, a stay operates upon the judicial proceeding itself.
It does so either by halting or postponing some portion of
the proceeding, or by temporarily divesting an order of en
forceability. See Black’s, supra, at 1413 (6th ed. 1990) (de
fining “stay” as “a suspension of the case or some designated
proceedings within it”).
A stay pending appeal certainly has some functional over
lap with an injunction, particularly a preliminary one. Both
can have the practical effect of preventing some action be
fore the legality of that action has been conclusively deter
mined. But a stay achieves this result by temporarily sus

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pending the source of authority to act—the order or judg
ment in question—not by directing an actor’s conduct. A
stay “simply suspend[s] judicial alteration of the status quo,”
while injunctive relief “grants judicial intervention that has
been withheld by lower courts.” Ohio Citizens for Respon
sible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986)
(Scalia, J., in chambers); see also Brown v. Gilmore, 533
U. S. 1301, 1303 (2001) (Rehnquist, C. J., in chambers) (“[A]p
plicants are seeking not merely a stay of a lower court
judgment, but an injunction against the enforcement of a
presumptively valid state statute”); Turner Broadcasting
System, Inc. v. FCC, 507 U. S. 1301, 1302 (1993) (same) (“By
seeking an injunction, applicants request that I issue an
order altering the legal status quo”).
An alien seeking a stay of removal pending adjudication
of a petition for review does not ask for a coercive order
against the Government, but rather for the temporary set
ting aside of the source of the Government’s authority to
remove. Although such a stay acts to “ba[r] Executive
Branch officials from removing [the applicant] from the coun
try,” post, at 445 (Alito, J., dissenting), it does so by return
ing to the status quo—the state of affairs before the removal
order was entered.* That kind of stay, “relat[ing] only to
*The dissent maintains that “[a]n order preventing an executive officer
from [enforcing a removal order] does not ‘simply suspend judicial alter
ation of the status quo,’ ” but instead “blocks executive officials from carry
ing out what they view as proper enforcement of the immigration laws.”
Post, at 445 (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC,
479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers)). But the relief
sought here would simply suspend administrative alteration of the status
quo, and we have long recognized that such temporary relief from an ad
ministrative order—just like temporary relief from a court order—is con
sidered a stay. See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4,
10–11 (1942).
The dissent would distinguish Scripps-Howard on the ground that Nken
does not really seek to stay a final order of removal, but instead seeks
“to enjoin the Executive Branch from enforcing his removal order pend
ing judicial review of an entirely separate order [denying a motion to re

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the conduct or progress of litigation before th[e] court[,] ordi
narily is not considered an injunction.” Gulfstream Aero
space Corp. v. Mayacamas Corp., 485 U. S. 271, 279 (1988);
see Fed. Rule App. Proc. 8(a)(1)(A) (referring to interim re
lief from “the judgment or order of a district court pending
appeal” as “a stay”). Whether such a stay might technically
be called an injunction is beside the point; that is not the
label by which it is generally known. The sun may be a
star, but “starry sky” does not refer to a bright summer day.
The terminology of subsection (f)(2) does not comfortably
cover stays.
This conclusion is reinforced by the fact that when Con
gress wanted to refer to a stay pending adjudication of a
petition for review in § 1252, it used the word “stay.” In
subsection (b)(3)(B), under the heading “Stay of order,” Con
gress provided that service of a petition for review “does not
stay the removal of an alien pending the court’s decision on
the petition, unless the court orders otherwise.” By con
trast, the language of subsection (f) says nothing about
stays, but is instead titled “Limit on injunctive relief,” and
refers to the authority of courts to “enjoin the removal of
any alien.” § 1252(f)(2).
“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts inten
tionally and purposely in the disparate inclusion or exclu
sion.” INS v. Cardoza-Fonseca, 480 U. S. 421, 432 (1987)
(internal quotation marks omitted). This is particularly
true here, where subsections (b)(3)(B) and (f)(2) were
open].” Post, at 442, n. But a determination that the BIA should have
granted Nken’s motion to reopen would necessarily extinguish the finality
of the removal order. See Tr. of Oral Arg. 42 (Acting Solicitor General)
(“[I]f the motion to reopen is granted, that vacates the final order of re
moval and, therefore, there is no longer a final order of removal pursuant
to which the alien could be removed”). The relief sought here is properly
termed a “stay” because it suspends the effect of the removal order.

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enacted as part of a unified overhaul of judicial review
procedures.
Subsection (b)(3)(B) changed the basic rules covering stays
of removal, and would have been the natural place to locate
an amendment to the traditional standard governing the
grant of stays. Under the Government’s view, however,
Congress placed such a provision four subsections later, in a
subsection that makes no mention of stays, next to a provi
sion prohibiting classwide injunctions against the operation
of removal provisions. See 8 U. S. C. § 1252(f)(1) (permit
ting injunctions only “with respect to the application of such
provisions to an individual alien”); AAADC, 525 U. S., at
481–482. Although the dissent “would not read too much
into Congress’ decision to locate such a provision in one
subsection rather than in another,” post, at 446, the Court
frequently takes Congress’s structural choices into consid
eration when interpreting statutory provisions. See, e. g.,
Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554
U. S. 33, 47 (2008).
The Government counters that petitioner’s view “fails to
give any operative effect to Section 1252(f)(2).” Brief for
Respondent 32. Initially, this argument undercuts the Gov
ernment’s textual reading. It is one thing to propose that
“enjoin” in subsection (f)(2) covers a broad spectrum of court
orders and relief, including both stays and more typical in
junctions. It is quite another to suggest that Congress used
“enjoin” to refer exclusively to stays, so that a failure to
include stays in subsection (f)(2) would render the provision
superfluous. If nothing else, the terms are by no means
synonymous.
Leaving that aside, there is something to the Govern
ment’s point; the exact role of subsection (f)(2) under peti
tioner’s view is not easy to explain. Congress may have
been concerned about the possibility that courts would en
join application of particular provisions of the INA, see 8
U. S. C. § 1252(f)(1) (prohibiting injunctions “other than with

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432 NKEN v. HOLDER
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respect to the application of [part IV of the INA] to an indi
vidual alien”), or about injunctions that might be available
under the limited habeas provisions of subsection (e). Or
perhaps subsection (f)(2) was simply included as a catchall
provision raising the bar on any availability (even unforesee
able availability) of “the extraordinary remedy of injunc
tion.” Weinberger, 456 U. S., at 312. In any event, the
Government’s point is not enough to outweigh the strong in
dications that subsection (f)(2) is not reasonably understood
to be directed at stays.
C
Applying the subsection (f)(2) standard to stays pending
appeal would not fulfill the historic office of such a stay. The
whole idea is to hold the matter under review in abeyance
because the appellate court lacks sufficient time to decide the
merits. Under the subsection (f)(2) standard, however, a
stay would only be granted after the court in effect decides
the merits, in an expedited manner. The court would have
to do so under a standard—“clear and convincing evi
dence”—that does not so much preserve the availability of
subsequent review as render it redundant. Subsection
(f)(2), in short, would invert the customary role of a stay,
requiring a definitive merits decision earlier rather than
later.
The authority to grant stays has historically been justified
by the perceived need “to prevent irreparable injury to the
parties or to the public” pending review. Scripps-Howard,
316 U. S., at 9. Subsection (f)(2) on its face, however, does
not allow any consideration of harm, irreparable or other
wise, even harm that may deprive the movant of his right to
petition for review of the removal order. Subsection (f)(2)
does not resolve the dilemma stays historically addressed:
what to do when there is insufficient time to resolve the mer
its and irreparable harm may result from delay. The provi
sion instead requires deciding the merits under a higher

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standard, without regard to the prospect of irreparable
harm.
In short, applying the subsection (f)(2) standard in the
stay context results in something that does not remotely look
like a stay. Just like the Court in Scripps-Howard, we are
loath to conclude that Congress would, “without clearly ex
pressing such a purpose, deprive the Court of Appeals of its
customary power to stay orders under review.” Id., at 11.
Subsection (f)(2) would certainly deprive courts of their
“customary” stay power. Our review does not convince us
that Congress did that in subsection (f)(2). The four-factor
test is the “traditional” one, Hilton, 481 U. S., at 777, and
the Government has not overcome the “presumption favor
ing the retention of long-established and familiar principles,
except when a statutory purpose to the contrary is evident,”
Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952). We
agree with petitioner that an alien need not satisfy the de
manding standard of § 1252(f)(2) when asking a court of ap
peals to stay removal pending judicial review.
IV
So what standard does govern? The question presented,
as noted, offers the alternative of “ ‘the traditional test for
stays,’ ” 555 U. S., at 1042, but the parties dispute what
that test is. See Brief for Respondent 46 (“[T]he four
part standard requires a more demanding showing than
petitioner suggests”); Reply Brief for Petitioner 26 (“The
Government argues . . . that the [stay] test should be
reformulated”).
“A stay is not a matter of right, even if irreparable injury
might otherwise result.” Virginian R. Co., 272 U. S., at 672.
It is instead “an exercise of judicial discretion,” and “[t]he
propriety of its issue is dependent upon the circumstances of
the particular case.” Id., at 672–673; see Hilton, supra, at
777 (“[T]he traditional stay factors contemplate individual
ized judgments in each case”). The party requesting a stay

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434 NKEN v. HOLDER
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bears the burden of showing that the circumstances justify
an exercise of that discretion. See, e. g., Clinton v. Jones,
520 U. S. 681, 708 (1997); Landis v. North American Co., 299
U. S. 248, 255 (1936).
The fact that the issuance of a stay is left to the court’s
discretion “does not mean that no legal standard governs
that discretion. . . . ‘[A] motion to [a court’s] discretion is a
motion, not to its inclination, but to its judgment; and its
judgment is to be guided by sound legal principles.’ ” Mar
tin v. Franklin Capital Corp., 546 U. S. 132, 139 (2005) (quot
ing United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC
Va. 1807) (Marshall, C. J.)). As noted earlier, those legal
principles have been distilled into consideration of four fac
tors: “(1) whether the stay applicant has made a strong show
ing that he is likely to succeed on the merits; (2) whether
the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.” Hilton, supra, at 776. There is sub
stantial overlap between these and the factors governing
preliminary injunctions, see Winter v. Natural Resources
Defense Council, Inc., 555 U. S. 7, 24 (2008); not because the
two are one and the same, but because similar concerns arise
whenever a court order may allow or disallow anticipated
action before the legality of that action has been conclu
sively determined.
The first two factors of the traditional standard are the
most critical. It is not enough that the chance of success on
the merits be “better than negligible.” Sofinet v. INS, 188
F. 3d 703, 707 (CA7 1999) (internal quotation marks omitted).
Even petitioner acknowledges that “[m]ore than a mere ‘pos
sibility’ of relief is required.” Reply Brief for Petitioner 21
(quoting Brief for Respondent 47). By the same token, sim
ply showing some “possibility of irreparable injury,” Abbassi
v. INS, 143 F. 3d 513, 514 (CA9 1998), fails to satisfy the

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second factor. As the Court pointed out earlier this Term,
the “ ‘possibility’ standard is too lenient.” Winter, supra,
at 22.
Although removal is a serious burden for many aliens, it
is not categorically irreparable, as some courts have said.
See, e. g., Ofosu v. McElroy, 98 F. 3d 694, 699 (CA2 1996)
(“Ordinarily, when a party seeks [a stay] pending appeal, it
is deemed that exclusion is an irreparable harm”); see also
Petitioner’s Emergency Motion for a Stay 12 (“[T]he equities
particularly favor the alien facing deportation in immigra
tion cases where failure to grant the stay would result in
deportation before the alien has been able to obtain judicial
review”).
The automatic stay prior to IIRIRA reflected a recogni
tion of the irreparable nature of harm from removal before
decision on a petition for review, given that the petition
abated upon removal. Congress’s decision in IIRIRA to
allow continued prosecution of a petition after removal elimi
nated the reason for categorical stays, as reflected in the
repeal of the automatic stay in subsection (b)(3)(B). It is
accordingly plain that the burden of removal alone cannot
constitute the requisite irreparable injury. 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, along with restoration of the
immigration status they had upon removal. See Brief for
Respondent 44.
Once an applicant satisfies the first two factors, the tradi
tional stay inquiry calls for assessing the harm to the oppos
ing party and weighing the public interest. These factors
merge when the Government is the opposing party. In con
sidering them, courts must be mindful that the Government’s
role as the respondent in every removal proceeding does not
make the public interest in each individual one negligible, as
some courts have concluded. See, e. g., Mohammed, 309

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436 NKEN v. HOLDER
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F. 3d, at 102 (Government harm is nothing more than “one
alien [being] permitted to remain while an appeal is de
cided”); Ofosu, supra, at 699 (the Government “suffers no
offsetting injury” in removal cases).
Of course there is a public interest in preventing aliens
from being wrongfully removed, particularly to countries
where they are likely to face substantial harm. But that is
no basis for the blithe assertion of an “absence of any injury
to the public interest” when a stay is granted. Petitioner’s
Emergency Motion for a Stay 13. There is always a public
interest in prompt execution of removal orders: The contin
ued presence of an alien lawfully deemed removable under
mines the streamlined removal proceedings IIRIRA estab
lished, and “permit[s] and prolong[s] a continuing violation of
United States law.” AAADC, 525 U. S., at 490. The inter
est in prompt removal may be heightened by the circum
stances as well—if, for example, the alien is particularly dan
gerous, or has substantially prolonged his stay by abusing
the processes provided to him. See ibid. (“Postponing justi
fiable deportation (in the hope that the alien’s status will
change—by, for example, marriage to an American citizen—
or simply with the object of extending the alien’s unlawful
stay) is often the principal object of resistance to a deporta
tion proceeding”). A court asked to stay removal cannot
simply assume that “[o]rdinarily, the balance of hardships
will weigh heavily in the applicant’s favor.” Andreiu, 253
F. 3d, at 484.
* * *
The Court of Appeals did not indicate what standard it
applied in denying Nken a stay, but Circuit precedent re
quired the application of § 1252(f)(2). Because we have
concluded that § 1252(f)(2) does not govern, we vacate the
judgment of the Court of Appeals and remand the case for
consideration of Nken’s motion for a stay under the stand
ards set forth in this opinion.
It is so ordered.

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437 Cite as: 556 U. S. 418 (2009)
Kennedy, J., concurring
Justice Kennedy, with whom Justice Scalia joins,
concurring.
I join the Court’s opinion and agree that the traditional
four-part standard governs an application to stay the re
moval of an alien pending judicial review. This is the less
stringent of the two standards at issue. See Kenyeres v.
Ashcroft, 538 U. S. 1301, 1303–1305 (2003) (Kennedy, J., in
chambers).
It seems appropriate to underscore that in most cases the
debate about which standard should apply will have little
practical effect provided the court considering the stay appli
cation adheres to the demanding standard set forth. A stay
of removal is an extraordinary remedy that should not be
granted in the ordinary case, much less awarded as of right.
Virginian R. Co. v. United States, 272 U. S. 658, 672–673
(1926); see also Winter v. Natural Resources Defense Coun
cil, Inc., 555 U. S. 7, 24 (2008).
No party has provided the Court with empirical data on
the number of stays granted, the correlation between stays
granted and ultimate success on the merits, or similar mat
ters. The statistics would be helpful so that experience can
demonstrate whether this decision yields a fair and effec
tive result. Then, too, Congress can evaluate whether its
policy objectives are being realized by the legislation it
has enacted. Based on the Government’s representations at
oral argument, however, there are grounds for concern. See
Tr. of Oral Arg. 35 (“[W]e do not have empirical data, . . .
but [stays of removal] are—in the Ninth Circuit in our expe
rience— . . . granted quite frequently”). This concern is of
particular importance in those Circuits with States on our
international borders. The Court of Appeals for the Ninth
Circuit, for example, considers over half of all immigration
petitions filed nationwide, and immigration cases compose
nearly half of the Ninth Circuit’s docket. See Catterson,
Symposium, Ninth Circuit Conference: Changes in Appellate
Caseload and Its Processing, 48 Ariz. L. Rev. 287, 297 (2006).

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438 NKEN v. HOLDER
Kennedy, J., concurring
Under either standard, even the less stringent standard
the Court adopts today, courts should not grant stays of re
moval on a routine basis. The passage of the Illegal Immi
gration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), 110 Stat. 3009–546, reinforces this point. Before
IIRIRA, aliens who left the United States no longer had the
ability to seek review of their removal orders, see 8 U. S. C.
§ 1105a(c) (1994 ed.) (repealed 1996), so they could more eas
ily have established irreparable harm due to their removal.
It is perhaps for this reason Congress decided to “stay the
deportation of [an] alien pending determination of the peti
tion by the court, unless the court otherwise direct[ed].”
§ 1105a(a)(3) (same). IIRIRA, however, removed that prohi
bition (as well as the automatic stay provision), and courts
may now review petitions after aliens have been removed.
See Brief for Respondent 44; ante, at 424, 435; post, at 443,
447 (Alito, J., dissenting).
This change should mean that obtaining a stay of removal
is more difficult. Under the Court’s four-part standard, the
alien must show both irreparable injury and a likelihood of
success on the merits, in addition to establishing that the
interests of the parties and the public weigh in his or her
favor. Ante, at 434–435. As the Court explains, because
aliens may continue to seek review and obtain relief after
removal, “the burden of removal alone cannot constitute the
requisite irreparable injury.” Ante, at 435. As a result of
IIRIRA there must be a particularized, irreparable harm be
yond mere removal to justify a stay.
That is not to say that demonstration of irreparable harm,
without more, is sufficient to justify a stay of removal. The
Court has held that “[a] stay is not a matter of right, even if
irreparable injury might otherwise result.” Virginian R.
Co., supra, at 672. When considering success on the merits
and irreparable harm, courts cannot dispense with the re
quired showing of one simply because there is a strong likeli
hood of the other. This is evident in the decisions of Justices

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439 Cite as: 556 U. S. 418 (2009)
Alito, J., dissenting
of the Court applying the traditional factors. See, e. g.,
Curry v. Baker, 479 U. S. 1301, 1302 (1986) (Powell, J., in
chambers) (“It is no doubt true that, absent [a stay], the ap
plicant here will suffer irreparable injury. This fact alone is
not sufficient to justify a stay”); Ruckelshaus v. Monsanto
Co., 463 U. S. 1315, 1317 (1983) (Blackmun, J., in chambers)
(“[L]ikelihood of success on the merits need not be con
sidered . . . if the applicant fails to show irreparable injury
from the denial of the stay”). As those decisions make clear,
“ ‘the applicant must meet a heavy burden of showing not
only that the judgment of the lower court was erroneous on
the merits, but also that the applicant will suffer irreparable
injury if the judgment is not stayed pending his appeal.’ ”
Williams v. Zbaraz, 442 U. S. 1309, 1311 (1979) (Stevens, J.,
in chambers) (quoting Whalen v. Roe, 423 U. S. 1313, 1316
(1975) (Marshall, J., in chambers)).
Justice Alito, with whom Justice Thomas joins,
dissenting.
The Court’s decision nullifies an important statutory pro
vision that Congress enacted when it reformed the immigra
tion laws in 1996. I would give effect to that provision, and
I therefore respectfully dissent.
I
When an alien is charged with being removable from the
United States, an immigration judge (IJ) conducts a hearing,
receives and considers evidence, and determines whether
the alien is removable. See 8 U. S. C. § 1229a(a); 8 CFR
§§ 1240.1(a)(1)(i), (c) (2008). If the IJ enters an order of re
moval, that order becomes final when the alien’s appeal to
the Board of Immigration Appeals (Board) is unsuccessful
or the alien declines to appeal to the Board. See 8 U. S. C.
§ 1101(a)(47)(B); 8 CFR §§ 1241.1, 1241.31. Once an order of
removal has become final, it may be executed at any time.
See 8 U. S. C. §§ 1231(a)(1)(B)(i), 1252(b)(8)(C); 8 CFR

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440 NKEN v. HOLDER
Alito, J., dissenting
§ 1241.33. Removal orders “are self-executing orders, not
dependent upon judicial enforcement.” Stone v. INS, 514
U. S. 386, 398 (1995).
After the removal order is final and enforceable, the alien
may file a motion to reopen before the IJ, see 8 U. S. C.
§ 1229a(c)(7), or a petition for review before the appropriate
court of appeals, see § 1252(a)(1). While either challenge is
pending, the alien may ask the Executive Branch to stay
its own hand. See 8 CFR §§ 241.6(a)–(b), 1241.6(a)–(b). If,
however, the alien wants a court to restrain the Executive
from executing a final and enforceable removal order, the
alien must seek an injunction to do so. See 8 U. S. C.
§ 1252(a)(1) (making a final order of removal subject to 28
U. S. C. § 2349(b), which provides that an “interlocutory in
junction” can “restrain” the “execution of ” a final order).
The plain text of the Illegal Immigration Reform and Immi
grant Responsibility Act of 1996 (IIRIRA), Div. C, 110 Stat.
3009–546, provides the relevant legal standard for granting
such relief: “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).
II
In my view, petitioner’s request for an order preventing
his removal pending disposition of his current petition for
review was governed by 8 U. S. C. § 1252(f)(2). Petitioner is
“remova[ble] . . . pursuant to a final order,” and he sought a
court order to “enjoin” the Executive Branch’s execution of
that removal.
A
There is no dispute that petitioner is “remova[ble] . . . pur
suant to a final order.” Ibid. On March 4, 2005, the IJ de
termined that petitioner was removable under § 1227(a)(1)(B)
and denied his claims for asylum, withholding of removal,

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Alito, J., dissenting
and protection under the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Pun
ishment, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465
U. N. T. S. 85. See App. 32–43. Petitioner appealed to the
Board, and on June 16, 2006, the Board affirmed. Id., at
44–49. On that date, petitioner’s order of removal became
administratively final, and the Executive Branch became le
gally entitled to remove him from the United States. See 8
U. S. C. § 1231(a)(1)(B)(i); 8 CFR § 1241.33(a).
B
The only remaining question, therefore, is whether the in
terim equitable relief that petitioner sought was an order
“enjoin[ing]” his removal as that term is used in 8 U. S. C.
§ 1252(f)(2). I believe that it was.
In ordinary usage, the term “enjoin” means to “require,”
“command,” or “direct” an action, or to “require a person . . .
to perform, or to abstain or desist from, some act.” Black’s
Law Dictionary 529 (6th ed. 1990) (hereinafter Black’s). See
also Webster’s Third New International Dictionary 754
(1993) (defining “enjoin” to mean “to direct, prescribe, or im
pose by order”; “to prohibit or restrain by a judicial order
or decree”). When an alien subject to a final order of re
moval seeks to bar executive officials from acting upon that
order pending judicial consideration of a petition for review,
the alien is seeking to “enjoin” his or her removal. The
alien is seeking an order “restrain[ing]” those officials and
“requir[ing]” them to “abstain” from executing the order of
removal.
The Court concludes that § 1252(f)(2) does not apply in this
case because, in the Court’s view, that provision applies only
to requests for an injunction and not to requests for a stay.
That conclusion is wrong for at least three reasons.
1
First, a stay is “a kind of injunction,” Black’s 1413, as even
the Court grudgingly concedes, see ante, at 430 (an order

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442 NKEN v. HOLDER
Alito, J., dissenting
blocking an alien’s removal pending judicial review “might
technically be called an injunction”). See also Teshome-
Gebreegziabher v. Mukasey, 528 F. 3d 330, 333 (CA4 2008)
([T]he term “stay” “is a subset of the broader term ‘enjoin’ ”);
Kijowska v. Haines, 463 F. 3d 583, 589 (CA7 2006) (a stay “is
a form of injunction”); Weng v. United States Atty. Gen., 287
F. 3d 1335, 1338 (CA11 2002) (per curiam) (“[T]he plain
meaning of enjoin includes the grant of a stay”).*
Both statutes and judicial decisions refer to orders that
“stay” legal proceedings as injunctions. For example, the
Anti-Injunction Act provides that “[a] court of the United
States may not grant an injunction to stay proceedings in a
State court.” 28 U. S. C. § 2283. See also Hill v. McDon
ough, 547 U. S. 573, 578–580 (2006) (habeas petitioner sought
injunction to stay his execution); McMillen v. Anderson, 95
*Thus, it is unremarkable that we have used the word “stay” to describe
an injunction blocking an administrative order pending judicial review.
See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942); ante, at
429–430, n. Indeed, our decision in Scripps-Howard, supra, at 11—like
the Court’s decision today, ante, at 427, 433–434—relied heavily on Virgin-
ian R. Co. v. United States, 272 U. S. 658 (1926), the latter of which re
ferred to “stays” as a subset of “injunctions.” See id., at 669 (noting that
the power to issue a “stay” “to preserve the status quo pending an appeal”
is “an incident” of the power “to enjoin” an administrative order); see also
id., at 671–672 (referring interchangeably to a three-judge district court’s
power to issue “injunctions” and “stays”). In any event, both Scripps-
Howard and Virginian are inapposite because petitioner here did not seek
to “stay” his removal order pending judicial review of that order; rather,
he sought to enjoin the Executive Branch from enforcing his removal
order pending judicial review of an entirely separate order. See Stone v.
INS, 514 U. S. 386, 395 (1995) (holding that the IJ’s removal order and the
Board’s denial of a motion to reopen are “two separate final orders”); Bak
v. INS, 682 F. 2d 441, 442 (CA3 1982) (per curiam) (“The general rule is
that a motion to reopen deportation proceedings is a new, independently
reviewable order”); Brief for Respondent 51–52 (differentiating petition
er’s challenge to the IJ’s removal order, which “became final well over a
year ago,” from “petitioner’s latest challenge[, which] is currently pend
ing” before the Court of Appeals); id., at 13–14, 36–37 (similar).

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Alito, J., dissenting
U. S. 37, 42 (1877) (“[Petitioner] can, if he is wrongfully
taxed, stay the proceeding for its collection by process of
injunction”); Nivens v. Gilchrist, 319 F. 3d 151, 153 (CA4
2003) (denial of “injunction” to “stay [a] trial”); Jove Eng.,
Inc. v. IRS, 92 F. 3d 1539, 1546 (CA11 1996) (automatic stay
is “essentially a court-ordered injunction”). And it is re
vealing that the standard that the Court adopts for deter
mining whether a stay should be ordered is the standard that
is used in weighing an application for a preliminary injunc
tion. Ante, at 434 (adopting preliminary injunction stand
ard set out in Winter v. Natural Resources Defense Council,
Inc., 555 U. S. 7, 24 (2008)).
2
Second, the context surrounding IIRIRA’s enactment sug
gests that § 1252(f)(2) was an important—not a superfluous—
statutory provision. This Court should interpret it
accordingly.
IIRIRA was designed to expedite removal and restrict the
ability of aliens to remain in this country pending judicial
review. Before IIRIRA, the filing of a petition for review
automatically stayed removal unless the court of appeals
directed otherwise. 8 U. S. C. § 1105a(a)(3) (1994 ed.) (re
pealed 1996). IIRIRA repealed this provision and, to drive
home the point, specifically provided that “[s]ervice of the
petition [for judicial review] . . . does not stay the removal of
an alien pending the court’s decision on the petition, unless
the court orders otherwise.” § 1252(b)(3)(B) (2006 ed.) (em
phasis added). In addition, “many provisions of IIRIRA are
aimed at protecting the Executive’s discretion from the
courts.” Reno v. American-Arab Anti-Discrimination
Comm., 525 U. S. 471, 486 (1999) (emphasis deleted). In
deed, “protecting the Executive’s discretion from the
courts . . . can fairly be said to be the theme of the legisla
tion.” Ibid. Section 1252(f)(2), which provides that a court
may not block removal during the judicial review process

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444 NKEN v. HOLDER
Alito, J., dissenting
unless a heightened standard is met, fits perfectly within
this scheme.
The Court’s interpretation, by contrast, produces anoma
lous results. If § 1252(f)(2) does not provide the standard to
be used by the courts in determining whether an alien should
be permitted to remain in this country pending judicial re
view, then IIRIRA left the formulation of that standard
entirely to the discretion of the courts. A Congress that
sought to expedite removal and limit judicial discretion is
unlikely to have taken that approach.
More important, if § 1252(f)(2) does not set the standard
for blocking removal pending judicial review, then, as the
Court concedes, “the exact role of subsection (f)(2) . . . is not
easy to explain.” Ante, at 431. “In construing a statute we
are obliged to give effect, if possible, to every word Congress
used.” Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979).
We should not lightly conclude that Congress enacted a
provision that serves no function, and the Court’s hyper
technical distinction between an injunction and a stay does
not provide a sufficient justification for adopting an interpre
tation that renders § 1252(f)(2) meaningless. That result is
particularly anomalous in the context of § 1252(f)(2), which
Congress said should apply “[n]otwithstanding any other
provision of law.”
3
Third, if stays and injunctions really are two entirely dis
tinct concepts, the order that petitioner sought here is best
viewed as an injunction. Insofar as there is a difference be
tween the two concepts, I agree with the Court that it boils
down to this: “A stay ‘simply suspend[s] judicial alteration
of the status quo,’ ” whereas an injunction “ ‘grants judicial
intervention that has been withheld by lower courts.’ ”
Ante, at 429 (quoting Ohio Citizens for Responsible Energy,
Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in cham
bers)). See also Black’s 1413 (defining a stay as an “act of
arresting a judicial proceeding by the order of a court”).

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445 Cite as: 556 U. S. 418 (2009)
Alito, J., dissenting
Here, petitioner did not seek an order “suspend[ing] judicial
alteration of the status quo.” Instead, he sought an order
barring Executive Branch officials from removing him from
the country. Such an order is best viewed as an injunction.
See McCarthy v. Briscoe, 429 U. S. 1317, 1317, n. 1 (1976)
(Powell, J., in chambers) (although applicants claimed to seek
a “stay,” the court granted an “injunction” because “the ap
plicants actually [sought] affirmative relief ” against execu
tive officials).
Even if petitioner had sought to block his removal pending
judicial review of the order of removal, any interim order
blocking his removal would best be termed an injunction.
When the Board affirmed petitioner’s final removal order in
2006, it gave the Executive Branch all of the legal authority
it needed to remove petitioner from the United States imme
diately. An order preventing an executive officer from exer
cising that authority does not “simply suspend judicial alter
ation of the status quo.” Ohio Citizens for Responsible
Energy, supra, at 1313. Instead, such an order is most
properly termed an injunction because it blocks executive
officials from carrying out what they view as proper enforce
ment of the immigration laws. And in that regard, it is sig
nificant that the Hobbs Act—which governs judicial review
under IIRIRA, see 8 U. S. C. § 1252(a)(1)—refers to an “ap
plication for an interlocutory injunction restraining or sus
pending the enforcement, operation, or execution of, or set
ting aside” a final administrative order. 28 U. S. C. § 2349(b)
(emphasis added).
In the present case, however, petitioner did not seek to
block his removal pending judicial review of his final order of
removal. That review concluded long ago. What petitioner
asked for was an order barring the Executive Branch from
removing him pending judicial review of an entirely differ
ent order, the Board’s order denying his third motion to re
open the proceedings. Petitioner’s current petition for re
view does not contest the correctness of the removal order.

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446 NKEN v. HOLDER
Alito, J., dissenting
Rather, he argues that the Board should have set aside that
order due to alleged changes in conditions in his home coun
try. A motion to reopen an administrative proceeding that
is no longer subject to direct judicial review surely seeks
“ ‘an order altering the legal status quo.’ ” Ante, at 429 (ma
jority opinion) (quoting Turner Broadcasting System, Inc. v.
FCC, 507 U. S. 1301, 1302 (1993) (Rehnquist, C. J., in cham
bers)). Consequently, the relief that petitioner sought here
is best categorized as an injunction.
III
In addition to its highly technical distinction between an
injunction and a stay, the Court advances several other justi
fications for its decision, but none is persuasive.
The Court argues that applying 8 U. S. C. § 1252(f)(2)
would “deprive” us of our “ ‘customary’ stay power.” Ante,
at 433. As noted above, however, restricting judicial discre
tion was “the theme” of IIRIRA, American-Arab Anti-
Discrimination Comm., 525 U. S., at 486. And Congress is
free to regulate or eliminate the relief that federal courts
may award, within constitutional limits that the Court does
not invoke here. Cf. INS v. St. Cyr, 533 U. S. 289, 299–300
(2001).
The Court opines that subsection (b)(3)(B)—not subsection
(f)(2)—is “the natural place to locate an amendment to the
traditional standard governing the grant of stays.” Ante,
at 431. But I would not read too much into Congress’ deci
sion to locate such a provision in one subsection rather than
in another subsection of the same provision. In addition,
there is also nothing “unnatural” about Congress’ use of two
separate subsections of § 1252 to address a common subject.
For example, § 1252(a)(2)(A) lists several matters over which
“no court shall have jurisdiction to review,” while § 1252(g)
lists another subject over which “no court shall have jurisdic
tion to hear any cause or claim.” The fact that those provi
sions are separated by five subsections and framed in slightly

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Alito, J., dissenting
different terms does not justify ignoring them, just as the
space and difference in terminology between § 1252(b)(3)(B)
and § 1252(f)(2) cannot justify the Court’s result.
Noting that the term “stay” is used in § 1252(b)(3)(B)
but not in § 1252(f)(2), the Court infers that Congress did
not intend that the latter provision apply to stays. Ante,
at 430–431. But the use of the term “stay” in subsec
tion (b)(3)(B) is easy to explain. As noted above, prior to
IIRIRA, the Immigration and Nationality Act provided for
an automatic “stay” of deportation upon the filing of a peti
tion for review unless the court of appeals directed other
wise. See 8 U. S. C. § 1105a(a)(3) (1994 ed.) (repealed 1996).
The statute provided:
“The service of the petition for review upon [the Attor
ney General’s agents] shall stay the deportation of the
alien pending determination of the petition by the
court . . . unless the court otherwise directs . . . .” Ibid.
(emphasis added).
In IIRIRA, Congress repealed that provision and, to make
sure that the pre-IIRIRA practice would not be continued,
enacted a new provision that explicitly inverted the prior
rule:
“Service of the petition on the officer or employee
does not stay the removal of an alien pending the court’s
decision on the petition, unless the court orders other
wise.” § 1252(b)(3)(B) (2006 ed.) (emphasis added).
It is thus apparent that § 1252(b)(3)(B) uses the term “stay”
because that is the term that was used in the provision that
it replaced.
Finally, the Court worries that applying § 1252(f)(2) would
create inequitable results by allowing removable aliens to
remain in the United States only if they can prove the merits
of their claims under a “higher standard” than the one they
would otherwise have to satisfy. Ante, at 432–433. But as
the Court acknowledges, ante, at 424, IIRIRA specifically

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448 NKEN v. HOLDER
Alito, J., dissenting
contemplated that most aliens wishing to contest final orders
of removal would be forced to pursue their appeals from
abroad. See § 306(b), 110 Stat. 3009–612 (repealing 8
U. S. C. § 1105a (1994 ed.)). If such an alien seeks to remain
in the United States pending judicial review, IIRIRA pro
vides that the alien must make the heightened showing re
quired under § 1252(f)(2). Congress did not think that this
scheme is inequitable, and we must heed what § 1252(f)(2)
prescribes.
* * *
In my view, the Fourth Circuit was correct to apply
§ 1252(f)(2) and to deny petitioner’s application for an order
barring his removal pending judicial review. Therefore,
I would affirm the judgment of the Court of Appeals.