The Ninth Circuit Court of Appeals has denied a request for a stay of removal filed by a Peruvian family, Maricruz Marisol Rojas-Espinoza, her domestic partner Robert Salvador-Gomez, and their two children. The court found that the family, who entered the United States without inspection in early 2023, failed to meet the necessary legal standards for a stay, specifically highlighting their weak showing of potential harm and their exploitation of court procedures.
Background of the Case
The family, all citizens of Peru, sought asylum and other forms of relief from removal after being found to be in the U.S. unlawfully. They entered the country near Sasabe, Arizona, in January 2023. The Department of Homeland Security initiated removal proceedings in May 2023. The two adult petitioners filed applications for asylum, withholding of removal, and relief under the Convention Against Torture, while the children sought derivative relief based on their father’s asylum request. They admitted the charges and conceded removability at a hearing before an Immigration Judge (IJ).
The basis for their asylum claims centered on events in Peru. Rojas-Espinoza’s brother was attacked in February 2021. Later, in December 2022, she was attacked by two men who threatened her and attempted to rape her. Shortly after, the family moved to Lima, where they received a threatening note. They then left for the United States.
The IJ denied their applications and ordered their removal to Peru. The Board of Immigration Appeals (BIA) upheld the IJ’s decision, concluding that the family didn’t establish a sufficient connection to a protected ground for asylum or withholding of removal. The BIA determined that the family’s proposed social groups—”witnesses to organized crime,” “those opposing gang operations,” and “kinships who are targeted by gangs”—were not recognized social groups under immigration law due to a lack of specificity. The BIA also found that the mistreatment the family experienced was not connected to their claimed membership in these groups. The BIA also denied their applications for relief under the Torture Convention.
The Court’s Decision on the Stay
The family filed a petition for review with the Ninth Circuit and simultaneously requested a stay of their removal. The court, in its order, denied the motion for a stay.
Legal Framework for Stays
The court explained that, in the context of immigration cases, a stay of removal is not automatically granted. Instead, the court applies a four-factor test, established by the Supreme Court in *Nken v. Holder*:
1. Whether the applicant has a strong showing of likelihood of success on the merits.
2. Whether the applicant will be irreparably injured without a stay.
3. Whether granting the stay would substantially injure other parties.
4. Where the public interest lies.
Because the government was the opposing party in this case, the court noted that the third and fourth factors merge. The court emphasized that the family, as the party seeking the stay, carried the burden of proving that these factors justified the court’s intervention.
Application of the Factors
The court found that the family failed to meet the requirements for a stay, particularly concerning the likelihood of success on the merits and the showing of irreparable harm. The family’s stay motion made only a cursory assertion that their appeal would raise “substantial and novel issues of law,” without specifying what those issues were. The court found this insufficient.
Regarding irreparable harm, the court reiterated that under the law, the mere fact of removal is not enough to constitute irreparable harm. The family had to demonstrate a harm specific to their case. The court found that the family had not shown the likelihood of future harm.
Abuse of Court Processes
A key aspect of the court’s decision involved the family’s use of court procedures. The court noted that, by filing a basic initial motion for a stay, the family was granted a temporary administrative stay. However, the court found the family then exploited the court’s internal processes. The family did not file a supplemental motion or a reply to the government’s opposition to the stay, despite the opportunity to do so. The court found that this allowed the family to secure an unwarranted stay of their removal for an extended period. The court concluded that the family had “substantially prolonged their stay by abusing the processes provided to them.” The court indicated that the temporary stay, which had been in place for ten months, had become unlawful. The court stated that once the motion was fully briefed, the court was obligated to apply the *Nken* factors.
Public Interest Considerations
The court weighed public interest considerations. While acknowledging a public interest in preventing wrongful removal, the court found that this was not strongly implicated here, given the family’s weak showing on the merits. The court emphasized the public interest in promptly enforcing removal orders. The court stated that the family’s actions undermined the streamlined removal proceedings established by law. The court found that the public interest weighed against granting the stay, given the family’s actions in prolonging their stay in the U.S.
The Ruling
The court denied the family’s motion to stay removal, lifted the temporary stay, and ordered the family’s removal to Peru to proceed immediately.