Immigration · Primary-source case analysis
Nken: A Stay of Removal Uses the Traditional Four-Factor Test
Decision: Nken v. Holder, 556 U.S. 418 (2009).
Nken v. Holder distinguishes a judicial stay, which temporarily suspends enforcement during review, from an injunction that affirmatively restrains removal under a different statutory rule.
Removal remained possible during the petition for review
Jean Nken sought withholding of removal and protection under the Convention Against Torture. After the agency denied reopening and reconsideration, he petitioned for review and asked the Fourth Circuit to stay removal while the case was pending.
The stricter injunction provision did not govern
The majority held that section 1252(f)(2)’s injunction restriction did not supply the standard for a judicial stay. That did not make relief routine. The last two factors merge when the government is the opposing party, but the government’s interest is not negligible merely because it appears in every removal case. Nken, 556 U.S. at 435–436. The court must consider both the interest in avoiding wrongful removal to serious harm and the interest in executing lawful orders, including any case-specific danger or abuse of process.
Four traditional factors apply
The applicant bears the burden of justifying a stay. The first two factors require a strong showing of likely success and more than a possibility of irreparable injury. Strong evidence on one does not excuse a missing showing on the other, as Justice Kennedy emphasized in his concurrence. Nken, 556 U.S. at 433–435, 438 (Kennedy, J., concurring). A well-supported fear of harm cannot replace identifying a viable issue in the petition for review.
The case returned for application
The Court vacated and remanded for the Fourth Circuit to apply the correct standard. It did not decide the ultimate stay motion or the protection claims. Nken, 556 U.S. at 436. The Supreme Court had separately entered an interim stay while considering the case, so saying that it never granted any stay would be inaccurate. Nken, 556 U.S. at 423.
Key takeaways
- A stay is discretionary protection during review, not an entitlement or a final win.
- Show a strong likelihood of success and likely irreparable harm.
- Address government and public interests directly.
- File early enough for reasoned consideration before removal.
Support both the review issue and the specific harm
Bring the decision being challenged and evidence explaining the particular harm removal would cause before review ends. Mishra X Trial Lawyers can assess the merits issue, the harm evidence and the government and public interests together. Call (949) 343-9735 or email office@mishrax.com.