Leiva–perez v. Eric H. Holder Jr.

Decision Date01 April 2011
Docket NumberNo. 09–71636.,09–71636.
Citation11 Cal. Daily Op. Serv. 3953,2011 Daily Journal D.A.R. 4777,640 F.3d 962
PartiesWilliam Alexander LEIVA–PEREZ, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit


Richard Miyamoto, Phung, Miyamoto & Diaz, LLP, Los Angeles, CA, and Salman Alam, Newport Beach, CA, Appointed Pro Bono Amicus Curiae, for the petitioner.Tony West, Assistant Attorney General, Civil Division, Thomas B. Fatouros, Senior Litigation Counsel, Lynda Do and Karen Y. Stewart, Civil Division/Office of Immigration Litigation, Department of Justice, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A094–773–199.Before: KIM McLANE WARDLAW, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.



William Alexander Leiva–Perez filed a petition for review of a decision of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal and relief under the United Nations Convention Against Torture (CAT). Along with his petition for review, Leiva–Perez filed a motion for a stay of removal. Pursuant to Ninth Circuit General Order 6.4(c)(1), Leiva–Perez's motion caused a temporary stay to issue. See De Leon v. INS, 115 F.3d 643, 644 (9th Cir.1997). We hereby grant Leiva–Perez a stay of removal pending determination of his case on its merits and issue this opinion to clarify our standard for stays of removal in light of Nken v. Holder, ––– U.S. ––––, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

I. Background

Before passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104–208, div. C, 110 Stat. 3009–546, aliens appealing a decision of the BIA were generally entitled to an automatic stay of their orders of removal pending judicial review. See 8 U.S.C. § 1105a(a)(3) (repealed 1996). With IIRIRA, Congress eliminated the automatic stay provision, but left intact the authority of the courts of appeal to grant stays as a matter of discretion. See 8 U.S.C. § 1252(b)(3)(B) (2006); see also Andreiu v. Ashcroft, 253 F.3d 477, 480 (9th Cir.2001) (en banc).

Congress did not specify the standard that courts should apply in evaluating an alien's request to stay his removal pending our adjudication of his petition for review. In Abbassi v. INS, 143 F.3d 513 (9th Cir.1998), we decided to apply “the same standards employed by district courts in evaluating motions for preliminary injunctive relief to those stay requests. Id. at 514. We explained that to justify a stay under that standard:

Petitioner must show either a probability of success on the merits and the possibility of irreparable injury, or that serious legal questions are raised and the balance of hardships tips sharply in petitioner's favor. These standards represent the outer extremes of a continuum, with the relative hardships to the parties providing the critical element in determining at what point on the continuum a stay pending review is justified.

Id. (citations omitted). This “continuum” was essentially the same as the “sliding scale” approach we long applied to requests for preliminary injunctions, whereby “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011).

The Abbassi formulation remained our standard for stays of removal until an aspect of it—its treatment of the irreparable harm factor—was rejected as too lenient in Nken. Nken's principal holding was that stays of removal are governed by “the traditional test for stays,” rather than 8 U.S.C. § 1252(f)'s higher standard for enjoining an alien's removal, but it also endeavored to clarify “what that [traditional stay] test is.” 129 S.Ct. at 1760.1

Nken began by noting the four factors that have been considered when evaluating whether to issue a stay:

(1) whether the stay applicant has made a 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 injure the other parties interested in the proceeding; and (4) where the public interest lies.

Id. at 1761 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (quotation marks omitted)). “The first two factors,” Nken said, “are the most critical.” Id.

We will say more about each of these factors in a moment, but pause first to emphasize that while, as we develop later, Nken raised the minimum permissible showing of irreparable harm necessary to justify a stay of removal, it did not disturb the overall manner in which courts balance the various stay factors once they are established. Nken held that if the petitioner has not made a certain threshold showing regarding irreparable harm—and we discuss what that threshold is below—then a stay may not issue, regardless of the petitioner's proof regarding the other stay factors. See Nken, 129 S.Ct. at 1760–61. Our precedent varied from Nken as to the irreparable harm threshold, but not as to the bedrock requirement that stays must be denied to all petitioners who did not meet the applicable irreparable harm threshold, regardless of their showing on the other stay factors. See Abbassi, 143 F.3d at 514. By the same token, even certainty of irreparable harm has never entitled one to a stay. See Nken, 129 S.Ct. at 1760 (“A stay is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion ....” (citation and quotation marks omitted)). In short, a proper showing regarding irreparable harm was, and remains, a necessary but not sufficient condition for the exercise of judicial discretion to issue a stay.

Aside from raising the irreparable harm threshold, Nken did not directly address the common practice of courts to balance the relative equities of the stay factors. We find it significant, though, that Nken twice invoked Hilton as stating the “traditional” test for stays, and that Hilton endorsed the same balancing approach sanctioned by Abbassi. See Nken, 129 S.Ct. at 1756 (citing Hilton as setting forth the “traditional” test for stays); id. at 1760 (same).

Hilton considered the circumstances under which a federal court of appeals should stay the issuance of a writ of habeas corpus following the district court's granting of the writ, thereby maintaining the petitioner's custodial detention pending the resolution of the state's appeal. After noting the various interests of the state and the petitioner that the court could take into consideration in adjudicating the stay request, Hilton explained that the balance of the relative equities “may depend to a large extent upon determination of the State's prospects of success in its appeal.” 481 U.S. at 778, 107 S.Ct. 2113.

Where the State establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release. Where the State's showing on the merits falls below this level, the preference for release should control.

Id. (citations omitted). We take Nken's endorsement of Hilton as an indication that we should continue to employ the type of “continuum” articulated in Abbassi, albeit with a few refinements discussed below.

Further, in a closely analogous situation—a request for a stay pending the filing and disposition of a petition for a writ of certiorari—the Supreme Court recently emphasized the use of a flexible approach bearing a strong resemblance to the Abbassi continuum. See Hollingsworth v. Perry, –––U.S. ––––, ––––, 130 S.Ct. 705, 710, 175 L.Ed.2d 657 (2010) (per curiam) (“In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent.”); see also Ind. State Police Pension Trust v. Chrysler LLC, ––– U.S. ––––, 129 S.Ct. 2275, 2276, 173 L.Ed.2d 1285 (2009) (per curiam) (same).

We note, too, that a panel of our court recently reached a similar conclusion to ours as to the effect of recent Supreme Court cases—in particular, Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)—on the continuing viability of the “sliding scale” approach to preliminary injunctions. See Wild Rockies, 632 F.3d at 1131–32. Wild Rockies held that although Winter had raised the bar on what must be shown on the irreparable harm prong to justify a preliminary injunction, it did not alter our authority to balance the elements of the preliminary injunction test, so long as a certain threshold showing is made on each factor. See id. ([W]e hold that the ‘serious questions' approach survives Winter when applied as part of the four-element Winter test. In other words, ‘serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.”). Although there are important differences between a preliminary injunction and a stay pending review, discussed at length in Nken, see 129 S.Ct. at 1756–59, we do not believe they would support a balancing approach for preliminary injunctions but not stays.

If anything, a flexible approach is even more appropriate in the stay context. Whereas “the extraordinary remedy of injunction” is the means by which a court “directs the conduct of a party ... with the backing of its full coercive powers,” a stay operates only “upon the judicial proceeding itself.... either by halting or postponing some portion of the proceeding, or by temporarily divesting an order of enforceability.” Id. at 1757–58 (quotation marks...

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