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

_______________

SENAIT KIDANE TESFAMICHAEL; DAWIT TESSEMA-DAMTE,

Petitioners,

VERSUS

ALBERTO R. GONZALES,

UNITED STATES ATTORNEY GENERAL,

Respondent.

_________________________

Petition for Review of an Order of

the Board of Immigration Appeals

_________________________

Before DAVIS, SMITH, and DENNIS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

PetitionersSenait KedaneTesfamichael and

Dawit Tessema-Damte,seeking reviewoftheir

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 ethnically Eritrean. In the late

1990’s, the uneasy situation between Ethiopia

and its former province, Eritrea, escalated to

war that involved mass deportations by both

governments. 

When the deportations began in 1998,

fearing separation, the petitioners attempted to
2

leave Ethiopia together. Senait, the ethnically

Eritrean wife, was not allowed to leave. She

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

her as an ethnic Eritrean. 

When 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 experiencing some 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 to 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 reunion in South Africa, the two petitioned for refugee status in the United States

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

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

The government plans to deport Senait to

Eritrea 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, we must determine, importantly, what

standard 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 the vast majority of the

circuits.

A.

Before 1996,most aliens who were ordered

deported were entitled to a stay of their removal order pending review of that order.2

With the enactment of the Illegal Immigration

Reform and Immigrant Responsibility Act of

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

reviewing court for a stay of removal.3 The

statutoryprovisionthat repealed the automatic

imposition of a stay provides, “Service of the

petition on the officer does not stay the removal of an alien pending the court’s decision

on the petition, unless the court orders otherwise.” Id. 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, thatstandard

is found in § 242(f)(2):

Notwithstanding any other provision of

law, no court shall enjoin the removal of

any alien pursuant to a final order under

this section unless the alien shows by clear

and convincing 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) (em1

See Kenyeres v. Ashcroft, 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

contends, courts may not issue a stay unless

the alien shows the illegality of the removal

order by clear and convincing evidence. This

approach, although proffered by the government in at least seven circuits, has been rejected by six and embraced in a holding 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 success on the merits;

(2) that irreparable harm would occur if a

stay is not granted; (3) that the potential

harm to the [alien] outweighs the harm to

the [government] if a stay is not granted;

and (4) that the granting of the stay would

serve the public interest. 

Id. This standard is patently less demanding

on petitionersthan isthe “clear and convincing

evidence” standard urged by the government.5

As noted above, the Eleventh is the only

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

“clear and convincing evidence” standard has

supplanted the traditional preliminary injunction standard when considering requests for

temporary stays.6 That court, in Weng, concluded that IIRIRA had amended the standard

for aliensto satisfy before federal courts could

temporarily stay their deportation. 

Analyzing the statutory framework as a

whole, the Weng court first noted that § 242-

(f)(1) precludes courts from enjoining,

class-wide, the operation 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 showing of clear

and convincing evidence that the removal is

unlawful.7 The court noted that “enjoin”

4

See Weng v. U.S. Attorney Gen., 287 F.3d

1335, 1337 (11th Cir. 2002). But see Bonhomme-Ardouin v. U.S. Attorney Gen., 291 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) (“The ‘intermediate standard of

clear and convincing evidence’ lies ‘between a pre-

(continued...)

5

(...continued)

ponderance of the evidence and proof beyond a

reasonable doubt’”)). The government argues, in

summary fashion, that the “clear 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 nuanced and reasonably

persuasive argumentsrelied on by the other circuits

that have rejected the position. The government’s

cursory discussion of the controlling standard is

more 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 address the

applicability of § 242(f)(2).

6

In dictum, a panel of the Fourth Circuit indicated it would agree with the government’s position. See 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 subsec-

(continued...)
4

means “‘[t]o require; command; positively

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

from, some act.’” Weng, 287 F.3d at 1338

(quoting BLACK’SLAW DICTIONARY 529 (6th

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

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

proceeding by the order of a court. Also

that which holds, restrains, or supports. A

stay is a suspension of the case or some

designated proceedings 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). 

The Weng court thus concluded that the

“definitions and common usage” of the words

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

meaning of enjoin includesthe grant of a stay.”

Id. The court also found that the interchangeability of the two words is further

supported by the frequent conflation of the

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 discretionary stays under the same standard as that

employed for requestsforinjunctive relief,8the

Weng court reasoned that Congress’s passage

of IIRIRA was informed by knowledge of this

practice. Accordingly, Weng 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 Congress’s knowledge of

current standards somehow broadens the

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

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

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

temporary stays, is persuasive. Other courts

that have wrestled with this question, however, have employed equally compelling reasoning 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 the

“clear and convincing evidence” standard on

requests for temporary stays.9 In the most

recent iteration of that position, the Seventh

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

the traditionalstandard governing the issuance

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

the court,Judge Easterbrook observed that, as

a practicalmatter, the adoption ofthe standard

urged by the government would render stays

of deportation almost impossible to obtain. 

Section 242(f)(2), according to the government, precludes the issuance of a stay

unless the alien demonstrates by clear and

convincing evidence that the deportation order

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

(...continued)

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

at retail.” Hor 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; Douglas 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

ever, likely would be impossible for anyone

but a United States citizen or the holder of “a

visa of unquestioned validity.” Id. Aliens who

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

was unsupported by substantial evidence,

however, would be unable to make such a

showing of illegality and thus would have no

hope of obtaining a stay. Such a conclusion

would run counter to § 242(b)(3)(B)’s allowance for such stays by court order. Id. 

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

circumstances, 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 virtual impossibility that aliens like petitioners will

receive a stay will not counsel against that

interpretationSSfor such a result is not necessarily absurd.

A far more powerful refutation of the

Eleventh Circuit’s textual analysis concerns

Weng’s conclusion that the word “enjoin” is

unambiguously synonymous with “stay.” As

the Seventh Circuit acknowledgesin Hor, 400

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

overlap” of the twoSSboth can “stop an agency in its tracks.” 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 litigation

and directed at a particular party, not a

tribunal, a stay 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 agency is the forum of initial

decisionmaking and the “initialjudicialtribunal

is a court of appeals.” Id. This historical

distinction isreflected in rule 18 of the Federal

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

appellate review of agency decisions. FED. R.

APP. P. 18. It is noteworthy that rule 18 nowhere uses the word “enjoin” or “injunction”

but maintains the linguistic distinction by

discussing “stays”SSa peculiar procedural

medium. Id. 

Maintaining the formalistic distinction in

vocabulary, Judge Easterbrook explains, is

necessary to empower Congressto phrase legislation effectively. Hor, 400 F.3d at 484.

Conflating the terms “injunctions” and “stays”

“would impoverish the language and make the

legislative task more difficult.” Id. Strict

adherence, on the other hand, to historical and

practical differences in meanings makes the

drafting of precise legislation more easily

achievable.

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

both would force Congressto add provisos

each time it sought to regulate one but not

the other. Once a legal community develops a stable nomenclature, it is best to apply it mechanically so that no one is taken

unawares, and so that drafting can be uncluttered by provisos . . . . 

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

achieve one result by using a particular

word or 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 Congressistoo unpoetic to use
6

synecdoche, but because that literary device is

incompatible with the need for precision in

legislative drafting.” Reno v. Am.-Arab AntiDiscriminationCommittee, 525 U.S. 471, 482

(1999) (interpreting a different subsection of

§ 242).

There are other reasons for not assuming

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

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

abolition of the automatic stay specifically

indicatesthat 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 operative standard governing their

issuance, but no such standard is found. 

Rather than merely indicating that “such

staysshall 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 Hesitating to

make such an interpretive leap as urged by the

government is consistent with the Supreme

Court’s admonition that § 242 should be

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

Not only does subsection (b)(3)(B) not

reference subsection (f)(2)’s supposedly higher

applicable standard, but the two provisions

employdifferent vocabulary. That is, although

the Weng court is correct that a dictionary

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

Congress chose to use different words in

different sections. When Congress wished to

legislate on the issue of stays, as it did when it

repealed the imposition of the automatic stay

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

the word “stay.” As the Second Circuit

observed, “If Congress wanted to apply a

heightened standardsto a stay pending appeal,

it would likely have used the word ‘stay’ in

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

Mohammed, 309 F.3d at 99.

The practical consequence of adopting the

government’s position also counsels in favor

of rejecting that 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. See Lopez-Gomez v. Ashcroft, 263

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

Congress could not have intended this “Kafkaesque” result, the First Circuit held that subsection (f)(2) does not apply to requests for

temporary stays. Id. Although we do not necessarily agree with Judge Selya’s contention

that such a result renders the statute “absurd,”

it is strong evidence that the intent of Congress was otherwise. Id. 

Similarly, the Seventh Circuit highlighted

another potential anomaly that would flow

from the adoption of the government’s position. See Hor, 400 F.3d at 485. In contrast to

the potentialmootness effectsthat 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 departure. The alien may then return to the United States should he prevail on

appeal. See id. In cases such as the present

one, however, where petitioners are seeking

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

United States would not be worth much if the

alien has been maimed or murdered in the

interim.” Id. 

Reading the relevantstatutoryprovisions 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 courts should strive to

give operative meaning to every 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,” the preceding subsection

discusses courts’ abilities to “enjoin or restrain.” Andreiu, 253 F.3d at 480 (quoting

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

Consequently, goes the argument, adopting

the government’s position that subsection

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

phrases such as “stay” would reduce Congress’s use of “restrain” in the previous 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” instead of “enjoin or restrain”), a related argument is more powerful.

The Ninth Circuit en banc court noted that if §

242(f)(2) truly had the effect that the government advances, all of subsection (b)(3)(B)

would be surplusage. See Andreiu, 253 F.3d

at 481. “If [§ 242(f)(2)] clearly means that

courts can onlyissue stays of deportation 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 automatic.” Id.

With due respect to the 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, remains in force and governs the instant

dispute. With the rule of decision so clarified,

we now turn to the merits of petitioners’

request for a stay.

III.

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

temporary stays of removal are considered in

light of the degree to which four factors can be

shown:

(1) a likelihood of success on the merits;

(2) that irreparable harm would occur if a

stay is not granted; (3) that the potential

harm to the [alien] outweighs the harm to

the [government] if a stay is not granted;

and (4) that the granting of the stay would

serve the public interest. 

Id. The petitioners’ 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 relief, are considered without reaching a full adjudication on
8

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

or denied without even full briefing on the

merits.12 At this incipient stage, petitioners

have made out a strong enough case to warrant relief in the form of a temporary stay of

removal pending our review on the merits of

their petition.

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

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

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

Because the instant petitioners 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 that petitioners

did not present documentary proof of Ethiopian law that would have supported their

assertion that Ethiopian law recognizes their

marriage despite the fact that it has never been

formalized. Although they submitted copies of

provisions of the Ethiopian constitution to

support their position, the IJ held that such

evidence was insufficient to demonstrate

marriage because the petitioners did “not

show[] that they are expertsin 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 with the Ethiopian

government. 

There does not seem to be any support in

the law, however, for the conclusion that the

petitioners’ testimony, coupled with copies of

the operative sections of the Ethiopian constitution, is not sufficient to demonstrate the

veracity oftheir marriage. This is especially so

given the IJ’s explicit recognition of the

credibility of the petitioners’ testimony.13

There appears to be no tenet of law (to which

any party directs the court’s attention) 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 deportation 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

Senait’s alleged resettlement in Eritrea. The

board found that she was not entitled to asylum based on any persecution in Ethiopia, for

she had firmly resettled in Eritrea. To the

contrary, the evidence appears 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 withDawit), and wasthereafter

denied the ability to exit by the Eritrean government even though she had obtained 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 CHARLES ALAN WRIGHT ET AL.,

FEDERAL PRACTICE AND PROCEDURE § 2947, at

122 (2d ed. 2003).

12 That is all the more reason that the supposed

requirement that a petitioner show entitlement to

relief by “clear and convincing evidence” would be

anomalous.

13 See IJ opinion at 21 (calling their testimony

“specific, forthright, internally consistent and essentially consistent with the testimony of the other

. . . .”).
9

BIA’sregulationsstate that where anapplicant

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 requirements

had been met. See 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 long as was

necessary to arrange onward travel (although

not that close given the evidence that the

Eritrean government denied her ability to exit

and reunite with Dawit), Mussie involved an

Ethiopian asylum seeker 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 Ethiopian

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 membership 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 Eritrean in question is one’s wife

from whom one would otherwise be forcibly

separated by a war zone, is persecution based

on race, political belief, and membership in a

social group. 

Courts have consistently held that legitimate application of a country’s travel laws

does not constitute persecution. Nevertheless,

those cases have never involved a peculiar

application of travel 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

underthe statute Dawit faces “persecution,” as

defined by the statute, for his violation of the

travel laws. It is obvious, however, that the

cases on which the BIA concluded that it was

not persecution are distinguishable on their

facts and do not stand for the proposition that

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

There is also a serious question as to the

propriety of the BIA’s conclusion that Dawit

likely could emigrate to Eritrea to be with

Senait(who has alreadybeen forciblydeported

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 sufficient to say that the

BIA’s conclusion to the contrary is questionable and demonstrates that there exists a

significant likelihood that Senait and Dawit

will prevail on the merits of their claims.

Again, this is not an exhaustive analysis of

the merits of the petitioners’ claims; such an

analysis would not be appropriate at thisinitial

stage without the benefit of full briefing and

further review of the record and pertinent

authorities. The petitioners, however, have

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

with the extraordinarylikelihood ofirreparable

harm the petitioners face if deported (in the

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

immigration laws applied correctly and evenhandedly, justifies the issuance of a stay of the

order of removal pending resolution of the
10

merits of the petition for review.

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

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

anew the facts and the law for a purpose 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.