United States Court of Appeals

Fifth Circuit



## FILED

May 24, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 04-61180

_______________



### S ENAIT 

### K

IDANE 

### T ESFAMICHAEL 

### ; D AWIT 

### T ESSEMA 

### -D AMTE



### ,

Petitioners

,

VERSUS



### A LBERTO 

### R. G ONZALES



### ,

U NITED S TATES A TTORNEY G ENERAL

,



### Respondent.

_________________________

Petition for Review of an Order of

the Board of Immigration Appeals

_________________________

Before D AVIS

, S MITH

, and D ENNIS

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Petitioners Senait Kedane Tes famichael and

Dawit Tessema-Damte, seeking review of t heir

requests for asylum, move this court for a stay

of removal pending our consideration, on the

merits, of their petition for review of the

decision of the Board of Immigration Appeals

(“BIA”). We grant the motion for stay. I.

The petitioners are a married couple seeking asylum in the United States. He, Dawit, is

Ethiopian and she, Senait, was born in Ethiopia but is e t hnically Eritrean. In the late

1990’s, the uneasy situation between Ethiopia

and its former province, Eritrea, escalated t o

war that involved mass deportations by both

governments.

When the deportati ons be gan in 1998,

fearing separation, the petitioners attempted to2

leave Ethiopia together. Senait, the ethnically

Eritrean wife, was not allowed t o leave. She

lacked the required government-issued documents, which she claims were unavailable to

her as an ethnic Eritrean.

W hen they were caught attempting to flee

to Kenya, Dawit was charged with smuggling

Eritreans illegally

and was released pending

trial. Senait was released only after a guard

was bribed. Fearing persecution at trial because he was married to an ethnic Eritrean,

and after experiencin g som e police harassment,

Dawit fled the country . Senait was then

expelled against her will from Ethiopia to Eritrea. Her whole family, save a sister who was

allowed t o emigrate to the United States via

the visa lottery, was also expelled, one person

at a time.

After a convoluted series of events including a two year stay in Eritrea for Senait and a

brief reu n ion in South Africa, the two petitioned for refugee status in t he United States

by claiming past persecution and a well-founded fear of future persecution. The immigration

judge (“IJ”) and the BIA denied the petition.

The government plans to deport Senait to

Erit rea and Dawit to Ethiopia. They seek

review of the BIA’s order and a stay of their

removal pending that review.

II.

Before directly addressing the request for a

stay, w e must determine, importantly, what

sta ndard governs that request. Neither the

statutory text nor our caselaw provides an

obvious guide. Although this court has yet to

weigh in on the subject, this question has split

the courts of appeals. 1 We now adopt the standard in use by t he vast majority of the

circuits.

A.

Before 1996, most aliens who were ordered

deported wer e ent itled to a stayof their removal order pending review of that order. 2

With the enactment of the Illegal Immigration

Reform and Immigrant Respon sibility Act of

1996 (“IIRIRA”), however, one who is seeking review of a deportati on order must ask the

reviewing court for a stay of removal. 3 The

statutory provision that repealed the automatic

imposition of a stay provides, “Service of the

pet it io n on the officer does not stay the removal of an alien pending the court’s decision

on the petition, unless the court orders otherwise.” I d. All the same, § 242(b)(3)(B) does

not specify the standard a court should use in

deciding whether to grant such a stay.

According to the government, that standard

is found in § 242(f)(2):

N otwithstanding any other provision of

law, no court shall enjoin the rem oval of

any alien p ursuant to a final order under

this section unless the alien shows by clear

and co n vincing evidence that the entry or

execution of such order is prohibited as a

matter of law.

INA § 242(f)(2), 8 U.S.C. § 1252(f)(2) (em

1 See Kenyeres v. Ash croft , 538 U.S. 1301,

(continued...) 1 (...continued)

1305 (2003) (Kennedy, J., denying stay and discussing the divers authorities).

2 See 8 U.S.C. § 1105a(a)(3) (repealed in

1996); Arevalo v. Ashcroft

, 344 F.3d 1, 6 (1st Cir.

2003).

3 See Immigration and Nationality Act (“INA”)

§ 242(b)(3)(B), 8 U.S.C. § 1252(b)(3)(B).3

phasis added). Consequently, the government

co n tends, courts may not issue a stay unless

the alien shows the illegalit y of the removal

order by clear and convincing evidence. This

approach, although prof

fered by the government in at least seven circuits, has been rejected by six and embraced in a hol ding by

only one. 4

The circuits that have rejected the government’s position instead have adopted the

standard that prevailed in this circuit before the

enactment of IIRIRA, when stays were

discretionary. In Ignacio v. INS

, 955 F.2d

295 , 299 (5th Cir. 1992), we held that the

decision whether to grant a discretionary stay

of deportation would be based on the familiar

four-factor test applied to preliminary injunctions:

(1) a likelihood of s uccess on the merits;

(2) that irrep arable harm would occur if a

stay is not granted; (3) that the potential

harm to the [a l ien] outweighs the harm to

the [government] if a s t ay is not granted;

and (4) that the granting of the stay would

serve the public interest.

Id. This standard is patently less demanding

on petitioners than is the “clear and convincing

evidence” standard urged by the government. 5 As noted above, t he Eleventh is the only

circuit expressly to hold that § 242(f)( 2 )’s

“clear and convincing evidence” standard has

supplanted the traditional preliminary injunct ion standard when considering requests fo r

temporary st ays. 6 That court, in W eng

, concluded that IIRIRA had amended the standard

for aliens to satisfy before federal courts could

temporarily stay their deportation.

Analyzi ng the statutory framework as a

whole, the Weng court first noted that § 242-

(f)(1) precludes courts fr o m enjoining,

class-wide, the operati on of certain sections of

the INA. Section 242(f)(2) goes on to explain

that no court shall “enjoin” the removal of any

individual alien except on a sh o wing of clear

and convincing evidence that the r emo val is

unlawful. 7 The court noted that “enjoin”

4 See Weng v. U.S. Attorney Gen.

, 287 F.3d

1 335, 1337 (11th Cir. 2002). B ut s ee Bonhomme-Ardouin v. U.S. Attorney Gen.

, 29 1 F.3d

1289, 1290 (11th Cir. 2002) (Barkett, J., concurring) (calling for en banc reconsideration of Weng ).

5 See Weng

, 287 F.3d at 1337; Kenyeres

, 538

U.S. at 1305 (citing Addington v. Texas

, 441 U.S.

418, 425 (1979) (“T he ‘intermediate standard of

clear and convincing evidence’ lies ‘between a pre-

(continued...) 5 (...continued)

ponde r ance of the evidence and proof beyond a

reason able doubt’”)). The government argues, in

summary fashion, that the “cle ar and convincing

evidence” standard found in § 242(f)(2) and adopted by the Eleventh Circuit controls here as well.

Missing from the government’s discussion is a

detailed refutation of the n uanced and reasonably

persuasive arguments relied on by the other circuits

that have rejected the position. The government’s

c ursory discussion of the controlling standard is

mor e than can be said for the petitioners’ brief,

however, which assumes that the old , four-factor

test is still in use and does not even a d dress the

applicability of § 242(f)(2).

6 In dictum , a panel of the Fourth Circuit indicated it would agree with the government’s position. S ee Ngarurih v. Ashcroft

, 371 F.3d 182, 195

n.13 (4th Cir. 2004).

7 As Judge Easterbrook puts it, “Subsection

(f)(1) forbids injunctive class actions and subs e c-

(continued...)4

means “‘[t]o require; command; p o sitively

direct. To require a person by writ of injunction, to perform, or to abstain or desist

from , some act.’” W

eng

, 287 F.3d at 1338

(quoting B LACK ’ S L AW D ICTIONARY 529 (6th

ed. 1990)). In comparison, “stay” is defined as

“[a] stopping; the act of arresting a judicial

proceeding by the order of a co urt. Al so

that which holds, restrains, or supports. A

stay is a suspens ion of the case or some

designated p ro ceedings within it. It is a

kind of injunction with which a court freezes its proceedings at a particular point .

. . .”

Id. (emphasis added by Weng court).

T he Weng court thus concluded that th e

“definitions and common usage” of the words

“enjoin” and “stay” demonstrate that “the plain

meaning of enjoin includes the grant of a stay.”

Id. The court als o found that the interc hangeability of the two words is fu rther

s upported by the frequent conflation of th e

two in other courts’ phraseology. Id. (citing,

inter alia

, NLRB v. Nash-Finch Co.

, 404 U.S.

138, 139-41 (1971)).

Observing that before the enactment of

IIRIRA courts considered requests for discret io nary stays under the same standard as that

employed for requests for injunctive relief, 8 the

Weng court reasoned that Congress’s passage

of IIRIRA was informed by knowledge of this

practi ce. Accordingly, W eng asserts that Congress’s “reference to the power to ‘enjoin’

should be read as encompassing stays of

removal as well.” Id. at 1339.

The belief that Congre ss’s knowledge of

current standards somehow broadens the

definition of “enjoin” is a non sequitur . Nevertheless, the Weng court’s first conclu sion,

that the plain meaning of “enjoin” as used in §

24 2(f)(2) encompasses courts’ issuances of

temporary stays, is persuasive. Other courts

that have wrestled with

t his question, however, have employed equally compelling r eas oning that runs counter to the government’s

position.

Faced with this dilemma, the First, Second,

Third, Sixth, Seventh, and Ninth Circuits have

held that the IIRIRA does not impose th e

“clear and convincing e vidence” standard on

requests for temporary stays. 9 In the mo st

recent iteration of that position, the Seventh

Circuit held that § 242(f)(2) does not supplant

the traditional standard governing the issuance

of stays

. Hor , 400 F.3d at 483. Writing for

the court, Judge Easterbrook observed that, as

a practical matter, the adopti on of the standard

urged by the g o vernment would render stays

of deportation almost impossible to obtain.

Section 242(f)(2), accordin g to the gove rnment, precludes the issuance of a stay

unless the alien demonstrates by clear and

convincing evidence that the deportati on order

“is prohibited by law.” Such a showing, how7 (...continued)

tion (f)(2) sets a high standard for injunctive relief

at retail.” H

or v. Gonzales , 400 F.3d 482, 483

(7th Cir. 2005).

8 See, e.g., Ignacio , 955 F.2d at 299. 9 See Hor

, 400 F.3d at 485; Dougla s v. Ashcroft

, 374 F.3d 230, 234 (3d Cir. 2004); Arevalo

v. Ashcroft

, 344 F.3d 1, 8-9 (1st Cir. 2003); Mohammed v. Reno

, 309 F.3d 95, 99-100 (2d Cir.

2002); Bejjani v. INS , 271 F.3d 670, 687-89 (6th

Cir. 2001); Andreiu v. Ashcroft

, 253 F. 3d 477,

480-83 (9th Cir. 2001) (en banc).5

ev er, likely would be impossible for anyone

but a United States citizen or the holder of “a

visa of unquestioned validity.” I d. Aliens who

contend that the IJ’s and BIA’s denial of relief

was unsupported by substantial evidence,

howeve r, would be unable to make such a

showing of illegalit

y and thus wo u ld have no

hope o f obtaining a stay. Such a conclusion

would run co unter to § 242(b)(3)(B)’s al

lowance for such stays by court order. Id.

This observation certainly does not conclusively demonstrate that the government’s position is wrong. Absent certain exceptional

c ircumstances, e .g.

, an absurd result, we will

not ignore the plain language of a statute. If

the Eleventh Circuit is correct, therefore, that

the plain language of § 242(f)(2) demands the

result the government urges, the virt ual impossibility t hat aliens like petitioners will

receive a stay will not counsel against that

interpretation 

### SS

for such a result is not necessarily absurd.

A far more powerful refutati on of the

Eleventh C ircuit’s textual analysis concerns

Weng ’s conclusion that the word “enjoin” is

unambiguously synonymous w it h “stay.” As

the Seventh Circuit acknowledges in Hor

, 400

F.3d at 484, “[c]ertainly there is a functional

overlap” of the two 

### SS

both can “stop an agency in its tr acks.” Nonetheless, history and

usage counsel that the two words carry different legal meanings, particularly where federal

agencies are involved. Though an injunction is

relief obtained through independent litigatio n

and directed at a partic ular party , not a

tribunal, a st ay is a mechanism intrinsic to

judicial review. Id.

A court of appeals, just as it may stay a district court’s order, may stay an agency’s decision where the agenc y is the forum of initial decisionmaking and the “init ial judicial tribunal

i s a court of appeal s.” I d. This historical

distinction is reflected in rule 18 of the Federal

Rules of Appellate Procedure, which recognizes the peculiar nature of “stays” pending

appellate review of agency decisions. F E D

. R.

A PP

. P. 18. It i s noteworthy that rul e 18 nowhere uses the word “enjoin” or “injunction”

but maintains the l

inguistic distinction by

discussing “st a ys” 

### SS

a peculiar procedural

medium. Id.

Maintaining the formalistic distinction in

vocabulary, Judge Easterbroo k explains, is

necessary to empower Congress to phrase legislation effectively. H

or

, 40 0 F.3d at 484.

Conflating the terms “injunctions” and “stays”

“would impoverish the language and make the

legislative task more difficult.” I d. Strict

adherence, on the other hand, to historical and

p ractical differences in meanings makes the

drafting of

precise legislation more easily

achievable.

By contrast, treating a subsection that mentions i njunctions but not stays as covering

both would force Congress to add provisos

each time it sought to regulate one but not

the ot her. Once a legal community develops a stable nomenclature, it is best to app ly it mechanically so that no one is taken

unawares, and so th a t drafting can be uncluttered by provisos . . . .

. . .[A]pplying established legal distinctions gives Congress a formulary: it can

a chieve one result by using a particular

word o r phrase, a different result with a

different phrase.

Id. at 484-85. Interpreting the word “enjoin”

narrowly so as to exclude “stays” is advisable

“[n]ot because Congress is too unpoetic to use6

synecdoche, but because that literary device is

incompatible with

t he need for precision in

legislative drafting.” Reno v. Am.-Arab AntiDiscrimination Committee

, 525 U.S. 471, 482

(1999) (i n terpreting a different subsection of

§ 242).

There are other reas o ns for not assuming

that subsection (f)(2)’s use of “enjoin” was

meant to include stays. Subsection (b)(3)(B)’s

aboli t ion of the automatic stay specifically

indicates that stays may still be available. INA

§ 242(b)(3)(B), 8 U.S.C. § 1252(b)(3)(B).

This provision, consequently, would have been

the natural

place to locate an amendment to

the operati v e standard governing their

issuance, but no such standard is found.

Rather tha n merely indicating that “such

stays shall be issued when the standard laid out

in subsection

(f)(2) has been met,” the

provision is silent on the matter. Such silence,

however, can be deafening. 10 Hesi tating to

make such an interpretive leap as urged by the

government is consistent with the Su p reme

Co urt’s admonition that § 242 should be

construed narrowly. See Am.-Arab Anti-Discrimination Committee , 525 U.S. at 482.

Not only does subse ction (b)(3)(B) not

referenc e subsection (f)(2)’s supposedly higher

applicabl e st andard, but the two provisions

employ different vocabulary. That is, although

the W eng court is correct that a dictiona r y

definition of “enjoin” can encompass a “stay,”

Congress chos e to use different words in

different sections. When Congress wished to legislate on the issue of stays, as it did when it

r epealed the imposition of the automatic stay

pending appeal in subsection (b)(3)(B), it used

th e wo rd “stay.” As the Second Circuit

observed, “If Congress wanted to apply a

heightened standards to a stay pending appeal,

it would likely have used t he word ‘stay’ in

subsection 242(f)(2) instead of ‘enjoin’ . . . .”

Mohammed , 309 F.3d at 99.

The practical consequence of adopting the

government’s p o sition also counsels in favor

of rejecting t hat position. Imposing on petitioners the “ clear and convincing evidence”

standard of subsection (f)(2) would, as Judge

Selya described it, “necessitate full deliberation

on the merits of the underlying case and, in the

bargain, require the alien to carry a burden of

proof higher than she would have to carry on

the merits.” Arevalo , 344 F.3d at 8.

The instant petition for review, far from requiring clear and convincing evidence of illegality to be successful, will be granted should

this court ultimately decide, on a de novo merits review, that the BIA erred in its legal conclusions. S ee Lopez-Gomez v. Ash croft, 263

F.3d 442, 444 (5th Cir. 2001). Convinced that

Congress could not have intended this “Kafkaesque” resul

t , t he First Circuit held that subsection (f)(2) does not apply to requests f or

temporary stays. I

d. Although we do not necessari l y agree with Judge Selya’s contention

that such a result renders the statute “absurd,”

it is strong evidence that the intent of Con

gress was otherwise. Id.

Similarly, the Seventh Circuit highlighted

another potential anomaly t hat would flow

from the adopti on of the g o vernment’s position. S ee Hor

, 400 F.3d at 485. In contrast to

the potential mootness effects that pre-IIRIRA

deportations yielded, current law allows a

petition for review to be considered even after 10 See Hor

, 400 F.3d at 484; Arevalo

, 344 F.3d

at 8 (citing In re Qualitech Steel Corp. , 327 F.3d

537, 548 (7th Cir. 2003) (counseling that courts

should not “interpolate limitations from one statutory section into a different section when the legislature” did not so direct)).7

an alien’s depart ure. The alien may then return to the United States should he prevail on

appeal. S ee id. In cases such as t he present

one, ho w ever, where petitioners are seeking

asylum based on a well-founded fear of persecution, “[t]he abi lity to come back to the

United States would not be worth much if the

alien has been maime d or murdered in the

interim.” Id.

Reading the relevant statutory provisions as

the government contends yields just this sort

of peril. The results of such a construction are

peculiar, at best, but “[t]here’s nothing absurd

about reading [§ 242(b)(3)(B)] to permit

courts to avert such harms.” Id.

It is axiomatic that c ourts shoul d stri ve to

give operative meaning to ev e ry word in a

statute. See, e.g., Walters v. Metro. Educ.

Enters., Inc.

, 519 U.S. 202 , 209 (1997).

Accordingly, some courts have highlighted the

fact that although § 242(f)(2) employs the

word “enjoin,” t he preceding subsection

discusses courts’ abilit

ies to “enjoin

or restrain.” A ndre iu , 253 F.3d at 480 (quoting

INA § 242(f)(1), 8 U. S.C. § 1252(f)(1)).

Consequently, goes the arg ument, adopting

the government’s position that subsection

(f)(2)’s use of “enjoin” encompasses all related

phrases such as “ st ay” would reduce Congress’s use of “restrain” in the previ o us subsection to mere surplusage.

Although that particular “mere surplusage”

argument is not especially convincing (and it

would be stronger if the prior subsection used

“enjoin or stay ” inst ead of “enjoin or restrain”), a related argument is more powerful.

The Ninth Circuit en banc court noted that if §

242(f)(2) truly

had t he effect that the government advances, all of subsection (b)(3)(B)

would be surplusage. S ee Andreiu

, 253 F.3d at 481. “If [§ 242(f)(2)] clearly means that

courts can only issue stays of deportati on upon

a showing that the order was ‘prohibited as a

matter of law,’ there would be no need to state

in [§ 242(b)(3)(B)] that stays are not au t omatic.” Id.

With due respect to t he Eleventh Circuit,

the better reading of § 242 of the INA is that

subsection 242(f)(2)’s “clear and convincing

evidence” standard does not apply to requests

for temporary stays of removal pending appellate review. Instead, the traditional test,

adopted by this court in Ignacio

, 955 F.2d at

299

, r emains in force and governs the instant

dispute. With the rule of decision so clarified,

we now turn to th e merits of petitioners’

request for a stay.

III.

As we have said, in the absence of legislative guidanc e to the contrary , requests for

tem po rary stays of removal are considered in

light of the degree to which four factors can be

shown:

(1) a likelihood of success on the meri ts;

(2) that irreparable harm would occur if a

stay is not granted; (3) that the potential

harm to the [alien] outw e ighs the harm to

t he [government] if a stay is not granted;

and (4) that the granting of the stay would

serve the public interest.

Id. The pet itioners’ motion papers make a

strong argument in favor of granting the stay.

These showings are balanced only by the

government’s cursory refutations. Stays, like

other forms of preliminary re lief, are considered without reaching a full adjudicat i on on8

the merits. 11 They are, in fact, usually issued

or denied without even full briefing on the

merits. 12 At t his incipient stage, petitioners

have made out a strong eno ugh case to warrant reli ef in t he form of a temporary stay of

removal pending our review on the merit s of

their petition.

Although four factors are relevant to determining entitlement to a st ay, the first (likelihood of success on the merits) is arguably the

most important. See Shrink Mo. Gov’t PAC v.

Ad ams , 151 F.3d 763, 764 (8th Cir. 1998).

Because the instant petition e rs can show a

significant likelihood of success on the merits,

therefore, their case is a particularly appropriate one in which to issue a stay.

The IJ and the BIA ruled tha t peti ti oners

did not present documentary proof of Ethiopian law that would have su pported thei r

assertion that Ethiopian law recognizes t h eir

marriage despite the fact that it has never been

formalized. Although they submitted copies of

p rovisions of the Ethiopian constitution t o

support their position, the IJ held that such

evidence was insufficient to demonstrate

marriage because the petit io ners did “not

show[] that they are experts in Ethiopian law.”

The BIA parroted this line of reasoning when

it concluded that Dawit would not likely face

future persecution because his marriage to

Senait was not registered w it h the Ethiopian

government. There does not se em to be any support in

t he law, however, for the conclusion that the

petitioners’ testimony, coupled with copies of

the operative sections of the Ethiopian constit ution, is not sufficient to demonstrate the

veracity of their marriage. This is especially so

given the IJ’s explicit recognition of the

credibility of the petitioners’ testimony. 1 3

There appears to be no tenet of law (to which

any party directs the c ourt’s attenti on) that

requires any sort of expertise to testify to this

fact. Consequently, the BIA’s conclusion that

Dawit was not subject to persecution by Senait’s deportati on because, in part, their marriage was not registered, was likely error.

An even more important point on which the

IJ and BIA seem to have erred involves

S enait’s alleged resettlement in Eritrea. The

board found that she was not entitled to asy

lum based on any persecution in Ethiopia, for

she had firmly resettled in Eritrea. To the

contrary, the evidence ap pears to be that she

had no intention of ever remaining in Eritrea

and only stayed there so long as was necessary

to arrange onward travel. In point of fact, she

entered Eritrea only because she was forcibly

deported there (after being arrested for trying

to enter Kenya with Dawit), and was thereafter

denied the abilit

y to ex it by the Eritrean government even though she had o bt ained a visa

to enter South Africa (where she would eventually reunite with Dawit).

The case the IJ and BIA cite in support of

the “firmly resettled” conclusion does little to

advance this finding. See Mussie v. INS

, 172

F.3d 329 , 331 (4th Cir. 1999). Although the 11 See 11A C HARLES A LAN W RIGHT ET AL

. , F EDERAL P RACTICE AND P ROCEDURE § 2947, at

122 (2d ed. 2003).

12 That is all the more reason that the supposed

requirement that a petitioner show e n titlement to

relief by “clear and convincing evidence” would be

anomalous. 13 See IJ opinion at 21 (calling thei r testimony

“specific, forth

r ight, internally consistent and essentially consistent with the testimony of the other

. . . .”).9

BIA’s regulations state that where an applicant

for asylum entered a country as a necessary

consequence of her persecution and remained

only as long as was necessary to arrange

onward travel, the case to which the BIA cites

involved a situation in which there was no

colorable argument that these requi rements

had been met. S ee 8 C.F.R. § 208.15; Mussie

, 172 F.3d at 331. In contrast to the present

case, where it is at least a close question

whether Senait remained only so l ong as was

necessary to arrange onward travel (although

not that cl o se given the evidence that the

Eritrean government denied her ability to exit

and reunite with Dawit), M ussie involved an

Ethiopian asylum see ker who had spent over

six years in Germany and did not attempt to

leave until she was harassed by neo-Nazis.

Mussie , 172 F.3d at 331.

The BIA further concluded that Dawit had

not suffered past persecution, because his fear

of imprisonment in Ethiopia for attempting to

smuggle Senait out of the country was the

result of legitimate application of Et h iopian

travel laws and not the result of one of the five

bases of persecution from which refugees are

protected: race, political beliefs, religion,

nationality, and mem

bership in a particular

social group. 8 U.S.C. § 1101(a)(42)(A);

Zhao v. Gonzales

, 404 F.3d 295, 304 (5th Cir.

2005). Though it may be a close question,

there is a strong argument that prosecution for

the crime of smuggling an Eritrean, especially

where the Erit rean in question is one’s wife

from whom one would otherwise be forcibly

separated by a war zone, is persecution based

on race, political belie f, and membership in a

social group.

Courts have consistentlyheld that legitimate applicat io n of a country’s travel laws

does not constitute persecution. Nevertheless, those cases have never involved a peculiar

application of tr avel laws such that the violative behavior was caused by the patent persecution of the ethnicity of the asylum-seekers

wife. It is not a compelled conclusion that

under the statute Dawit faces “persecution,” as

defined by the statute, for his vio l ation of the

travel laws. It is obvious, however, that t he

cases on which the BIA concluded that it was

not persecution are distingu ishable on their

facts and do not stand for the proposition that

asylum-seekers positioned as Dawit is are unable to claim persecution.

The re is also a serious question as to the

propriety of the BIA’s conclus io n that Dawit

l i kely could emigrate to Eritrea to be with

Senait (who has already been forcibly deported

from Ethiopia, so her emigration there is

obviously not possible). As the petitioners’

expert put it, such a suggestion “amounts to a

kind of insanity.” At this early stage in our

proceedings, it is suffic ient to say that the

BIA’s conclusion to the contrary is questiona ble and demonstrates that there exist s a

sign i ficant likelihood that Senait and Dawit

will prevail on the merits of their claims.

Again, this is not an exhaustive analysis of

the merit s of the petitioners’ claims; such an

analysis would not be appropriate at this init ial

stage without the benefit of f ull briefing and

further review o f t he record and pertinent

authorities. The petitioners, however, have

demonstrated a significant likelihood of success on the merits. That likelihood, coupled

with the extraordinary likelihood of irreparable

harm the p et it ioners face if deported (in the

form of forced separationand likely persecution), and the public interest in having the

immigrati o n laws applied correctly and evenhandedly, justifies the issuance of a stay of the

order of removal

pending resolution of the10

merits of the petition for review.

The motion for stay of removal pending review is GRANTED. We emphasize, however,

tha t our comments on the merits are preliminary. Another panel of this court will review

anew the facts and the law for apurpose entirely different from the reason for which we

have examined them. Nothing in this opinion

should be interpreted as an indication that petitioners can, will, or should prevail in ultimately forestalling removal and gaining asylum.