Francois v. Wilkinson
The Supreme Court refused to temporarily halt the deportation of a 61-year-old man with severe mental illness to Haiti, allowing the government to remove him even as his appeal remained pending before a lower court — and over a lone dissent arguing the Court was sending him into serious danger.
How it got here: An immigration judge granted, then reversed, withholding of removal; the Board of Immigration Appeals dismissed the appeal; the Fifth Circuit denied a stay without explanation; Francois applied to the Supreme Court.
The Case in Depth
What happened
Alex Francois is a 61-year-old man from Haiti who came to the United States in 1979 and has lived here ever since. He suffers from severe mental illness, including schizophrenia, bipolar disorder, and psychosis, and has raised six children, two of whom served in the U.S. Army. An immigration judge originally found he could not be deported to Haiti because he would likely be persecuted there on account of his mental illness, but reversed that conclusion after the Board of Immigration Appeals sent the case back for additional fact-finding.
The question before the Court
Should the Supreme Court temporarily pause the deportation of a mentally ill man to Haiti while his immigration appeal was still pending before a lower court?
The Court's answer
The Court denied the request for a temporary pause on deportation without any explanation. By denying the stay, the Court implicitly found that Francois had not made a sufficient showing under the standard for emergency relief — which requires demonstrating a strong likelihood of winning on appeal, irreparable harm without the pause, limited harm to the government from granting it, and a public interest in the pause.
Justice Sotomayor dissented, arguing that all four factors clearly favored granting the stay: the immigration judge's original findings were well-supported and the Board of Immigration Appeals had improperly sidestepped them; Francois faced genuine danger of persecution in Haiti; and the government had offered no compelling reason the deportation could not wait while the appeal ran its course.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
People in immigration proceedings who seek a temporary pause on deportation while appealing can be removed before courts ever hear their cases. This order shows that even compelling evidence of likely persecution and a pending court appeal may not be enough to secure emergency protection from the Supreme Court.
What changes now
With the stay denied, the government was free to deport Francois to Haiti immediately, before the Fifth Circuit could consider his appeal. His case before the Fifth Circuit was expected to proceed on a briefing schedule set to begin in February 2021. Justice Sotomayor also urged the government to exercise its own administrative discretion to pause the removal voluntarily, noting it has done so in similar situations before. This Court order is not a final ruling on whether Francois is entitled to protection from deportation.
What this does not decide
The order does not decide whether Francois is ultimately entitled to withholding of removal or any other immigration relief. It only declines to temporarily pause his deportation while the appeal continues. The Fifth Circuit still had the underlying case on its docket.
Concurrences and dissents
Dissent — Justice Sotomayor
Justice Sotomayor argued the Court should have granted the temporary pause. She walked through all four stay factors and concluded each one favored Francois — most critically that he was very likely to win his appeal because the Board of Immigration Appeals had improperly circumvented the deference it owed the immigration judge's fact-findings. She warned that removing Francois before his appeal could be heard risked irreversible harm and called on the government to use its own administrative authority to halt the deportation voluntarily.
How the Court got there
The legal reasoning, step by step
- Courts deciding whether to temporarily pause a deportation apply a four-factor balancing test set out in Nken v. Holder (2009): (1) how likely the person is to win the underlying appeal, (2) whether serious harm will occur without the pause, (3) whether the government would be harmed by granting the pause, and (4) where the broader public interest lies. The first two factors are considered the most important.
- The Court denied the stay without written explanation, meaning no majority opinion stated how the justices weighed these four factors. The practical effect was that the government could proceed with deportation before Francois filed even his opening brief in the Fifth Circuit.
- Justice Sotomayor, the sole dissenter, argued the first factor was strongly met: the Board of Immigration Appeals had abused its discretion by effectively ordering the immigration judge to reverse its own well-supported findings rather than applying the deferential 'clearly erroneous' standard of review that the law required.
- On irreparable harm, Sotomayor pointed to the Board's own acknowledgment that Francois would not receive mental health treatment in Haiti and would face detention in deplorable conditions, where extreme punishment of mentally ill detainees is documented — harm that could not be undone once deportation occurred.
- On the public interest, Sotomayor argued that preventing wrongful removal to a country where serious persecution is likely — and honoring U.S. treaty commitments to protect refugees — weighed heavily in Francois' favor, and that the government had shown no urgent reason the removal could not wait for the courts to act.