Kenyeres v. Ashcroft, Attorney General
Justice Kennedy, acting alone as Circuit Justice, refused to block the deportation of a Hungarian man who had overstayed his visa, even though he acknowledged that federal appeals courts disagree sharply about how strict a standard applies to such stay requests.
Kennedy said the disagreement among the circuits was important and worth the Supreme Court's attention someday, but concluded this case was a poor vehicle to resolve it because the man was unlikely to win under any standard.
“This, however, is not an appropriate case.”
Kennedy explains why he won't use this case to resolve the circuit split over stay standards.
How it got here: An immigration judge ordered removal, the Board of Immigration Appeals affirmed without opinion, and the Eleventh Circuit denied a stay pending review.
The Case in Depth
What happened
Zsolt Kenyeres, a Hungarian citizen, overstayed a tourist visa by years before immigration authorities began removal proceedings. He sought asylum, withholding of removal, and protection under an anti-torture treaty, but an immigration judge found he was wanted in Hungary for embezzlement, a serious nonpolitical crime that barred relief, and ordered him removed for overstaying his visa.
The question before the Court
Should a Hungarian man facing deportation get a stay blocking his removal while he asked a federal appeals court to review his case?
The Court's answer
No — Justice Kennedy, acting alone as Circuit Justice for the Eleventh Circuit, denied Kenyeres's request to pause his deportation. He acknowledged that federal appeals courts are split on how demanding a standard applies to such stay requests, and that the question is important enough for the full Supreme Court to resolve eventually.
But he found this particular case a poor vehicle for settling that dispute, because Kenyeres could not show he was likely to win under either the strict or the lenient standard. The immigration judge's finding that Kenyeres was wanted in Hungary for a serious financial crime was well-supported by the record, so a reviewing court was unlikely to overturn it, and the Supreme Court was unlikely to agree to hear the case at all.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The decision leaves immigrants nationwide facing deportation with inconsistent odds of pausing their removal while they appeal, depending on which federal circuit hears their case. Some circuits require only a likelihood of success; the Eleventh Circuit demands much stronger proof, making it harder for people there to stay in the country during review.
What changes now
The temporary stay Kennedy had earlier granted is lifted, so Kenyeres's removal can proceed while his petition for review remains before the Eleventh Circuit under that circuit's strict stay standard. The broader disagreement among the circuits over which standard applies to stay requests remains unresolved and will need a different case to reach the full Supreme Court.
What this does not decide
Kennedy explicitly declined to decide which legal standard should govern requests to pause deportation while a case is on appeal, leaving the circuit split unresolved. He said a future case where the choice of standard actually changes the outcome would be a better vehicle for the full Court to address the question.
How the Court got there
The legal reasoning, step by step
- Kennedy identified a genuine split among federal appeals courts over whether a tough legal standard in the immigration statute — requiring 'clear and convincing evidence' that removal is unlawful — governs requests to temporarily pause deportation, or whether that tough standard applies only to longer-term injunctions.
- He explained that the Second, Sixth, and Ninth Circuits use a more forgiving traditional test that asks whether the person is likely to win on the merits and weighs the harm to each side, while the Eleventh Circuit applies the stricter 'clear and convincing evidence' standard to stay requests too.
- Kennedy noted the stakes: if the strict standard governs, people facing deportation would find it far harder to get a court to even look at their case before they are removed, undermining confidence that immigration decisions get fair judicial review.
- Rather than resolving which standard is correct, Kennedy found that Kenyeres could not succeed under either one, because the immigration judge's factual finding that he committed a serious nonpolitical crime — based on a Hungarian arrest warrant and his own testimony about money laundering — was not the kind of finding a reviewing court would be compelled to overturn.
- Applying the deferential rule that courts must uphold immigration officials' factual findings unless the evidence compels the opposite conclusion, Kennedy concluded Kenyeres had no reasonable chance of persuading either the appeals court or the Supreme Court to take up his case.