Leiva-Perez v. Holder
640 F.3d 962
| 9th Cir. | 2011Background
- Leiva-Perez petitions for review of BIA asylum, withholding, and CAT denials and seeks a stay of removal.
- Ninth Circuit granted a temporary stay pending merits review in light of Abbassi and related practice.
- Court clarifies the standard for stays of removal after Nken v. Holder, integrating traditional stay balancing with revised irreparable harm.
- IIRIRA repealed automatic stays; courts retain discretion to stay under traditional four-factor test (likelihood of success, irreparable harm, public interest, balance of hardships).
- Nken overruled the permissive irreparable-harm standard in Abbassi, requiring probable irreparable harm as a threshold, plus balancing of factors.
- Leiva-Perez showed irreparable harm likely if returned due to targeted extortion/beatings; he also presented a substantial case on the merits regarding nexus and protected ground.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What standard governs stays of removal post-Nken? | Leiva-Perez urges Abbassi continuum with irreparable harm threshold and balancing. | HOLDER favors traditional four-factor balance with irreparable harm threshold per Nken. | Traditional balancing remains, with irreparable-harm threshold required. |
| Is irreparable harm probable or merely possible for stays of removal? | Irreparable harm is probable given targeted violence if removed. | HOLDER argues harm may be remediable and not inherently irreparable. | Irreparable harm must be probable absent a stay. |
| Must a petitioner show a strong likelihood of success on the merits to obtain a stay? | Substantial likelihood or serious questions suffice under Abbassi and Hilton lines. | Any reasonable chance of success, not necessarily more likely than not, suffices when coupled with other factors. | A substantial case on the merits or serious questions suffices; not required to be more likely than not. |
| How should the public interest be weighed in a stay of removal? | Public interest favors preventing removal to potential harm; minimal government burden shown here. | Public interest supports timely removal but must be weighed with individual circumstances. | Public interest weighs in favor of a stay where harms to applicant and public order considerations align. |
| Did Leiva-Perez meet the four-factor test to warrant a stay? | Probable irreparable harm, strong merits, and favorable balance of hardships; public interest aligns. | Not specifically argued against; standard case-by-case evaluation required. | Yes; stay granted pending review. |
Key Cases Cited
- Nken v. Holder, 129 S. Ct. 1749 (2009) (redefines stay factors and irreparable harm threshold)
- Abbassi v. INS, 143 F.3d 513 (9th Cir. 1998) (sliding-scale approach to stays; irreparable harm treated leniently)
- Hilton v. Braunskill, 481 U.S. 770 (1987) (traditional four-factor stay test)
- Winter v. NRDC, 555 U.S. 7 (2008) (sliding-scale approach; irreparable harm standard refined in injunctions)
- Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (continuation of flexible balance in injunction/stay contexts)
- Hollingsworth v. Perry, 130 S. Ct. 705 (2010) (flexible, case-by-case balancing; similar to Abbassi framework)
- Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009) ( nexus concepts for post-REAL ID Act asylum petitions)
- Soriano v. Holder, 569 F.3d 1162 (9th Cir. 2009) (realignment of nexus requirements post REAL ID Act)
- Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004) (case-specific irreparable harm considerations in immigration)
- Kenyeres v. Ashcroft, 538 U.S. 1301 (2003) (irreparable harm in immigration context; review-preservation concerns)