Cite as: 592 U. S. ____ (2021)            1

                   SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 20A111
                         _________________


ALEX FRANCOIS v. ROBERT M. WILKINSON, ACTING
            ATTORNEY GENERAL
          ON APPLICATION FOR STAY OF REMOVAL
                      [January 22, 2021]

   The application for stay of removal presented to JUSTICE
ALITO and by him referred to the Court is denied.
   JUSTICE SOTOMAYOR, dissenting from the denial of appli-
cation for stay.
   Alex Francois is a 61-year-old Haitian national who came
to the United States unlawfully when he was 19 and has
lived here ever since. Francois suffers from severe mental
illness, including schizophrenia, bipolar disorder, and psy-
chosis. He presents compelling evidence that, if he is re-
moved to Haiti, he will be targeted for cruel and dehuman-
izing mistreatment because of his mental illness. An
Immigration Judge (IJ) therefore granted Francois with-
holding of removal in 2019, guaranteeing that he would not
be sent to Haiti. That should have been the end of this case.
   Instead, Francois now faces imminent removal to Haiti.
Rather than deferring to the IJ’s factual findings, as the
law requires, the Board of Immigration Appeals (BIA) ig-
nored them and remanded the case back to the IJ for fur-
ther factfinding. On remand, the IJ reviewed the very same
evidentiary record on which it had previously relied to
grant Francois relief. This time, however, the IJ denied
Francois withholding of removal, contradicting not only its
prior decision but also key evidence that the IJ claimed to
be crediting. The BIA dismissed Francois’ appeal.
   Francois is currently seeking review of the BIA’s decision
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                    SOTOMAYOR, J., dissenting

before the Court of Appeals for the Fifth Circuit. The Gov-
ernment, however, plans to remove Francois before he can
even submit his opening brief. This is exactly the kind of
circumstance that calls for a temporary stay of removal.
Francois is likely to prevail on appeal; he will suffer irrepa-
rable harm absent a stay; and the public interest strongly
favors protecting Francois from wrongful removal and the
terrible suffering awaiting him in Haiti. Yet, without ex-
planation, the Fifth Circuit denied a stay. Today, this
Court does the same. I dissent.
                               I
   Francois came to the United States in 1979 to reunite
with his father, a Haitian exile who became an American
citizen. Francois spent much of his life in New York City,
where he worked in construction and raised a family, in-
cluding six children. Two of his children went on to
serve in the U. S. Army, including one who deployed to
Afghanistan.
   According to his father, Francois’ struggles with mental
illness began in his midforties. He experienced delusions,
irritability, and aggression, and as his condition deterio-
rated, he engaged in unusual behavior such as eating grass
and drinking his own urine. Francois also developed a
lengthy criminal history, which appears to stem from the
effects of his illnesses. He has been hospitalized numerous
times, and he is currently being treated with psychotropic
medication.
   In 2018, the Government sought to have Francois de-
clared removable from the United States because he was
not lawfully admitted. The IJ sustained the charge of re-
movability. But the IJ also deemed Francois mentally in-
competent and allowed his attorney to apply for withhold-
ing of removal on his behalf. Withholding of removal
prevents the Government from removing a noncitizen to a
                  Cite as: 592 U. S. ____ (2021)             3

                    SOTOMAYOR, J., dissenting

country where it is more likely than not that the nonciti-
zen’s “life or freedom would be threatened” on account of a
protected ground. 

. §1231(b)(3)(A). There is no
dispute in this case that Francois’ mental illness is one such
protected ground. See App. A to Application for Stay (IJ
Decision, p. 5, n. 2).
   To prove a likelihood of persecution, Francois submitted
an expert declaration explaining that mental illness is
poorly understood and stigmatized in Haiti. “[B]izarre, er-
ratic and non-compliant behavior is often responded to with
extreme physical punishment, torture, and isolation,” in-
cluding locking the mentally ill in “crawlspaces or other
tiny spaces.” App. K to Application for Stay 10. The IJ
placed “great evidentiary weight” on the expert’s assess-
ment, concluding that Francois more likely than not will be
persecuted on account of his mental illness if removed to
Haiti. App. A to Application for Stay (IJ Decision, at 5,
n. 3). Specifically, as a deportee with a criminal record,
Francois will face detention in an “overcrowded, disease-in-
fested” prison “lacking in basic necessities such as plumb-
ing and electricity.”

Because of his mental illness,
Francois’ suffering will be “made worse” “due to lack of ac-
cess to medication or treatment and extreme repressive
measures such as physical punishment, torture and isola-
tion.”

is not detained, his symptoms
will more likely than not “attract the attention of Haitian
authorities or private actors” whom the Haitian Govern-
ment is unwilling or unable to control, “who will persecute
him on account of ” his mental illness.

Accord-
ingly, the IJ granted Francois withholding of removal.
   The Government appealed to the BIA, arguing that the
IJ “erred in finding” that Francois will likely be persecuted
on account of his mental illness. App. B to Application for
Stay 3. The BIA may not, however, “engage in de novo re-
view of findings of fact determined by an immigration
judge.” 8 CFR §1003.1(d)(3)(i) (2020). Instead, the BIA may
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                    SOTOMAYOR, J., dissenting

review such findings “only to determine whether the find-
ings of the immigration judge are clearly erroneous.”

even if the BIA would interpret the
evidentiary record differently, the BIA was required to de-
fer to the IJ’s view of the evidence as long as it was “plausi-
ble.” Anderson v. Bessemer City, 

, 574 (1985).
   Rather than attempting to find clear error, the BIA side-
stepped the standard of review by implausibly concluding
that the IJ had failed entirely to make certain critical fac-
tual findings. The BIA remanded with instructions for the
IJ to determine “whether [Francois] will be singled out in-
dividually for persecution,” what “harm [Francois] is likely
to suffer in Haiti,” and “whether such harm would be on
account of his membership in his proposed particular social
group” (i.e., the severely mentally ill). App. B to Application
for Stay 2.
   In reality, the IJ had already repeatedly concluded that
Francois “will more likely than not be persecuted on ac-
count of ” his mental illness, including through “physical
punishment, torture and isolation.” App. A to Application
for Stay (IJ Decision, at 5–6, and n. 3). The IJ thus recog-
nized the BIA’s order for what it was: an instruction to
change those findings. “Reviewing the evidentiary record
again, in light of the Board’s decision,” the IJ concluded that
Francois would not likely be persecuted on account of his
mental illness. App. C to Application for Stay (IJ Decision
on Remand, at 4). The IJ admitted no additional evidence
to justify its 180-degree turn; it simply recharacterized the
old evidence. To take just one example, the IJ claimed on
remand that Francois’ expert “opine[d] that future persecu-
tion on account of [Francois’] mental health issue is possi-
ble, while stopping short of saying that it is probable.”

In fact, as the IJ recognized in its first decision, the
expert clearly found that “it is very likely that Mr. Francois
will suffer serious and irreparable harm amounting to tor-
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                    SOTOMAYOR, J., dissenting

ture if deported to Haiti,” and that “both his criminal depor-
tee status and mental illness are likely to result in vio-
lence.” App. K to Application for Stay 30–31.
   Francois appealed to the BIA. The BIA acknowledged
“extensive evidence in the record of the mistreatment of the
mentally ill [in Haiti,] particularly when detained or hospi-
talized.” App. D to Application for Stay 4. It also noted the
expert’s use of phrases like “ ‘often,’ ” “ ‘routinely,’ ” and
“ ‘more likely’ ” to describe the probability of harm to the
mentally ill.

But this time, the BIA concluded
that it was bound by the clear-error standard to respect the
IJ’s findings and dismissed Francois’ appeal.
   On December 1, 2020, Francois filed a petition for review
with the Fifth Circuit. On December 16, the Government
notified Francois that he would be removed to Haiti on De-
cember 22, just six days later. Francois requested a stay of
removal from the Fifth Circuit so that he could complete his
appeal. Without explanation, the Fifth Circuit denied a
stay. App. I to Application for Stay. It then set a briefing
schedule beginning in February 2021.
   Francois now seeks a stay of removal from this Court.
                               II
  “It takes time to decide a case on appeal,” and “if a court
takes the time it needs, the court’s decision may in some
cases come too late for the party seeking review.” Nken v.
Holder, 

, 421 (2009). This is such a case. If
Francois is removed to Haiti as the Government intends, he
will suffer extreme harm before any federal court has had
an opportunity to address his claims for relief.
  Courts have an important tool for addressing such a sit-
uation: the power to issue a temporary stay. A stay “allows
an appellate court to act responsibly,” preventing the need
for “justice on the fly” or, worse, the denial of justice alto-
gether.

The decision to issue a stay is guided
by four factors: “ ‘(1) whether the stay applicant has made a
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                    SOTOMAYOR, J., dissenting

strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially in-
jure the other parties interested in the proceeding; and (4)
where the public interest lies.’ ”

The first two
factors “are the most critical.”

Francois is plainly entitled to a
stay. Most importantly, he has shown a strong likelihood
that his appeal will succeed on the merits. As the IJ origi-
nally recognized, the record clearly proves that Francois
more likely than not will be persecuted on account of his
mental illness if removed to Haiti. In its first decision re-
manding the case, the BIA abused its discretion by ignoring
the IJ’s findings. See, e.g., Vitug v. Holder, 

,
1064 (CA9 2013) (finding an abuse of discretion where “the
BIA ignored factual findings of the IJ that were key to the
IJ’s holding”). Exacerbating the BIA’s error, the IJ on re-
mand issued a decision that is entirely unsupported by the
record. The expert, whom the IJ credited, was clear: Fran-
cois “will be specifically targeted for violence by prison and
police officials, over and above the usual harsh treatment of
Haitian criminal deportees, when—as his psychiatric rec-
ords show—he exhibits symptoms of his mental conditions
that will be disturbing and disruptive.” App. K to Applica-
tion for Stay 31.
   For the same reasons, Francois has shown that he will
suffer irreparable harm absent a stay. As the BIA acknowl-
edged, if removed to Haiti, Francois “will not receive the
treatment he needs for his mental illness,” and he “will be
detained” in “deplorable” conditions where “extreme repres-
sive measures are used against detainees.” App. D to Ap-
plication for Stay 1. As his mental condition deteriorates,
he will fall prey to the very persecution that entitles him to
relief on appeal.
   Finally, the public interest weighs heavily in Francois’ fa-
                      Cite as: 592 U. S. ____ (2021)                       7

                        SOTOMAYOR, J., dissenting

vor. The public has a strong interest in preventing nonciti-
zens from being wrongfully removed, “particularly to coun-
tries where they are likely to face substantial harm.” 

; see also Yusupov v. Attorney Gen. of U. S.,

, 977 (CA3 2011) (explaining that withholding
of removal effectuates the United States’ treaty commit-
ment to protect refugees). That interest is heightened be-
cause Francois is currently receiving medical treatment
and is supported here by his family. The Government has
offered no compelling reason that Francois should be
robbed of these critical lifelines before he has had a chance
to be heard in court.
   In light of the foregoing, the Fifth Circuit’s decision to
deny a stay was an abuse of its discretion. See Dada v.
Mukasey, 

, 21 (2008) (noting that it “may consti-
tute an abuse of discretion” to deny a stay where a nonciti-
zen “states nonfrivolous grounds” for relief ). Today, this
Court compounds the Fifth Circuit’s error by refusing to
provide the temporary relief necessary to allow Francois’
appeal to be heard. ∗
——————
  ∗ One difference between the factors in Nken v. Holder, 

(2009), and this Court’s traditional stay criteria is this Court’s consider-
ation of whether a case raises significant issues that merit plenary re-
view (sometimes called “cert-worthiness”). See Maryland v. King, 

, 1302 (2012) (ROBERTS, C. J., in chambers). This inquiry is
complicated in cases such as this one where there is not yet a decision by
the court of appeals, which often informs whether a case presents sub-
stantial questions of law. Even in limited emergency briefing, Francois
identifies several issues that the Fifth Circuit may address, including the
adequacy of procedural safeguards for mentally incompetent noncitizens
in removal proceedings and the due process concerns created by the BIA’s
remand. In addition, this Court does, on occasion, intervene in cases to
correct obvious errors made below. See, e.g., Salazar-Limon v. Houston,
581 U. S. ___, ___–___ (2017) (SOTOMAYOR, J., dissenting from denial of
certiorari) (slip op., at 8–9) (citing cases). This Court has stepped in, for
instance, when it believed important factual findings were “overlooked.”
See Wetzel v. Lambert, 

, 524 (2012) (per curiam). A stay is
not a conclusive determination that this Court will grant certiorari. It
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                       SOTOMAYOR, J., dissenting

  That leaves only the Government itself to avert this un-
necessary tragedy. The Government has long exercised its
discretion to halt removal temporarily, either through an
administrative stay or deferred action.          See 8 CFR
§241.6(a); Department of Homeland Security v. Regents of
Univ. of Cal., 591 U. S. ___, ___ (2020) (slip op., at 3). That
discretion is warranted here. As his father wrote in a letter
to the IJ, Francois is “at his weakest and at his lowest”
point. App. N to Application for Stay 20. For now, all he
asks is the small grace, to which he is legally entitled, of
being allowed to remain in the country while he pursues his
substantial claims for relief. Because I would grant him
that opportunity, I dissent.




——————
simply gives this Court time to consider these issues.