During the last ten years, the United States has tightened deportation standards. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which together significantly altered existing immigration law. These laws broadened the scope of the federal government’s power to deport aliens and reduced the rights of aliens who sought to remain in the country.
United States federal courts differ in their application of certain provisions of these new immigration and deportation laws. One provision of the IIRIRA that the circuit courts interpret differently is 8 U.S.C. § 1252(b)(3)(B), which governs the ability of aliens to remain in the United States pending their appeals of final deportation orders. Courts in the Eleventh Circuit have held that courts may grant stays of removal to aliens awaiting appeals from final deportation orders only if an alien is able to prove, by clear and convincing evidence, that the Board of Immigration Appeals (BIA) misapplied the law under which they are to be deported. In contrast, courts in the First Circuit have held that immigrants awaiting appeals from final deportation orders need only satisfy the preliminary injunction standard to have their removal stayed temporarily. The preliminary injunction standard requires a lesser showing of proof than the clear and convincing standard, and allows a judge to consider how deportation would affect the alien. Despite these inconsistent applications, the Supreme Court has yet to decide on the correct interpretation of the statute. . . .