A three-panel judge of the Ninth Circuit has written a scathing criticism of the court’s internal policy of often delaying the assignment of an opposed motion for a stay of removal until the briefing on the merits of the case is complete.
“Here, the extended stay that Petitioners have already obtained flagrantly violates these principles. Once the stay motion in this case was fully briefed in February 2025, “the court [was] equipped to rule,” and “its obligation to apply the Nken factors [was] triggered.” Id. But rather than present Petitioners’ stay motion to the next available motions panel for decision, the Clerk’s Office (consistent with our general internal practices) held the motion until it could be presented to a merits panel together with the fully completed merits briefing. As a result, by the time that the stay motion was presented to us for decision, the ostensible “administrative stay ha[d] effectively become a stay pending appeal,” but without any consideration of the Nken factors. Id. at 800. Indeed, the 10-month stay that Petitioners obtained with their barebones motion was accomplished without any involvement of an Article III judge.
It is manifestly unlawful to allow a temporary administrative stay to be continued for such an undue length of time after an opposed stay motion has been fully briefed, much less to do so without any case-specific judicial involvement. See Nken, 556 U.S. at 433–34 (holding that granting an opposed stay motion requires application of the traditional stay factors in “an exercise of judicial discretion” (emphasis added)); Doe #1, 944 F.3d at 1223 (holding that a temporary administrative stay “is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits” (emphasis added)); cf. United States v. Johnson, 48 F.3d 806, 809 (4th Cir. 1995) (noting that the settled principle that substantive judicial functions “cannot be delegated to nonjudicial officers for resolution” does not “prohibit courts from using nonjudicial officers to support judicial functions, as long as a judicial officer retains and exercises ultimate responsibility”). Moreover, the practice of generally holding stay motions until they can be presented to the merits panel together with the completed merits briefing squarely violates Nken’s instruction that courts may not “reflexively hold[] a final order in abeyance pending review.” 556 U.S. at 427. Under these principles, once the opposed stay motion in this case was fully briefed, it should have been presented by the Clerk’s Office to the next available motions panel. And, going forward, that is the practice that must be followed in disposing of fully briefed opposed stay motions.”
The panel decision in Rojas-Espinoza v. Bondi can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/10/24/24-7536.pdf
The panel agreed to stay its decision pending a vote on whether to rehear this case en banc and consideration of supplemental briefing from the parties:
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/11/10/24-7536.pdf