Immigration · Primary-source case analysis

Nken: A Stay of Removal Uses the Traditional Four-Factor Test

By Aneeta Mishra and Timothy Chan

Published September 13, 2026

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 government argued that section 1252(f)(2) required clear and convincing evidence that execution of the removal order was prohibited by law. The Court held that the provision addressed injunctions against removal, not the historically distinct power to stay enforcement of an order during judicial review.

Four traditional factors apply

A court considers whether the applicant made a strong showing of likely success, whether irreparable injury is likely without a stay, whether a stay would substantially injure other parties, and where the public interest lies. The first two are the most critical, and a mere possibility of harm is insufficient.

The case returned for application

The Court vacated and remanded so the Fourth Circuit could apply the proper standard. It did not grant Nken a stay or decide his underlying protection claims. Applicants must connect the merits record and concrete removal consequences to each factor.

Key takeaways

• A stay preserves the status quo during review.
• Show a strong likelihood of success and likely irreparable harm.
• Address government and public interests directly.
• File early enough for reasoned consideration before removal.