Does the Legal Standard Matter? Empirical Answers to Justice Kennedy's Questions in Nken v. Holder

Abstract

In response to Fatma Marouf, Michael Kagan & Rebecca Gill, Justice on the Fly: The Danger of Errant Deportations, 75 Ohio St. L.J. 337 (2014).

In Justice on the Fly: The Danger of Errant Deportations, Professors Fatma Marouf, Michael Kagan, and Rebecca Gill take on the ambitious task of answering the empirical questions posed by Justice Kennedy and others in Nken v. Holder with respect to the proper legal standard for judicial stays of removal in the immigration adjudication context. To answer these questions, the authors review, code, and analyze 1,646 cases in all circuits that hear immigration appeals and reveal stark differences in stay-of-removal practices and outcomes among the federal courts of appeals. This Response reflects on three of those findings: 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 among circuits that apply the distinct legal standards. In addition to agreeing with Justice on the Fly that courts should adopt a uniform legal standard, the Response proposes a judicial solution that enhances court-agency dialogue to help courts handle the Federal Government’s misstatement in Nken about the ability of petitioners to return to the United States if they prevail on appeal.

Keywords: immigration, administrative law, stay of removal, Nken v. Holder, deportation

JEL Classification: K37, K10, K41