OPINION OF THE COURT
NKEN V. HOLDER
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
JEAN MARC NKEN, PETITIONER v. ERIC H.
HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to america court of
appeals for the fourth circuit
[April 22, 2009]
Chief Justice Roberts added the opinion of the Court.
It takes time to decide a case on enchantment. Sometimes a touch; on occasion lots. “No courtroom could make time stand nevertheless” at the same time as it considers an enchantment, Scripps-Howard Radio, Inc. v. FCC, 316 U. S. four, nine (1942), and if a court takes the time it desires, the court docket’s selection might also in a few cases come too late for the birthday celebration seeking evaluation. That is why it “has usually been held, … that as a part of its conventional gadget for the management of justice, a federal court can stay the enforcement of a judgment pending the outcome of an attraction.” Id., at 9–10 (footnote not noted). A stay does no longer make time stand nonetheless, however does hold a ruling in abeyance to allow an appellate court the time vital to review it.
This case includes a statutory provision that sharply restricts the situations beneath which a court docket may additionally difficulty an injunction blockading the removal of an alien from this country. The Court of Appeals concluded, and the Government contends, that this provision applies to the granting of a live by means of a courtroom of appeals at the same time as it considers the legality of a elimination order. Petitioner disagrees, and maintains that the authority of a court of appeals to live an order of removal underneath the traditional criteria governing stays remains fully intact, and isn't affected by the statutory provision governing injunctions. We accept as true with petitioner, and vacate and remand for software of the conventional criteria.
Jean Marc Nken, a citizen of Cameroon, entered america on a transit visa in April 2001. In December 2001, he carried out for asylum under 8 U. S. C. §1158, withholding of removal below §1231(b)(three), and deferral of elimination beneath the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 3, S. Treaty Doc. No. a hundred–20, p. 20, 1465 U. N. T. S. 85, see eight CFR §208.17 (2008). In his utility, Nken claimed he have been persecuted in the past for participation in protests towards the Cameroonian Government, and might be subject to in addition persecution if he returns to Cameroon.
An Immigration Judge denied Nken comfort after concluding that he become not credible. The Board of Immigration Appeals (BIA) affirmed, and also declined to remand for consideration of Nken’s utility for adjustment of status primarily based on his marriage to an American citizen. After the BIA denied a motion to reopen, Nken filed a petition for review of the BIA’s elimination order within the Court of Appeals for the Fourth Circuit. His petition turned into denied. Nken then filed a second movement to reopen, which changed into additionally denied, observed with the aid of a 2d petition for review, which turned into denied as properly.
Nken filed a third movement to reopen, this time alleging that modified occasions in Cameroon made his persecution more likely. The BIA denied the motion, locating that Nken had no longer presented enough facts or evidence of modified united states of america conditions. Nken once more sought evaluate within the Court of Appeals, and additionally moved to live his deportation pending resolution of his enchantment. In his movement, Nken identified that Fourth Circuit precedent required an alien searching for to stay a removal order to expose through “clear and convincing evidence” that the order was “prohibited as a count of law,” 8 U. S. C. §1252(f)(2). See Teshome-Gebreegziabher v. Mukasey, 528 F. 3d 330 (CA4 2008). Nken argued, however, that this general did not govern. The Court of Appeals denied Nken’s motion without comment. App. seventy four.
Nken then implemented to this Court for a stay of removal pending adjudication of his petition for review, and asked in the opportunity that we provide certiorari to solve a cut up among the Courts of Appeals on what wellknown governs a request for the sort of live. Compare Teshome-Gebreegziabher, supra, at 335, and Weng v. U. S. Lawyer General, 287 F. 3d 1335 (CA11 2002), with Arevalo v. Ashcroft, 344 F. 3d 1 (CA1 2003), Mohammed v. Reno, 309 F. 3d ninety five (CA2 2002), Douglas v. Ashcroft, 374 F. 3d 230 (CA3 2004), Tesfamichael v. Gonzales, 411 F. 3d 169 (CA5 2005), Bejjani v. INS, 271 F. 3d 670 (CA6 2001), Hor v. Gonzales, 400 F. 3d 482 (CA7 2005), and Andreiu v. Ashcroft, 253 F. 3d 477 (CA9 2001) (en banc). We granted certiorari, and stayed petitioner’s removal pending similarly order of this Court. Nken v. Mukasey, 555 U. S. ___ (2008).
The question we agreed to resolve stems from modifications in judicial overview of immigration techniques delivered on via the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), one hundred ten Stat. 3009–546, which extensively amended the Immigration and Nationality Act (INA), 8 U. S. C. §1101 et seq. When Congress passed IIRIRA, it “repealed the vintage judicial-review scheme set forth in [8 U. S. C.] §1105a and instituted a new (and appreciably greater restrictive) one in 8 U. S. C. §1252.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 475 (1999) (AAADC). The new review machine extensively limited the supply of judicial assessment and streamlined all challenges to a elimination order right into a single intending: the petition for evaluate. See, e.g., eight U. S. C. §1252(a)(2) (barring assessment of positive elimination orders and physical games of govt discretion); §1252(b)(three)(C) (establishing strict filing and briefing deadlines for review complaints); §1252(b)(nine) (consolidating demanding situations into petition for assessment). Three adjustments effected by using IIRIRA are of specific importance to this case.
Before IIRIRA, courts of appeals lacked jurisdiction to check the deportation order of an alien who had already left america. See §1105a(c) (1994 ed.) (“An order of deportation or of exclusion shall no longer be reviewed by any court … if [the alien] has departed from the USA after the issuance of the order”). Accordingly, an alien who appealed a decision of the BIA changed into normally entitled to remain inside the United States throughout judicial assessment. This became executed through a provision offering maximum extraterrestrial beings with an automated live in their removal order whilst judicial overview become pending. See §1105a(a)(three) (“The service of the petition for overview … shall live the deportation of the alien pending dedication of the petition with the aid of the courtroom, except the court docket otherwise directs”).
IIRIRA inverted those provisions to permit for greater set off elimination. First, Congress lifted the ban on adjudication of a petition for review once an alien has departed. See IIRIRA §306(b), one hundred ten Stat. 3009–612 (repealing §1105a). Second, due to the fact courts were no longer prohibited from proceeding with evaluate as soon as an alien departed, see Dada v. Mukasey, 554 U. S. 1, ___ (2008) (slip op., at 19–20), Congress repealed the presumption of an automatic live, and changed it with the following: “Service of the petition at the officer or worker does now not stay the removal of an alien pending the courtroom’s choice on the petition, except the court orders otherwise.” eight U. S. C. §1252(b)(3)(B) (2006 ed.).
Finally, IIRIRA limited the supply of injunctive remedy:
“Limit on injunctive remedy
“(1) In trendy
“Regardless of the nature of the movement or claim or of the identity of the birthday party or events bringing the motion, no courtroom (apart from the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of element IV of this subchapter, as amended via [IIRIRA], aside from with recognize to the utility of such provisions to an individual alien in opposition to whom court cases under such part have been initiated.
“(2) Particular cases
“Notwithstanding another provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this phase unless the alien indicates by way of clean and convincing proof that the access or execution of such order is prohibited as a count of law.” §1252(f).
This provision, mainly subsection (f)(2), is the source of the events’ war of words.
The events agree that courts of appeals considering a petition for evaluation of a removal order may additionally save you that order from taking impact and consequently block removal while adjudicating the petition. They disagree over the same old a court ought to follow in finding out whether to do so. Nken argues that the “conventional” widespread for a live applies. Under that general, a court considers 4 factors: “(1) whether or not the stay applicant has made a sturdy displaying that he's probable to succeed on the merits; (2) whether or not the applicant could be irreparably injured absent a live; (3) whether issuance of the stay will significantly injure the alternative parties inquisitive about the proceeding; and (four) in which the public interest lies.” Hilton v. Braunskill, 481 U. S. 770, 776 (1987).
The Government disagrees, arguing that a stay is certainly a shape of injunction, or alternatively that the relaxation petitioner seeks is greater appropriately characterised as injunctive, and consequently that the boundaries on injunctive comfort set forth in subsection (f)(2) follow. Under that provision, a court won't “enjoin” the elimination of an alien challenge to a final removal order, “except the alien indicates via clean and convincing evidence that the entry or execution of such order is against the law as a rely of regulation.” eight U. S. C. §1252(f)(2). Mindful that statutory interpretation turns on “the language itself, the precise context in which that language is used, and the broader context of the statute as an entire,” Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997), we finish that the conventional stay elements—now not §1252(f)(2)—govern a request for a stay pending judicial overview.
An appellate courtroom’s energy to keep an order in abeyance at the same time as it assesses the legality of the order has been defined as “inherent,” preserved within the grant of authority to federal courts to “difficulty all writs necessary or suitable in useful resource of their respective jurisdictions and agreeable to the usages and principles of law,” All Writs Act, 28 U. S. C. §1651(a). See In re McKenzie, a hundred and eighty U. S. 536, 551 (1901). The Court highlighted the historic pedigree and importance of the energy in Scripps-Howard, 316 U. S. four, preserving if so that Congress’s failure expressly to confer the authority in a statute allowing appellate assessment should now not be taken as an implicit denial of that power.
The Court in Scripps-Howard did now not determine what “criteria … ought to govern the Court in exercising th[e] electricity” to furnish a stay. Id., at 17. Nor did the Court don't forget underneath what occasions Congress ought to deny that authority. See ibid. The power to provide a live pending review, but, turned into described as a part of a court’s “conventional equipment for the administration of justice.” Id., at 9–10. That authority was “firmly imbedded in our judicial machine,” “consonant with the ancient processes of federal appellate courts,” and “a electricity as vintage as the judicial gadget of the country.” Id., at thirteen, 17.
The authority to hold an order in abeyance pending evaluate allows an appellate court to act responsibly. A reviewing courtroom ought to deliver considered judgment to endure on the problem earlier than it, but that can't constantly be completed quick enough to come up with the money for relief to the birthday party aggrieved by way of the order beneath evaluation. The desire for a reviewing court ought to no longer be among justice at the fly or participation in what can be an “idle ceremony.” Id., at 10. The potential to supply period in-between alleviation is as a result not truly “[a]n ancient method for retaining rights all through the pendency of an appeal,” id., at 15, however also a way of ensuring that appellate courts can responsibly satisfy their role within the judicial procedure.
At the identical time, a reviewing court might not remedy a struggle among taken into consideration evaluation and effective relief by way of reflexively keeping a final order in abeyance pending evaluate. A live is an “intrusion into the normal procedures of administration and judicial assessment,” Virginia Petroleum Jobbers Assn. v. Federal Power Comm’n, 259 F. 2nd 921, 925 (CADC 1958) (consistent with curiam), and accordingly “isn't a be counted of proper, despite the fact that irreparable damage may in any other case result to the appellant,” Virginian R. Co. v. United States, 272 U. S. 658, 672 (1926). The events and the general public, at the same time as entitled to both cautious overview and a significant choice, also are commonly entitled to the spark off execution of orders that the legislature has made very last.
Subsection (f)(2) does now not by means of its phrases consult with “stays” but alternatively to the authority to “enjoin the elimination of any alien.” The events hence start by disputing whether or not a live is in reality a form of injunction, protected by using the time period “enjoin,” or a exclusive form of relief. An injunction and a live have generally been understood to serve specific purposes. The former is a way by means of which a court docket tells a person what to do or now not to do. When a court docket employs “the fantastic treatment of injunction,” Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982), it directs the conduct of a celebration, and does so with the backing of its complete coercive powers. See Black’s Law Dictionary 784 (sixth ed. 1990) (defining “injunction” as “[a] court order prohibiting a person from performing some unique act or commanding a person to undo a few incorrect or
It is true that “ ‘[i]n a preferred sense, each order of a court docket which commands or forbids is an injunction; but in its usual prison sense, an injunction is a judicial method or mandate operating in personam.’ ” Id., at 800 (eighth ed. 2004) (quoting 1 H. Joyce, A Treatise on the Law Relating to Injunctions §1, pp. 2–3 (1909)). This is so whether the injunction is initial or very last; in both contexts, the order is directed at someone, and governs that birthday celebration’s conduct.
By assessment, in place of directing the conduct of a selected actor, a live operates upon the judicial proceeding itself. It does so either by halting or postponing a few part of the intending, or by temporarily divesting an order of enforceability. See Black’s, supra, at 1413 (sixth ed. 1990) (defining “live” as “a suspension of the case or some unique court cases inside it”).
A live pending appeal without a doubt has some practical overlap with an injunction, particularly a preliminary one. Both could have the practical effect of stopping a few action before the legality of that motion has been conclusively decided. But a stay achieves this end result by using briefly postponing the supply of authority to act—the order or judgment in question—no longer with the aid of directing an actor’s conduct. A stay “absolutely droop[s] judicial alteration of the fame quo,” at the same time as injunctive alleviation “offers judicial intervention that has been withheld via lower courts.” Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers); see additionally Brown v. Gilmore, 533 U. S. 1301, 1303 (2001) (Rehnquist, C. J., in chambers) (“[A]pplicants are searching for not merely a stay of a lower courtroom judgment, but an injunction towards the enforcement of a presumptively legitimate kingdom statute”); Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1302 (1993) (identical) (“By seeking an injunction, candidates request that I trouble an order altering the felony repute quo”).
An alien looking for a live of removal pending adjudication of a petition for overview does now not ask for a coercive order towards the Government, however as an alternative for the transient putting aside of the supply of the Government’s authority to remove. Although any such stay acts to “ba[r] Executive department officials from doing away with [the applicant] from the country,” post, at 7 (Alito, J., dissenting), it does so through returning to the repute quo—the state of affairs earlier than the elimination order become entered. That sort of live, “relat[ing] most effective to the conduct or development of litigation before th[e] courtroom[,] primarily isn't taken into consideration an injunction.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 279 (1988); see Fed. Rule App. Proc. eight(a)(1)(A) (referring to interim remedy from “the judgment or order of a district courtroom pending appeal” as “a stay”). Whether this kind of live would possibly technically be referred to as an injunction is beside the factor; that is not the label via which it is normally recognised. The sun can be a celeb, however “starry sky” does now not consult with a vivid summer day. The terminology of subsection (f)(2) does now not easily cowl stays.
This end is strengthened by the fact that when Congress wanted to refer to a stay pending adjudication of a petition for review in §1252, it used the word “live.” In subsection (b)(three)(B), under the heading “Stay of order,” Congress furnished that service of a petition for assessment “does now not live the elimination of an alien pending the court docket’s selection at the petition, except the court docket orders in any other case.” 8 U. S. C. §1252(b)(three)(B). By evaluation, the language of subsection (f) says nothing approximately remains, but is instead titled “Limit on injunctive remedy,” and refers back to the authority of courts to “enjoin the elimination of any alien.” §1252(f)(2).
“[W]right here Congress consists of particular language in one segment of a statute however omits it in any other segment of the equal Act, it is normally presumed that Congress acts intentionally and purposely inside the disparate inclusion or exclusion.” INS v. Cardoza-Fonseca, 480 U. S. 421, 432 (1987) (internal quotation marks unnoticed). This is mainly real right here, wherein subsections (b)(3)(B) and (f)(2) were enacted as part of a unified overhaul of judicial review strategies.
Subsection (b)(3)(B) modified the fundamental rules covering remains of elimination, and could had been the natural place to locate an change to the traditional fashionable governing the provide of stays. Under the Government’s view, but, Congress positioned such a provision 4 subsections later, in a subsection that makes no mention of remains, next to a provision prohibiting classwide injunctions against the operation of removal provisions. See 8 U. S. C. §1252(f)(1) (allowing injunctions best “with respect to the utility of such provisions to an character alien”); AAADC, 525 U. S., at 481–482. Although the dissent “would now not study too much into Congress’ selection to discover this sort of provision in one subsection rather than in any other,” submit, at 8, the Court often takes Congress’s structural picks into consideration when decoding statutory provisions. See, e.g., Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 13).
The Government counters that petitioner’s view “fails to provide any operative impact to Section 1252(f)(2).” Brief for Respondent 32. Initially, this argument undercuts the Government’s textual reading. It is one aspect to recommend that “enjoin” in subsection (f)(2) covers a vast spectrum of court orders and relief, which includes both stays and greater traditional injunctions. It is pretty every other to indicate that Congress used “enjoin” to refer exclusively to stays, so that a failure to encompass remains in subsection (f)(2) could render the supply superfluous. If not anything else, the terms are never synonymous.
Leaving that apart, there is some thing to the Government’s point; the precise position of subsection (f)(2) underneath petitioner’s view isn't smooth to give an explanation for. Congress might also had been worried approximately the opportunity that courts could enjoin utility of precise provisions of the INA, see 8 U. S. C. §1252(f)(1) (prohibiting injunctions “other than with appreciate to the utility of [Section IV of the INA] to an person alien”), or approximately injunctions that might be to be had below the restricted habeas provisions of subsection (e). Or possibly subsection (f)(2) turned into sincerely blanketed as a catchall provision elevating the bar on any availability (even unforeseeable availability) of “the first-rate treatment of injunction.” Weinberger, 456 U. S., at 312. In any occasion, the Government’s point is not sufficient to outweigh the robust symptoms that subsection (f)(2) isn't moderately understood to be directed at stays.
Applying the subsection (f)(2) wellknown to stays pending attraction would now not satisfy the historic office of any such stay. The entire idea is to preserve the problem underneath overview in abeyance because the appellate court docket lacks enough time to determine the deserves. Under the subsection (f)(2) trendy, however, a live would simplest be granted after the court docket in impact decides the deserves, in an expedited way. The court docket could have to do so below a preferred—“clear and convincing proof”—that doesn't so much hold the availability of next overview as render it redundant. Subsection (f)(2), in short, would invert the commonplace position of a stay, requiring a definitive merits decision earlier in place of later.
The authority to furnish remains has historically been justified with the aid of the perceived want “to save you irreparable injury to the events or to the general public” pending assessment. Scripps-Howard, 316 U. S., at nine. Subsection (f)(2) on its face, however, does no longer allow any attention of damage, irreparable or in any other case, even harm which could deprive the movant of his proper to petition for evaluate of the removal order. Subsection (f)(2) does no longer solve the catch 22 situation remains traditionally addressed: what to do while there's inadequate time to remedy the deserves and irreparable damage can also result from postpone. The provision as a substitute requires determining the merits beneath a better preferred, with out regard to the possibility of irreparable harm.
In quick, making use of the subsection (f)(2) trendy within the stay context consequences in some thing that doesn't remotely seem like a live. Just like the Court in Scripps-Howard, we are loath to conclude that Congress would, “without sincerely expressing this kind of purpose, deprive the Court of Appeals of its normal strength to live orders beneath evaluation.” Id., at eleven. Subsection (f)(2) would really deprive courts of their “customary” live electricity. Our evaluation does no longer persuade us that Congress did that in subsection (f)(2). The 4-thing check is the “conventional” one, Hilton, 481 U. S., at 777, and the Government has not overcome the “presumption favoring the retention of lengthy-set up and familiar standards, except while a statutory purpose to the contrary is obvious.” Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952). We accept as true with petitioner that an alien need now not fulfill the stressful wellknown of §1252(f)(2) while asking a court docket of appeals to stay removal pending judicial review.
So what widespread does govern? The query presented, as stated, offers the alternative of “ ‘the traditional take a look at for remains,’ ” 555 U. S., at ___, but the parties dispute what that test is. See Brief for Respondent 46 (“[T]he 4-element fashionable calls for a more annoying showing than petitioner indicates”); Reply Brief for Petitioner 26 (“The Government argues … that the [stay] check ought to be reformulated”).
“A stay isn't always a count of right, despite the fact that irreparable damage may in any other case end result.” Virginian R. Co., 272 U. S., at 672. It is alternatively “an exercising of judicial discretion,” and “[t]he propriety of its problem depends upon the occasions of the precise case.” Id., at 672–673; see Hilton, supra, at 777 (“[T]he conventional live elements contemplate individualized judgments in each case”). The celebration soliciting for a stay bears the burden of showing that the instances justify an exercising of that discretion. See, e.g., Clinton v. Jones, 520 U. S. 681, 708 (1997); Landis v. North American Co., 299 U. S. 248, 255 (1936).
The truth that the issuance of a stay is left to the court’s discretion “does now not mean that no legal popular governs that discretion… . ‘[A] motion to [a court’s] discretion is a movement, no longer to its inclination, but to its judgment; and its judgment is to be guided by using sound criminal ideas.’ ” Martin v. Franklin Capital Corp., 546 U. S. 132, 139 (2005) (quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.)). As cited earlier, those legal concepts have been distilled into consideration of 4 factors: “(1) whether or not the live applicant has made a sturdy displaying that he is probably to be triumphant at the deserves; (2) whether or not the applicant might be irreparably injured absent a live; (three) whether issuance of the stay will notably injure the other parties inquisitive about the proceeding; and (4) in which the general public hobby lies.” Hilton, supra, at 776. There is big overlap among those and the elements governing preliminary injunctions, see Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 14); not because the two are one and the identical, but because comparable worries arise whenever a court order can also allow or disallow expected action earlier than the legality of that movement has been conclusively decided.
The first elements of the conventional popular are the maximum crucial. It isn't sufficient that the hazard of fulfillment on the deserves be “better than negligible.” Sofinet v. INS, 188 F. 3d 703, 707 (CA7 1999) (internal quotation marks left out). Even petitioner acknowledges that “[m]ore than a mere ‘opportunity’ of comfort is needed.” Reply Brief for Petitioner 21 (quoting Brief for Respondent 47). By the identical token, really displaying a few “possibility of irreparable harm,” Abbassi v. INS, 143 F. 3d 513, 514 (CA9 1998), fails to meet the second factor. As the Court mentioned in advance this Term, the “ ‘possibility’ preferred is too lenient.” Winter, supra, at ___ (slip op., at 12).
Although elimination is a severe burden for lots extraterrestrial beings, it is not categorically irreparable, as some courts have stated. See, e.g., Ofosu v. McElroy, ninety eight F. 3d 694, 699 (CA2 1996) (“[O]rdinarily, whilst a party seeks [a stay] pending enchantment, it's miles deemed that exclusion is an irreparable harm”); see additionally Petitioner’s Emergency Motion for a Stay 12 (“[T]he equities specially desire the alien dealing with deportation in immigration cases wherein failure to furnish the live might result in deportation earlier than the alien has been able to attain judicial review”).
The automatic stay previous to IIRIRA reflected a popularity of the irreparable nature of damage from elimination before choice on a petition for assessment, for the reason that the petition abated upon elimination. Congress’s choice in IIRIRA to allow persevered prosecution of a petition after removal removed the cause for express remains, as reflected inside the repeal of the automated live in subsection (b)(three)(B). It is consequently plain that the burden of elimination by myself cannot constitute the needful irreparable damage. Aliens who're eliminated may additionally retain to pursue their petitions for review, and those who be successful can be afforded effective alleviation by way of facilitation of their return, along side recuperation of the immigration status that they had upon removal. See Brief for Respondent forty four.
Once an applicant satisfies the first two factors, the conventional live inquiry calls for assessing the harm to the opposing celebration and weighing the public interest. These factors merge while the Government is the opposing birthday celebration. In thinking about them, courts should remember that the Government’s position because the respondent in each elimination proceeding does no longer make the public interest in every man or woman one negligible, as some courts have concluded. See, e.g., Mohammed, 309 F. 3d, at 102 (Government harm is not anything greater than “one alien [being] permitted to stay even as an enchantment is determined”); Ofosu, supra, at 699 (the Government “suffers no offsetting damage” in removal instances).
Of route there may be a public interest in stopping aliens from being wrongfully eliminated, particularly to international locations wherein they are probable to face extensive damage. But this is no basis for the blithe announcement of an “absence of any damage to the public interest” when a stay is granted. Petitioner’s Emergency Motion for a Stay thirteen. There is usually a public interest in set off execution of removal orders: The continued presence of an alien lawfully deemed detachable undermines the streamlined elimination lawsuits IIRIRA installed, and “allow[s] and extend[s] a continuing violation of United States law.” AAADC, 525 U. S., at 490. The hobby in set off removal may be heightened by the instances as nicely—if, as an instance, the alien is especially risky, or has extensively prolonged his live by way of abusing the processes provided to him. See ibid. (“Postponing justifiable deportation (within the hope that the alien’s status will alternate—with the aid of, for example, marriage to an American citizen—or clearly with the object of extending the alien’s illegal stay) is often the fundamental item of resistance to a deportation proceeding”). A court requested to stay removal can't sincerely assume that “[o]rdinarily, the stability of hardships will weigh heavily inside the applicant’s favor.” Andreiu, 253 F. 3d, at 484.
* * *
The Court of Appeals did now not suggest what fashionable it carried out in denying Nken a stay, however Circuit precedent required the utility of §1252(f)(2). Because we've concluded that §1252(f)(2) does no longer govern, we vacate the judgment of the Court of Appeals and remand for consideration of Nken’s movement for a stay underneath the standards set forth on this opinion.
It is so ordered.
The dissent keeps that “[a]n order preventing an government officer from [enforcing a removal order] does now not ‘really droop judicial alteration of the repute quo,’ ” however instead “blocks govt officials from sporting out what they view as proper enforcement of the immigration laws.” Post, at 7 (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers)). But the relaxation sought here might truly suspend administrative alteration of the status quo, and we've got long recognized that such transient alleviation from an administrative order—much like brief comfort from a court docket order—is considered a stay. See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 10–11 (1942).
The dissent would distinguish Scripps-Howard on the ground that Nken does not surely are trying to find to live a very last order of removal, however rather seeks “to enjoin the Executive Branch from implementing his removal order pending judicial evaluate of a wholly separate order [denying a motion to reopen].” Post, at four, n. But a willpower that the BIA should have granted Nken’s movement to reopen could always extinguish the finality of the removal order. See Tr. of Oral Arg. for Respondent forty two (“[I]f the movement to reopen is granted, that vacates the final order of removal and, therefore, there is not a final order of elimination pursuant to which the alien may be eliminated”). The comfort sought here is properly termed a “live” because it suspends the impact of the elimination order.
KENNEDY, J., CONCURRING
NKEN V. HOLDER
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
JEAN MARC NKEN, PETITIONER v. ERIC H.
HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to america court of
appeals for the fourth circuit
[April 22, 2009]
Justice Kennedy, with whom Justice Scalia joins, concurring.
I be a part of the Court’s opinion and agree that the conventional four-part trendy governs an application to live the elimination of an alien pending judicial overview. This is the much less stringent of the two requirements at difficulty. See Kenyeres v. Ashcroft, 538 U. S. 1301, 1303–1305 (2003) (Kennedy, J., in chambers).
It seems suitable to underscore that in maximum cases the debate approximately which general should follow could have little sensible impact furnished the court thinking about the stay utility adheres to the demanding general set forth. A live of elimination is an awesome remedy that ought to no longer be granted within the ordinary case, tons much less presented as of right. Virginian R. Co. v. United States, 272 U. S. 658, 672–673 (1926); see additionally Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 14).
No celebration has furnished the Court with empirical information at the wide variety of stays granted, the correlation among remains granted and remaining success on the deserves, or similar matters. The records might be helpful so that enjoy can exhibit whether or not this decision yields a truthful and effective end result. Then, too, Congress can examine whether its coverage targets are being realized by means of the law it has enacted. Based on the Government’s representations at oral argument, however, there are grounds for situation. See Tr. of Oral Arg. 35 (“[W]e do now not have empirical information, . . . but [stays of removal] are—within the Ninth Circuit in our enjoy— . . . granted pretty regularly”). This problem is of particular importance in the ones Circuits with States on our worldwide borders. The Court of Appeals for Ninth Circuit, for instance, considers over half of of all immigration petitions filed nationwide, and immigration instances compose almost half of of the Ninth Circuit’s docket. See Catterson, Symposium, Ninth Circuit Conference: Changes in Appellate Caseload and Its Processing, 48 Ariz. L. Rev. 287, 297 (2006).
Under both fashionable, even the much less stringent trendy the Court adopts these days, courts need to no longer supply stays of elimination on a habitual foundation. The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, reinforces this factor. Before IIRIRA, extraterrestrial beings who left the USA not had the capability to are searching for review in their elimination orders, see eight U. S. C. §1105a(c) (1994 ed.) (repealed 1996), so they could extra easily have established irreparable damage because of their removal. It is possibly because of this Congress determined to “live the deportation of [an] alien pending willpower of the petition by using the court docket, except the court in any other case direct[ed].” §1105a(a)(3) (equal). IIRIRA, but, removed that prohibition (as well as the automatic live provision), and courts may now assessment petitions after extraterrestrial beings have been eliminated. See Brief for Respondent 44; ante, at 4, 15; post, at five, 9 (Alito, J., dissenting).
This change should imply that obtaining a stay of elimination is extra hard. Under the Court’s four-part popular, the alien ought to show both irreparable injury and a probability of achievement at the deserves, in addition to setting up that the pastimes of the events and the public weigh in his or her want. Ante, at 14–15. As the Court explains, due to the fact extraterrestrial beings might also maintain to are seeking assessment and obtain relief after removal, “the burden of elimination alone can't represent the requisite irreparable damage.” Ante, at 15. As a end result of IIRIRA there should be a particularized, irreparable damage beyond mere elimination to justify a stay.
That isn't to mention that demonstration of irreparable harm, with out greater, is enough to justify a live of elimination. The Court has held that “[a] live isn't a rely of proper, even though irreparable damage would possibly in any other case result.” Virginian R. Co., supra, at 672. When thinking about fulfillment at the deserves and irreparable harm, courts can not dispense with the specified displaying of one without a doubt because there may be a strong chance of the other. This is clear in the choices of Justices of the Court applying the traditional factors. See, e.g., Curry v. Baker, 479 U. S. 1301, 1302 (1986) (Powell, J., in chambers) (“It is no doubt true that, absent [a stay], the applicant right here will suffer irreparable damage. This truth alone isn't always sufficient to justify a live”); Ruckelshaus v. Monsanto Co., 463 U. S. 1315, 1317 (1983) (Blackmun, J., in chambers) (“[L]ikelihood of fulfillment on the deserves need no longer be taken into consideration … if the applicant fails to expose irreparable harm from the denial of the stay”). As the ones decisions make clear, “ ‘the applicant should meet a heavy burden of displaying now not most effective that the judgment of the lower court docket turned into misguided at the deserves, but also that the applicant will go through irreparable injury if the judgment is not stayed pending his appeal.’ ” Williams v. Zbaraz, 442 U. S. 1309, 1311 (1979) (Stevens, J., in chambers) (quoting Whalen v. Roe, 423 U. S. 1313, 1316 (1975) (Marshall, J., in chambers)).
ALITO, J., DISSENTING
NKEN V. HOLDER
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
JEAN MARC NKEN, PETITIONER v. ERIC H.
HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states courtroom of
appeals for the fourth circuit
[April 22, 2009]
Justice Alito, with whom Justice Thomas joins, dissenting.
The Court’s choice nullifies an critical statutory provision that Congress enacted while it reformed the immigration laws in 1996. I might give impact to that provision, and I consequently respectfully dissent.
When an alien is charged with being detachable from america, an Immigration Judge (IJ) conducts a hearing, gets and considers evidence, and determines whether or not the alien is detachable. See eight U. S. C. §1229a(a); 8 CFR §§1240.1(a)(1)(i), (c) (2008). If the IJ enters an order of elimination, that order becomes final when the alien’s attraction to the Board of Immigration Appeals (Board) is unsuccessful or the alien declines to appeal to the Board. See eight U. S. C. §1101(47)(B); 8 CFR §§1241.1, 1241.31. Once an order of removal has turn out to be final, it could be performed at any time. See 8 U. S. C. §§1231(a)(1)(B)(i), 1252(b)(eight)(C); eight CFR §1241.33. Removal orders “are self-executing orders, now not structured upon judicial enforcement.” Stone v. INS, 514 U. S. 386, 398 (1995).
After the removal order is final and enforceable, the alien can also file a motion to reopen earlier than the IJ, see eight U. S. C. §1229a(c)(7), or a petition for evaluation before the right courtroom of appeals, see §1252(a)(1). While both project is pending, the alien may additionally ask the Executive Branch to live its own hand. See eight CFR §§241.6(a)–(b), 1241.6(a)–(b). If, however, the alien needs a courtroom to restrain the Executive from executing a very last and enforceable removal order, the alien must are looking for an injunction to achieve this. See 8 U. S. C. §1252(a)(1) (making a very last order of elimination issue to twenty-eight U. S. C. §2349(b), which presents that an “interlocutory injunction” can “restrain” the “execution of” a very last order). The simple text of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Div. C, one hundred ten Stat. 3009–546, provides the relevant prison preferred for granting such alleviation: “Notwithstanding every other provision of regulation, no courtroom shall enjoin the elimination of any alien pursuant to a very last order under this phase except the alien shows by means of clean and convincing evidence that the entry or execution of such order is prohibited as a remember of regulation.” eight U. S. C. §1252(f)(2).
In my view, petitioner’s request for an order stopping his removal pending disposition of his contemporary petition for overview changed into governed by eight U. S. C. §1252(f)(2). Petitioner is “remova[ble] … pursuant to a very last order,” and he sought a court docket order to “enjoin” the Executive Branch’s execution of that removal.
There is not any dispute that petitioner is “remova[ble] … pursuant to a very last order.” Ibid. On March four, 2005, the IJ determined that petitioner changed into detachable under §1227(a)(1)(B) and denied his claims for asylum, withholding of removal, and safety under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. eighty five. See App. 32–43. Petitioner appealed to the Board, and on June sixteen, 2006, the Board affirmed. Id., at 44–49. On that date, petitioner’s order of elimination became administratively very last, and the Executive Branch have become legally entitled to do away with him from america. See eight U. S. C. §1231(a)(1)(B)(i); 8 CFR §1241.33(a).
The best ultimate query, consequently, is whether the interim equitable remedy that petitioner sought became an order “enjoin[ing]” his removal as that term is utilized in eight U. S. C. §1252(f)(2). I trust that it became.
In ordinary usage, the time period “enjoin” method to “require,” “command,” or “direct” an motion, or to “require someone … to perform, or to abstain or desist from, some act.” Black’s Law Dictionary 529 (sixth ed. 1990) (hereinafter Black’s). See additionally Webster’s Third New International Dictionary 754 (1993) (defining “enjoin” to mean “to direct, prescribe, or impose by means of order”; “to limit or restrain with the aid of a judicial order or decree”). When an alien subject to a final order of elimination seeks to bar government officials from appearing upon that order pending judicial attention of a petition for assessment, the alien is seeking to “enjoin” his or her elimination. The alien is looking for an order “restrain[ing]” those officials and “requir[ing]” them to “abstain” from executing the order of elimination.
The Court concludes that §1252(f)(2) does now not apply in this example due to the fact, in the Court’s view, that provision applies most effective to requests for an injunction and now not to requests for a stay. That end is wrong for as a minimum three reasons.
First, a stay is “a sort of injunction,” Black’s 1413, as even the Court grudgingly concedes, see ante, at 10 (an order blocking off an alien’s removal pending judicial evaluation “may technically be known as an injunction”). See additionally Teshome-Gebreegziabher v. Mukasey, 528 F. 3d 330, 333 (CA4 2008) (the time period “live” “is a subset of the wider term ‘enjoin,’ ”); Kijowska v. Haines, 463 F. 3d 583, 589 (CA7 2006) (a stay “is a shape of injunction”); Weng v. United States Atty. Gen., 287 F. 3d 1335, 1338 (CA11 2002) (“[T]he simple that means of enjoin consists of the provide of a stay”).
Both statutes and judicial choices refer to orders that “stay” criminal lawsuits as injunctions. For example, the Anti-Injunction Act affords that “[a] court of america might not furnish an injunction to stay proceedings in a State court docket.” 28 U. S. C. §2283. See additionally Hill v. McDonough, 547 U. S. 573, 578–580 (2006) (habeas petitioner sought injunction to live his execution); McMillen v. Anderson, 95 U. S. 37, 42 (1877) (“[Petitioner] can, if he's wrongfully taxed, stay the intending for its series via procedure of injunction”); Nivens v. Gilchrist, 319 F. 3d 151, 153 (CA4 2003) (denial of “injunction” to “stay [a] trial”); Jove Eng., Inc. v. IRS, 92 F. 3d 1539, 1546 (CA11 1996) (automatic live is “essentially a court-ordered injunction”). And it's far revealing that the same old that the Court adopts for figuring out whether or not a live need to be ordered is the usual that is utilized in weighing an utility for a preliminary injunction. Ante, at 14 (adopting preliminary injunction popular set out in Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 14)).
Second, the context surrounding IIRIRA’s enactment indicates that §1252(f)(2) changed into an crucial—not a superfluous—statutory provision. This Court need to interpret it for that reason.
IIRIRA become designed to expedite elimination and limit the capacity of extraterrestrial beings to stay on this united states of america pending judicial review. Before IIRIRA, the submitting of a petition for evaluation robotically stayed removal except the court of appeals directed in any other case. 8 U. S. C. §1105a(a)(three) (1994 ed.) (repealed 1996). IIRIRA repealed this provision and, to pressure home the point, specifically furnished that “[s]ervice of the petition [for judicial review] . . . does no longer stay the removal of an alien pending the court docket’s selection at the petition, except the court orders in any other case.” §1252(b)(three)(B) (2006 ed.) (emphasis brought). In addition, “many provisions of IIRIRA are geared toward protecting the Executive’s discretion from the courts.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 486 (1999) (emphasis deleted). Indeed, “protective the Executive’s discretion from the courts . . . can pretty be stated to be the subject matter of the rules.” Ibid. Section 1252(f)(2), which gives that a court might not block removal for the duration of the judicial evaluate technique except a heightened wellknown is met, fits flawlessly within this scheme.
The Court’s interpretation, via comparison, produces anomalous outcomes. If §1252(f)(2) does no longer provide the usual to be used by the courts in figuring out whether or not an alien need to be accepted to remain in this us of a pending judicial evaluation, then IIRIRA left the formula of that general entirely to the discretion of the courts. A Congress that sought to expedite removal and restriction judicial discretion is not going to have taken that method.
More vital, if §1252(f)(2) does no longer set the same old for blocking off removal pending judicial evaluate, then, as the Court concedes, “the exact function of subsection (f)(2) . . . isn't always smooth to give an explanation for.” Ante, at 12. “In construing a statute we're obliged to present effect, if feasible, to every word Congress used.” Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979). We should now not gently finish that Congress enacted a provision that serves no function, and the Court’s hyper-technical distinction between an injunction and a live does not provide a sufficient justification for adopting an interpretation that renders §1252(f)(2) meaningless. That end result is in particular anomalous within the context of §1252(f)(2), which Congress stated need to apply “[n]otwithstanding any other provision of law.”
Third, if remains and injunctions actually are two completely awesome standards, the order that petitioner sought right here is excellent considered as an injunction. Insofar as there may be a distinction among the 2 principles, I consider the Court that it boils all the way down to this: “A live ‘absolutely droop[s] judicial alteration of the status quo,’ ” whereas an injunction “ ‘grants judicial intervention that has been withheld by decrease courts.’ ” Ante, at 9 (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers)). See additionally Black’s 1413 (defining a stay as an “act of arresting a judicial proceeding by way of the order of a court docket”). Here, petitioner did no longer searching for an order “droop[ing] judicial alteration of the popularity quo.” Instead, he sought an order barring Executive branch officers from disposing of him from the u . s . a .. Such an order is exceptional regarded as an injunction. See McCarthy v. Briscoe, 429 U. S. 1317, 1317, n. 1 (1976) (Powell, J., in chambers) (although candidates claimed to searching for a “live,” the courtroom granted an “injunction” due to the fact “the candidates absolutely [sought] affirmative alleviation” towards executive officials).
Even if petitioner had sought to block his elimination pending judicial evaluate of the order of removal, any intervening time order blockading his removal might first-class be termed an injunction. When the Board affirmed petitioner’s very last elimination order in 2006, it gave the Executive Branch all the felony authority it needed to put off petitioner from the US immediately. An order stopping an govt officer from exercising that authority does no longer “truely droop judicial alteration of the status quo.” Ohio Citizens for Responsible Energy, supra, at 1313. Instead, such an order is maximum nicely termed an injunction as it blocks government officers from carrying out what they view as right enforcement of the immigration laws. And in that regard, it is sizeable that the Hobbs Act—which governs judicial evaluate beneath IIRIRA, see 8 U. S. C. §1252(a)(1)—refers to an “software for an interlocutory injunction restraining or postponing the enforcement, operation, or execution of, or putting aside” a final administrative order. 28 U. S. C. §2349(b) (emphasis added).
In the prevailing case, but, petitioner did no longer are looking for to dam his elimination pending judicial evaluation of his final order of removal. That review concluded lengthy ago. What petitioner asked for turned into an order barring the Executive Branch from removing him pending judicial evaluation of a wholly special order, the Board’s order denying his 0.33 motion to reopen the complaints. Petitioner’s cutting-edge petition for evaluate does not contest the correctness of the elimination order. Rather, he argues that the Board have to have set aside that order due to alleged adjustments in conditions in his home u . s . a .. A movement to reopen an administrative proceeding that is not difficulty to direct judicial overview truly seeks “ ‘an order altering the reputation quo.’ ” Ante, at 9 (quoting Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1302 (1993) (Rehnquist, C. J., in chambers)). Consequently, the relaxation that petitioner sought here is great categorized as an
In addition to its notably technical distinction between an injunction and a live, the Court advances several other justifications for its decision, but none is persuasive.
The Court argues that making use of eight U. S. C. §1252(f)(2) would “deprive” us of our “ ‘standard’ stay strength.” Ante, at thirteen. As referred to above, however, restricting judicial discretion changed into “the topic” of IIRIRA, American-Arab Anti-Discrimination Comm., 525 U. S., at 486. And Congress is unfastened to modify or dispose of the relief that federal courts may additionally award, within constitutional limits that the Court does now not invoke right here. Cf. INS v. St. Cyr, 533 U. S. 289, 299–300 (2001).
The Court opines that subsection (b)(three)(B)—now not subsection (f)(2)—is “the herbal region to locate an change to the traditional wellknown governing the furnish of stays.” Ante, at 11. But I would no longer study an excessive amount of into Congress’ decision to locate such a provision in a single subsection in preference to in another subsection of the equal provision. In addition, there's also not anything “unnatural” approximately Congress’ use of separate subsections of §1252 to deal with a not unusual situation. For instance, §1252(a)(2)(A) lists numerous topics over which “no court shall have jurisdiction to review,” even as §1252(g) lists another subject over which “no court docket shall have jurisdiction to pay attention any cause or claim.” The reality that those provisions are separated with the aid of 5 subsections and framed in slightly distinct terms does not justify ignoring them, just as the space and distinction in terminology among §1252(b)(3)(B) and §1252(f)(2) cannot justify the Court’s result.
Noting that the term “stay” is used in §1252(b)(3)(B) but now not in §1252(f)(2), the Court infers that Congress did not intend that the latter provision follow to stays. Ante, at 10–11. But the usage of the term “stay” in subsection (b)(three)(B) is simple to provide an explanation for. As referred to above, prior to IIRIRA, the Immigration and Nationality Act provided for an automatic “stay” of deportation upon the filing of a petition for evaluation unless the courtroom of appeals directed in any other case. See eight U. S. C. §1105a(a)(three) (1994 ed.) (repealed 1996). The statute provided:
“The provider of the petition for evaluation upon [the Lawyer General’s agents] shall stay the deportation of the alien pending determination of the petition through the courtroom … unless the courtroom otherwise directs … .” Ibid. (emphasis brought).
In IIRIRA, Congress repealed that provision and, to ensure that the pre-IIRIRA exercise would now not be endured, enacted a new provision that explicitly inverted the earlier rule:
“Service of the petition at the officer or worker does no longer live the elimination of an alien pending the courtroom’s choice at the petition, unless the court orders otherwise.” §1252(b)(3)(B) (2006 ed.) (emphasis delivered).
It is accordingly obvious that §1252(b)(3)(B) uses the time period “live” because that is the term that was used inside the provision that it replaced.
Finally, the Court issues that applying §1252(f)(2) could create inequitable outcomes by permitting detachable extraterrestrial beings to remain inside the United States simplest if they are able to show the deserves in their claims underneath a “higher trendy” than the only they might in any other case ought to satisfy. Ante, at 13. But as the Court acknowledges, ante, at 4, IIRIRA specifically pondered that most aliens wishing to contest final orders of removal could be compelled to pursue their appeals from abroad. See §306(b), a hundred and ten Stat. 3009–612 (repealing eight U. S. C. §1105a (1994 ed.)). If such an alien seeks to stay within the United States pending judicial overview, IIRIRA gives that the alien have to make the heightened showing required beneath §1252(f)(2). Congress did not think that this scheme is inequitable, and we should heed what §1252(f)(2) prescribes.
* * *
In my view, the Fourth Circuit changed into accurate to apply §1252(f)(2) and to disclaim petitioner’s utility for an order barring his elimination pending judicial evaluation. Therefore, I might confirm the judgment of the Court of Appeals.
Thus, it's miles unremarkable that we've used the word “stay” to describe an injunction blocking an administrative order pending judicial review. See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942); ante, at 9–10, n. Indeed, our choice in Scripps-Howard, supra, at eleven—just like the Court’s selection nowadays, ante, at 7, 14—relied closely on Virginian R. Co. v. United States, 272 U. S. 658 (1926), the latter of which referred to “remains” as a subset of “injunctions.” See identification., at 669 (noting that the power to issue a “live” “to keep the popularity quo pending appeal” is “an incident” of the energy “to enjoin” an administrative order); see additionally id., at 671–672 (referring interchangeably to a 3-choose district courtroom’s electricity to trouble “injunctions” and “remains”). In any event, each Scripps-Howard and Virginian are inapposite due to the fact petitioner here did not are looking for to “live” his removal order pending judicial overview of that order; instead, he sought to enjoin the Executive Branch from enforcing his elimination order pending judicial review of an entirely separate order. See Stone v. INS, 514 U. S. 386, 395 (1995) (protecting that the IJ’s elimination order and the Board’s denial of a movement to reopen are “ separate very last orders”); Bak v. INS, 682 F. 2d 441, 442 (CA3 1982) (in step with curiam) (“The standard rule is that a motion to reopen deportation court cases is a brand new, independently reviewable order”); Brief for Respondent 51–52 (differentiating petitioner’s venture to the IJ’s elimination order, which “became final well over a 12 months in the past,” from “petitioner’s trendy task[, which] is currently pending” before the Court of Appeals); identification., at 13–14, 36–37 (similar).
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