Kenyeres v. Ashcroft, Attorney General

Background

A Hungarian man who entered the United States on a tourist visa overstayed and applied for asylum, withholding of removal, and deferral under the U.N. torture convention. An immigration judge found him removable, the Board of Immigration Appeals later affirmed after a remand, and the judge concluded his asylum claim was untimely and that serious nonpolitical crime charges (embezzlement and fraud) barred withholding. The applicant had withdrawn his torture-convention request and admitted involvement in money laundering during his testimony.

Reasoning

The immediate legal question was whether a court reviewing a removal order must require “clear and convincing” evidence to grant a temporary stay, as one court held, or may apply the more lenient likelihood-of-success test used by other courts. Justice Kennedy noted that federal courts are divided on this point but did not decide the split here. Instead, he found this individual unlikely to succeed under either standard because the immigration judge’s factual findings — including a translated arrest warrant and Interpol-related evidence — were supported by the record and are binding unless a reviewing court is compelled to disagree.

Real world impact

Because the Justice denied the stay, the applicant’s removal may proceed. The opinion reinforces that courts generally defer to immigration judges’ factual findings in removal cases and that an excessive evidentiary showing is required to overturn those findings. The broader disagreement among federal appeals courts about the proper stay standard remains unresolved and could be addressed in a later, more suitable case.