Background
The petitioner, Fausto Jerardo Amilcar Herrera-Juarez, sought a stay of removal and appealed a decision. The respondent moved to dismiss the appeal. The petitioner claimed that removal to a third country violated the Fifth Amendment Due Process Clause, the Eighth Amendment prohibition against cruel and unusual punishment, and Section twelve hundred thirty-one subsection B paragraph two of the Immigration and Nationality Act.
The court’s reasoning
The majority order granted the motion for a stay of removal and deferred ruling on the motion to dismiss pending assignment to a panel. In dissent, Circuit Judge Quattlebaum applied the four-factor test from Nken versus Holder. The dissent argued that the petitioner must establish a strong likelihood of success on the merits, irreparable injury, and that the public interest favors a stay. The dissent noted that the petitioner’s success depends on prevailing on three independent issues: jurisdiction, the effect of a pending class action, and the merits of the due process claim. The dissent applied a multiplicative probability model, stating that the likelihood of overall success is the product of the likelihood of success on each independent issue.
The dissent
Fausto Herrera-Juarez may obtain a stay pending appeal only if he establishes a strong likelihood of success overall. He hasn’t, so I would deny the stay.
Circuit Judge Quattlebaum
What it means going forward
The stay of removal is temporarily in effect, halting the petitioner’s deportation while the court reviews the motion to dismiss. The case remains pending for full panel consideration.