There’s a big battle in the Ninth Circuit over how that court handles an alien’s motion for stay of removal pending disposition of his challenge to the removal order. Let’s dive into the weeds.

In 1996 Congress repealed the presumption of an automatic stay for aliens challenging removal orders. The Supreme Court held in 2009 that in determining whether to grant a stay of removal a court of appeals must apply the traditional stay factors. But as a Ninth Circuit panel explained in Rojas-Espinoza v. Bondi last October, the Ninth Circuit has through bureaucratic maneuvering undermined Congress’s repeal and effectively provided automatic stays.

First (in a procedure that I don’t understand the panel to object to), Ninth Circuit internal procedures provide that an alien who files a motion for stay of removal will receive an automatic temporary administrative stay “until further order of the Court.” Second, in the practice that the panel finds deeply objectionable, even after the government has opposed the stay motion, the clerk’s office will fail to send the motion to the next available motions panel for decision and will instead sit on it for the many months until the merits briefing in the case has been completed and a merits panel has been assigned. Third, the merits panel will often decide the stay motion only when it also rules on the merits, so that the “temporary” stay in fact “remains in effect all the way through the disposition of the appeal.”

As the panel observed, “the 10-month stay that Petitioners obtained with their barebones motion was accomplished without any involvement of an Article III judge.”

The panel denied petitioners’ motion for removal. It also declared:

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. 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 [the Supreme Court’s] instruction that courts may not “reflexively hold a final order in abeyance pending review.” 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. [Citations omitted; cleaned up; emphasis added.]

The full Ninth Circuit granted en banc review of the panel ruling and thus vacated its directive on how stay motions should be handled. In an order on Tuesday, the en banc panel of eleven judges denied the petitioners’ motion to stay removal. But Chief Judge Mary Murguia and Judge Eric Tung (the court’s newest member) had a sharp exchange over the court’s practice in handling stay motions in removal cases.

Judge Tung objects that the en banc panel is “deafeningly silent” on the “unlawfulness of this court’s practice of granting automatic stays.” Consistent with the panel opinion, he argues that the Ninth Circuit’s practice of “granting such prolonged automatic stays of removal” is “manifestly unlawful”:

[T]he en banc panel says absolutely nothing about whether the court’s practice of granting prolonged automatic stays is lawful. The three-judge panel carefully explained that this court’s practice defies Supreme Court precedent. Yet not a single member of this en banc panel has tried in its order to rebut that conclusion. Meanwhile, the majority has successfully erased it as precedent. Under cover of darkness, the en banc court buried the body, and there is not much hope of a resurrection.

Chief Judge Murguia offers two basic points in response. First, she contends that the panel addressed an issue that the parties did not raise. Second, she says that concerns regarding court procedures are to be decided by the Ninth Circuit’s executive committee.

In reply, Judge Tung argues that the government did raise the issue and that the court’s executive committee does not have exclusive authority to address the legality of the court’s practices. Further: “Relegating this issue for ‘review’ by a ‘committee’ is to ensure its death. Perhaps that is the point.”

Addendum: I’m sorry to have missed Judge Lawrence VanDyke’s forceful—and characteristically colorful—dissent from the Ninth Circuit’s order three weeks ago that granted rehearing en banc.