Is a stay the same as an injunction? Do we really care? The U.S. Supreme Court answered these burning questions Wednesday when it decided Nken v. Holder and poetically explained: “The sun may be a star, but ‘starry sky’ does not refer to a bright summer day.”
The Court was trying to explain how a stay walks like a duck, talks like duck, but is not a duck — or in this case, not an injunction. An injunction directs the conduct of the defendant, prohibiting or commanding action. A stay temporarily halts a judicial proceeding. As the Court admitted, a stay looks curiously like a preliminary injunction. These two common (yet allegedly “extraordinary”) remedies share a functional overlap. Both preserve the status quo, temporarily halt action, and use the same four-part test for qualification. As Justice Kennedy noted in his concurrence, in most cases, the difference between the two will have “little practical effect.”
Not so in the case of Jean Marc Nken. In Nken, the technical definitions mattered to interpret an act of Congress, the 1996 immigration reform act, that limited injunctive relief. The plaintiff, Nken, a native of Cameroon sought asylum in the U.S. claiming that his participation in student protests in the 1990s subjected him to persecution in his home country, demonstrated by his 30-day imprisonment in 2000. The immigration courts denied his claim and ordered his removal from the U.S. Nken then sought a stay of the removal order while he appealed. The lower court of appeals applied the immigration statute’s standard which said that no court can enjoin the removal of an alien unless clear and convincing evidence show that the removal is prohibited by law.
A solid majority of the Supreme Court led by Chief Justice Roberts rejected this application of the immigration statute. Instead, they held that a stay is different from an injunction because the stay acts upon the proceeding, while the injunction acts upon the conduct of the defendant or government. A stay is procedural. An injunction is substantive. Thus, the limitations on injunctive relief contained in the immigration statute did not apply to Nken’s request for a stay. Instead, the traditional test allowing the equities of the circumstances to be factored in would apply.
The sticking point was the Court was unable to explain what Congress might have meant by its limitation provision if not applied to stays. That didn’t bother the Court too much, though the dissent by Justices Alito and Thomas were concerned about this dissing of congressional intent.
