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4/22/2009
In a landmark ruling, the U.S. Supreme Court today clarified an important aspect of immigration law that affects thousands of individuals seeking asylum in the U.S. after fleeing persecution abroad. The 7-2 ruling paves the way for Jenner & Block pro bono client Jean Marc Nken to continue the appeal of his deportation to Cameroon, where Mr. Nken fled after being detained, interrogated, and beaten for his advocacy for free elections. The case was argued on January 21, 2009 by Jenner & Block Associate Lindsay C. Harrison, who is representing Mr. Nken on a pro bono basis. The case was the first argument for Ms. Harrison in the U.S. Supreme Court or in any court.
The Court ruled that asylum applicants in the U.S. who are appealing an order of removal by the Board of Immigration Appeals in federal court should not be deported while their appeal is pending if they have a likelihood of success in their appeal and would suffer harm if deported. Traditional stay factors should govern a court of appeals’ authority to stay an alien’s removal pending judicial review, the Justices said. The Court rejected the Government's position that asylum-seekers should almost always be deported pending appeal, stating: “We agree with petitioner that an alien need not satisfy the demanding standard of s1252(f)(2) when asking a court of appeals to stay removal pending judicial review.” Nken v. Holder (08-1813)
“Today’s decision can literally mean the difference between life and death for my client and other asylum seekers,” said Ms. Harrison after today’s ruling. “This decision will give my client a chance to appeal his deportation before the Fourth Circuit, and brings him one step closer to securing permanent safety from persecution in Cameroon, and to keeping him in the U.S. with his wife and baby, both of whom are U.S. citizens.”
Michael B. DeSanctis, Managing Partner of Jenner & Block's Washington, DC office, said, “This is a tremendous victory for immigration rights, for Mr. Nken, and for Lindsay. Lindsay had the courage to take this issue to the Court and, in doing so, has not only prevailed for her client, but has advanced the law for the entire nation. I know I speak for all of my colleagues in saying that I am just so proud of what Lindsay has accomplished here in continuing Jenner & Block's proud tradition at the Supreme Court.”
Mr. Nken, a pro-democracy advocate in Cameroon, applied for asylum in the United States in 2001. He fled Cameroon because the government detained, interrogated, and beat him for his advocacy for free elections. After several years of court and administrative proceedings, his motion to reopen his asylum case was denied by the Board of Immigration Appeals earlier this year. He sought review in the U.S. Court of Appeals for the Fourth Circuit. The court of appeals, however, declined to issue a stay of his removal while the appeal there was pending, meaning that he could be deported back to Cameroon notwithstanding the grave danger he faces there.
Mr. Nken, represented by Jenner & Block attorneys, then filed an emergency motion in the U.S. Supreme Court, seeking a stay and contending that the standard that the court of appeals had used in denying the stay was incorrect and unjustified by federal immigration law. The Supreme Court granted the application for the stay and scheduled argument on Mr. Nken’s case.
The Jenner & Block attorneys argued that in evaluating Mr. Nken’s application for a stay, the court of appeals should have used the traditional test for granting a stay -- a test that eight other federal appeals courts have applied. Instead, the Firm argued, the court of appeals misapplied a 1996 immigration law to permit a stay only if the immigrant can show “by clear and convincing evidence” that his removal is prohibited by law.
At the oral argument, in response to a question by Chief Justice John Roberts Jr. about whether an asylum-seeker can pursue his case if a stay is not granted and he has been removed from the United States, Ms. Harrison responded that the case “may abate because they are killed, they are put in jail, they are not in a position to come back to this country. And that is why consideration of the equities in this context is so critical.”
The Jenner & Block team in Mr. Nken’s case also includes Partners Ian Heath Gershengorn and Jared O. Freedman, and Associates Julia K. Martinez and Adam G. Unikowsky.
Ms. Harrison said she has long had a particular interest in immigration and asylum cases. Her father came to the United States as an immigrant from the Soviet Union in 1975.
Ms. Harrison is a 2003 graduate of the Harvard Law School. As a summer associate, she was a member of the Firm’s litigation team that obtained reversal of the lower court’s decision in the landmark Supreme Court case of Lawrence v. Texas, in which the Supreme Court held that the Constitution does not permit a state to criminalize private consensual sexual behavior.
Please click here to view the Court's decision.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
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