William Alexander Leiva-Perez v. Eric H. Holder Jr., Attorney General
640 F.3d 962 (2011)
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Rule of Law:
To obtain a stay of removal, an alien must first demonstrate that irreparable harm is probable. If that threshold is met, the petitioner must then show either: (a) a strong likelihood of success on the merits and that the public interest does not weigh heavily against a stay; or (b) a substantial case on the merits and that the balance of hardships tips sharply in the petitioner’s favor.
Facts:
- William Alexander Leiva-Perez lived in his home country of El Salvador.
- While in El Salvador, individuals affiliated with the Farabundo Marti National Liberation Front (FMLN), a political party, personally targeted him.
- These individuals attempted to extort money from Leiva-Perez and subjected him to savage beatings.
- Leiva-Perez fled to the United States and applied for asylum, claiming the persecution was on account of his political opinion.
Procedural Posture:
- William Alexander Leiva-Perez applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).
- An Immigration Judge (IJ) denied his application, finding the harm was a 'criminal matter' and not on account of a protected ground.
- Leiva-Perez, as the appellant, appealed the IJ's decision to the Board of Immigration Appeals (BIA).
- The BIA, as the appellee, dismissed the appeal, agreeing that Leiva-Perez had failed to establish the required nexus between the persecution and his political opinion.
- Leiva-Perez filed a petition for review of the BIA's decision with the U.S. Court of Appeals for the Ninth Circuit.
- Contemporaneously, Leiva-Perez filed a motion with the Ninth Circuit requesting a stay of his removal pending the court's review.
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Issue:
Is an alien entitled to a stay of removal when he demonstrates that irreparable harm is probable and presents a substantial case on the merits that tips the balance of hardships sharply in his favor?
Opinions:
Majority - Per Curiam
Yes. An alien who demonstrates a probability of irreparable harm and a substantial case on the merits that tips the balance of hardships sharply in his favor is entitled to a stay of removal. This court clarifies its standard for stays of removal in light of the Supreme Court's decision in Nken v. Holder, which overruled the prior, more lenient standard from Abbassi v. INS. Nken requires a petitioner to show that irreparable harm is 'probable,' not merely a 'possibility.' Once that higher threshold is met, the court continues to use a 'sliding scale' or 'continuum' approach to balance the remaining factors: (1) likelihood of success on the merits, (2) irreparable harm to the petitioner, (3) substantial injury to other parties, and (4) the public interest. Here, Leiva-Perez showed irreparable harm is probable, as he would likely face beatings upon return. He also presented a substantial case on the merits by raising serious questions about whether the BIA applied the correct legal standard for establishing a nexus between persecution and political opinion. Because the government made no argument about the public interest and the balance of hardships tips sharply in Leiva-Perez's favor, a stay is warranted.
Analysis:
This decision formally aligns the Ninth Circuit's standard for stays of removal with the Supreme Court's precedent in Nken v. Holder, making it more difficult for aliens to obtain such stays. By explicitly replacing the 'possibility of irreparable injury' prong from its prior Abbassi test with a 'probability' requirement, the court raised the initial barrier for relief. However, by retaining the 'sliding scale' approach for balancing the other factors, the court preserved significant judicial discretion, allowing a strong showing of hardship to compensate for a less certain, though still substantial, case on the merits. This clarified framework provides a definitive two-part test for future immigration cases in the Ninth Circuit.
