Tesfamichael, et al v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
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:
Petitioners Senait Kedane Tesfamichael and
Dawit Tessema-Damte, seeking review of their
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 seek-
ing asylum in the United States. He, Dawit, is
Ethiopian and she, Senait, was born in Ethio-
pia 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

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2
leave Ethiopia together. Senait, the ethnically
Eritrean wife, was not allowed to leave. She
lacked the required government-issued docu-
ments, 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 be-
cause 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 Eri-
trea. 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 includ-
ing a two year stay in Eritrea for Senait and a
brief reunion in South Africa, the two peti-
tioned for refugee status in the United States
by claiming past persecution and a well-found-
ed fear of future 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 re-
moval 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 seek-
ing review of a deportation 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
petition on the officer does not stay the re-
moval of an alien pending the court’s decision
on the petition, unless the court orders other-
wise.” 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, that standard
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) (em-
1 See Kenyeres v. Ashcroft, 538 U.S. 1301,
(continued...)
1(...continued)
1305 (2003) (Kennedy, J., denying stay and dis-
cussing 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).

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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 govern-
ment in at least seven circuits, has been re-
jected by six and embraced in a holding by
only one.4
The circuits that have rejected the govern-
ment’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 injunc-
tions:
(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 petitioners than is the “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 injunc-
tion standard when considering requests for
temporary stays.6 That court, in Weng, con-
cluded that IIRIRA had amended the standard
for aliens to 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 Bon-
homme-Ardouin v. U.S. Attorney Gen., 291 F.3d
1289, 1290 (11th Cir. 2002) (Barkett, J., concur-
ring) (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 adopt-
ed by the Eleventh Circuit controls here as well.
Missing from the government’s discussion is a
detailed refutation of the nuanced and reasonably
persuasive arguments relied 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 indi-
cated it would agree with the government’s posi-
tion. 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...)

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4
means “‘[t]o require; command; positively
direct. To require a person by writ of in-
junction, to perform, or to abstain or desist
from, some act.’” Weng, 287 F.3d at 1338
(quoting BLACK’S LAW 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 freez-
es 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 includes the grant of a stay.”
Id. The court also found that the inter-
changeability 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 discre-
tionary 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
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. Nev-
ertheless, 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, how-
ever, have employed equally compelling rea-
soning 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 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 adoption of the standard
urged by the government would render stays
of deportation almost impossible to obtain.
Section 242(f)(2), according to the gov-
ernment, 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, how-
7(...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. Ash-
croft, 374 F.3d 230, 234 (3d Cir. 2004); Arevalo
v. Ashcroft, 344 F.3d 1, 8-9 (1st Cir. 2003); Mo-
hammed 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).

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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 al-
lowance for such stays by court order. Id.
This observation certainly does not conclu-
sively demonstrate that the government’s po-
sition 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 im-
possibility that aliens like petitioners will
receive a stay will not counsel against that
interpretationSSfor such a result is not neces-
sarily 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 acknowledges in Hor, 400
F.3d at 484, “[c]ertainly there is a functional
overlap” of the twoSSboth can “stop an agen-
cy in its tracks.” Nonetheless, history and
usage counsel that the two words carry differ-
ent 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 dis-
trict court’s order, may stay an agency’s deci-
sion where the agency is the forum of initial
decisionmaking and the “initial judicial tribunal
is a court of appeals.” Id. This historical
distinction is reflected in rule 18 of the Federal
Rules of Appellate Procedure, which rec-
ognizes the peculiar nature of “stays” pending
appellate review of agency decisions. FED. R.
APP. P. 18. It is noteworthy that rule 18 no-
where 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 Congress to phrase leg-
islation 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 men-
tions injunctions but not stays as covering
both would force Congress to add provisos
each time it sought to regulate one but not
the other. Once a legal community devel-
ops a stable nomenclature, it is best to ap-
ply it mechanically so that no one is taken
unawares, and so that drafting can be un-
cluttered by provisos . . . .
. . .[A]pplying established legal distinc-
tions 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 Congress is too unpoetic to use

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6
synecdoche, but because that literary device is
incompatible with the need for precision in
legislative drafting.” Reno v. Am.-Arab Anti-
Discrimination Committee, 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
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 operative standard governing their
issuance, but no such standard is found.
Rather than 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 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-Dis-
crimination 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
employ different 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 standards to 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 peti-
tioners 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 re-
quiring clear and convincing evidence of ille-
gality to be successful, will be granted should
this court ultimately decide, on a de novo mer-
its review, that the BIA erred in its legal con-
clusions. See Lopez-Gomez v. Ashcroft, 263
F.3d 442, 444 (5th Cir. 2001). Convinced that
Congress could not have intended this “Kafka-
esque” result, the First Circuit held that sub-
section (f)(2) does not apply to requests for
temporary stays. Id. Although we do not nec-
essarily 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 that would flow
from the adoption of the government’s posi-
tion. See 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 statu-
tory section into a different section when the legis-
lature” did not so direct)).

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7
an alien’s departure. The alien may then re-
turn 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 perse-
cution, “[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 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 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 re-
strain.” 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 all related
phrases such as “stay” would reduce Con-
gress’s use of “restrain” in the previous sub-
section 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 re-
strain”), 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 gov-
ernment 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 only issue 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 auto-
matic.” 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 appel-
late 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 legisla-
tive 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 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 relief, are consid-
ered without reaching a full adjudication on

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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 war-
rant 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 deter-
mining entitlement to a stay, the first (likeli-
hood 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 appropri-
ate one in which to issue a stay.
The IJ and the BIA ruled that petitioners
did not present documentary proof of Ethio-
pian 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 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 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 consti-
tution, 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.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 Sen-
ait’s deportation because, in part, their mar-
riage 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 asy-
lum 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 with Dawit), and was thereafter
denied the ability to exit by the Eritrean gov-
ernment even though she had obtained a visa
to enter South Africa (where she would even-
tually 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 es-
sentially consistent with the testimony of the other
. . . .”).

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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 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 legiti-
mate 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 viola-
tive behavior was caused by the patent perse-
cution 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 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 un-
able 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 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 sufficient to say that the
BIA’s conclusion to the contrary is question-
able 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 this initial
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 suc-
cess on the merits. That likelihood, coupled
with the extraordinary likelihood of irreparable
harm the petitioners face if deported (in the
form of forced separation and likely perse-
cution), and the public interest in having the
immigration laws applied correctly and even-
handedly, justifies the issuance of a stay of the
order of removal pending resolution of the

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merits of the petition for review.
The motion for stay of removal pending re-
view is GRANTED. We emphasize, however,
that our comments on the merits are prelimi-
nary. Another panel of this court will review
anew the facts and the law for a purpose en-
tirely different from the reason for which we
have examined them. Nothing in this opinion
should be interpreted as an indication that pe-
titioners can, will, or should prevail in ulti-
mately forestalling removal and gaining asy-
lum.

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