Emergency stay of removal; Withholding of removal; 8 USC § 1231(b)(3)(A); Third-country removal under § 1231(b)(2)(E)(vii); Due process challenge to third-country removal policy; Department of Homeland Sec v DVD; Likelihood of success on the merits; Fed R Civ P 23(b)(2) class action; Effect of certified class action on individual equitable relief; Irreparable injury; Public interest

In an order, the court held that petitioner failed to satisfy the demanding standards for an emergency stay of her removal to Ghana because she had not shown a likelihood of success on the merits and the remaining stay factors did not overcome that deficiency. An immigration judge ordered petitioner, a Nigerian citizen, removed to Nigeria in 2013 but simultaneously granted withholding of removal to that country. The government later sought to remove her to Ghana under a DHS third-country removal policy without providing an additional hearing concerning the risk of persecution or torture there. Petitioner filed a mandamus action challenging that policy under federal statutes and the Due Process Clause. After the district court dismissed for lack of jurisdiction, she appealed and sought an emergency stay. The court concluded that her motion pursued “the same claims that the Supreme Court held did not warrant an injunction” in DVD, a nationwide class action challenging the same policy. Petitioner did not dispute that she was a member of that certified Rule 23(b)(2) class. The court reasoned that the Supreme Court’s repeated injunction stays in DVD “squarely controlled” her request and that an absent class member generally may not pursue a separate equitable action asserting the same classwide claim once the class has been certified. Her individualized circumstances did not change the analysis because she continued to challenge DHS’s general policy or practice rather than asserting a materially different individual claim. Thus, the Supreme Court’s stay established no “more than [a] possibility of success on the merits,” which was “all but fatal to her motion.” Her generalized evidence concerning conditions in Ghana also did not establish that the irreparable-injury factor overcame the weakness of her merits showing. Because the remaining government-harm and public-interest factors likewise favored execution of a lawful removal order, the court denied the motion for a stay of removal.