UNITED STATES SUPREME COURT DECISIONS ON-LINE
538 U.S. 1301
538 U.S. 1301OCTOBER TERM, 2002
KENYERES v. ASHCROFT, ATTORNEY GENERAL, ET AL.
ON APPLICATION FOR STAY
No.02A777. Decided March 21, 2003
Applicant's request for a stay of his removal from the United States is denied, and a previously granted temporary stay to enable the United States to respond to his claims and to permit JUSTICE KENNEDY to consider the matter is vacated. When the Immigration and N aturalization Service initiated removal proceedings against him for overstaying his tourist visa, an Immigration Judge denied applicant's asylum request and ruled that withholding of removal was unavailable because there was reason to believe that applicant had committed a serious nonpolitical crime outside the United States. The Bureau of Immigration Appeals (BIA) affirmed. The Eleventh Circuit denied a stay of removal pending judicial review on the ground that 8 U. S. C. § 1252(f)(2) requires a court to adduce clear and convincing evidence before granting such a temporary stay. This is not an appropriate case in which to examine and resolve the important question whether § 1252(f)(2)'s heightened standard applies to temporary stays, an issue that has divided the Courts of Appeals. Applicant is unlikely to prevail under either the Eleventh Circuit's standard or the more lenient one adopted by other Courts of Appeals. A reviewing court must uphold an administrative determination in an immigration case unless the evidence compels a contrary conclusion. Given the Immigration Judge's factual findings and the evidence in the removal hearing record, applicant is unable to establish a reasonable likelihood that a reviewing court will be compelled to disagree with the BIA's decision. Thus, his claim is not sufficiently meritorious to create a reasonable probability that four Members of this Court will vote to grant certiorari.
Opinion in Chambers
JUSTICE KENNEDY, Circuit Justice.
This case is before me on an application for a stay of an alien's removal from the United States.
Applicant, Zsolt Kenyeres, is a citizen of the Republic of Hungary. On January 29, 1997, he entered the United States on a tourist visa, which permitted him to remain in the country through July 28, 1997. Applicant remained past the deadline without authorization from the Immigration and Naturalization Service (INS), and on June 21, 2000, the INS initiated removal proceedings, alleging the overstay. Applicant sought asylum under 94 Stat. 105, as amended, 8 U. S. C. § 1158(a), withholding of removal under 110 Stat. 3009-602, 8 U. S. C. § 1231(b)(3), and deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U. N. T. S. 85,23 1. L. M. 1027, see 8 CFR § 208.17 (2002). An Immigration Judge held applicant to be removable; but the Bureau of Immigration Appeals (BIA) concluded that the judge failed to provide sufficient explanation for his decision, and remanded the case.
On remand the Immigration Judge determined that Kenyeres' asylum application was untimely under 8 U. S. C. § 1158(a)(2)(B), and that he could not make a showing of changed circumstances or extraordinary conditions necessary to excuse the delay, see § 1158(a)(2)(D). As to withholding of removal, the judge ruled this relief was unavailable because of "serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States." § 1231(b)(3)(B)(iii).
The INS presented sufficient evidence that applicant was wanted in Hungary on charges of embezzlement, which is a serious nonpolitical crime. See In re Castellon, 17 1. & N. Dec. 616 (BIA 1981). Noting applicant's concession that he overstayed his visa, the Immigration Judge ordered him