Speech #1090138892

A number of Federal courts of appeal are in agreement that the standard contained in section 227(c) is inequitable and unworkable. The Second Circuit has said that requiring this standard "would lead to the anomalous result that . . . an alien would have to make a more persuasive showing to obtain a stay than is required to prevail on the merits. thereby permitting the removal of some aliens with meritorious claims against removal." The Seventh Circuit has said that "[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. Yet under the [clear and convincing evidence standard] an alien who is likely to prevail in this court. and likely to face serious injury or death if removed. is not entitled to remain in this nation while the court resolves the dispute." Some will argue that this provision will prevent aliens from abusing the system by filing frivolous appeals simply to gain the stay of deportation. But it is unwise for us to sweep aside decent and humanitarian treatment for many meritorious petitioners to prevent a few from abusing the system. I think we need to consider very carefully whether we want to mandate that our Federal courts get into the business of remanding even one potentially -meritorious petitioner back to certain torture or death before his or her appeal is finally decided.