## Facts

- William Alexander Leiva-Perez, a native and citizen of El Salvador, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- He alleged extortion and beatings in El Salvador by individuals associated with a political party and claimed fear of persecution if returned.
- An immigration judge denied relief, and the Board of Immigration Appeals (BIA) dismissed the appeal, characterizing his claim as a generalized fear of violence.
- Leiva-Perez filed a petition for review in the Ninth Circuit and moved for a stay of removal pending judicial review; the motion triggered a temporary stay under circuit procedures.
- The Ninth Circuit addressed only the stay-of-removal standard and application, not the merits of the asylum/withholding/CAT claims.

## Issues

1. What standard governs a motion for stay of removal pending a petition for review after the Supreme Court’s decision in *Nken v. Holder*?
2. What level of “likelihood of success” must be shown (probability of success versus “substantial case”/“serious legal questions”)?
3. Must irreparable harm be probable rather than merely possible, and can the court still balance factors under a sliding-scale approach?

## Decision

- The Ninth Circuit granted the motion for a stay of removal pending disposition of the petition for review.
- The court held that circuit stay jurisprudence must be modified to conform to *Nken*.
- The court required a showing of (1) a substantial case for relief on the merits and (2) probable irreparable harm absent a stay.
- The court concluded that limited balancing remains permissible: stronger equities and hardships may offset a weaker (but still substantial and non-frivolous) merits showing.
- Applying the clarified standard, the court found Leiva-Perez showed probable irreparable harm, presented a substantial case, and that hardships tipped sharply in his favor.

## Legal Principles

- A stay of removal is discretionary and evaluated under the traditional four-factor test: (1) likelihood of success, (2) irreparable harm, (3) harm to other parties, and (4) public interest; the first two factors are most important.
- Post-*Nken*, a stay requires more than a “mere possibility” of success and irreparable harm; irreparable harm must be shown as probable.
- “Likelihood of success” does not require showing success is more likely than not; a “substantial case for relief” or “serious legal questions” may suffice when other factors strongly favor a stay.
- The Ninth Circuit may continue a bounded sliding-scale approach, but only within *Nken*’s minimum requirements, particularly the probability of irreparable harm.
- In removal cases, imminent removal that risks serious physical harm and undermines meaningful judicial review can constitute irreparable harm.

## Conclusion

The Ninth Circuit granted a stay of removal and clarified that, after *Nken*, a petitioner must show a substantial case on the merits and that irreparable harm is probable, while permitting limited balancing of hardships and public interest consistent with those thresholds.


Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011)