Dorelien v. U.S. Attorney General, 317 F.3d 1314 (11th Cir. 2003)

Jeffrey Adam Devore

Case Conclusion Date:January 13, 2003

Practice Area:Immigration

Outcome:Stay of Removal Denied - Decision Overruled by U.S. Supreme Court

Description:In this case we moved the 11th Circuit Court of Appeals for a stay of removal while our client's appeal was pending before the 11th Circuit Court of Appeals. We argued that in order to obtain a stay of removal for our client we had to show the "traditional stay factors" of 1) the likelihood of success on the merits; 2) the injury to the applicant if the stay is denied; 3) the injury to the government if the stay is granted; and 4) the public interest. The Court disagreed and denied the stay stating that we were required to show by "clear and convincing evidence" that our client should be granted a stay of removal and that the tradtional stay factors were no longer applicable as the requirements for a stay had been modified by Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This was a virtually impossible standard to meet and essentially required an alien to prove his whole case before having the opportunity to review the adminstrative record in full and prepare his brief on appeal. The holding of this case was eventually overruled by the United States Supreme Court in Niken v. Holder, 551 U.S. ___, 129 S.Ct. 1729 (2009) in which the Supreme Court agreed with us by holding that the traditional stay factors applied and that it was "loath to conclude that Congress would, without clearly expressing such a purpose, deprive the Court of Appeals of its customary powers to stay orders under review."