Thursday, June 25, 2026
Page 6
VanDyke Calls for End to ‘Automatic Stays’ of Deportation
By a MetNews Staff Writer
Circuit Judge Lawrence VanDyke yesterday penned a concurring opinion to a decision foreclosing an immigrant’s request for relief from deportation due to exceptional hardship, saying that the petitioner’s having “received a free, entirely undeserved stay of his removal” highlights the need to end the Ninth U.S. Circuit Court of Appeals’ “practice of handing out administrative stays of removal to every immigration petitioner who asks for one.”
Yesterday’s concurrence is the latest in a series of critiques of the court’s practice under which the clerk’s office holds unresolved stay motions until briefing is completed and the case is assigned to a merits panel for final disposition.
The procedure was implemented by way of the Ninth Circuit’s General Order 6.4(c), which was approved by the full court in 2002.
Quoting from the 2009 U.S. Supreme Court decision in Nken v. Holder, VanDyke said:
“As I and others have written elsewhere, this practice is obviously unlawful. It violates the Supreme Court’s command that stays of removal are ‘not a matter of right,’ and that courts must not ‘reflexively hold[] a final order in abeyance pending review.’ ”
Calling the practice a “head-I-win, tails-you-lose” system, he argued that “our court’s automatic-stay practice places the government in an inescapable double-bind as it attempts to execute lawful removal orders in this circuit.” VanDyke explained:
“Every petitioner who asks for a stay gets one, and if the government does not oppose it, it’s deemed to consent to the stay of removal….But if the government does extra work and opposes the stay and we ultimately agree to deny it—usually too late to make any practical difference—the government technically ‘wins’ and thus has no effective means of challenging our unlawful practice.”
Rojas-Espinoza Matter
The jurist pointed to the en banc order issued earlier this month in Rojas-Espinoza v. Blanche. In that case, a three-judge panel, comprised of Circuit Judges Ryan D. Nelson, Daniel P. Collins, and VanDyke, denied a motion for a stay of a removal order in October 2025 and declared that the court’s practice of implementing prolonged administrative stays without judicial consideration is unlawful.
After a majority of non-recused active judges granted a request for rehearing last February, an en banc panel similarly denied the request for a stay of removal in a short, three-sentence order. Chief Judge Mary H. Murguia wrote a statement accompanying the March decree, pointing out that the lawfulness of the court’s practice was not an issue raised by the parties and saying:
“The issue the panel raised—whether the court’s method of handling stay motions in immigration cases is lawful—is one the court can and will address through its established internal procedures governing its administrative and policymaking responsibilities.
“At any time, members of the court are free to take concerns regarding court procedures to the Court Executive Committee.”
On June 9, the en banc court reversed course, vacating the prior order denying the motion to stay and declaring that, “[i]n light of en banc briefing and oral argument, it is now apparent that Petitioners meet the standard for a stay of removal” under Nken.
Murguia’s Suggestion
Addressing Murguia’s suggestion that the automatic stay process will be addressed internally, VanDyke wrote:
“Our court’s answer to all this? ‘Don’t worry! We’ve created a committee to look into it.’…Reasonable people are often generally skeptical about committees’ ability to get things done well and in a timely fashion, and for good reason. But committees do sometimes turn out something useful. So it’s entirely possible that the stay committee here could do the right thing: it could permanently and publicly replace our current unlawful practice with one that meets the requirements of Nken.”
Continuing, he remarked:
“If the committee were to find a way to send fully briefed stay motions promptly to the first available motions panel—without changing any court rules—then it would seem that we can (and should) fix our unlawful stay procedures, notwithstanding the prior handwringing that we couldn’t and shouldn’t. This would be a welcome outcome. But it would also raise two obvious questions. First, why weren’t we doing this all along? And second, what was the point in calling Rojas-Espinoza en banc and vacating the panel’s decision, only to end up in the same place?”
Adding, in a footnote, that “I’d be remiss not to mention that the committee process is ironic given some court members’ accusation that the panel in Rojas-Espinoza addressed our court’s unlawful automatic-stay practice outside ‘the adversarial process,’ ” he commented that “[n]ow, our court’s plainly unlawful practice will be reviewed far from the public eye, outside of litigation, entombed safely within the impenetrable bureaucracy of a committee.”
No Attention
Commenting that the late entrepreneur “Charlie Munger famously quipped that ‘only when the tide goes out do you discover who’s swimming naked,’ ” he said:
“Before Rojas-Espinoza, our court’s unlawful automatic-grant and deferred-review practice received virtually no attention despite its obvious illegality and detrimental effects on this country’s immigration system. But now, thanks to the Rojas-Espinoza saga, the tide has gone out on our court’s indefensible practice. And as much as we might dislike it, our court was caught swimming with our bathing suits on the shore.”
He added:
“We should come clean and publicly and irrevocably correct our mistake. After all, one of the core parts of our job is to call out violations of the law. If we can’t openly acknowledge and correct our own legal faux pas, we risk losing credibility when we tell other branches of the federal government to correct theirs.”
Exceptional Hardship
VanDyke’s concurrence accompanies a memorandum opinion in which the court denied a petition for review, filed by Juan Rene Valadez Prado, of a Board of Immigration Appeals (“BIA”) decision dismissing an appeal from an order by an immigration judge (“IJ”), which declared that the petitioner had not demonstrated exceptional hardship due to removal based on his wife’s anxiety disorder and son’s health condition.
Circuit Judge Jacqueline Nguyen and District Court Judge Robert Steven Huie of the Southern District of California, sitting by designation, also signed the memorandum decision, saying that “substantial evidence supports the agency’s determination that Petitioner’s family will not suffer ‘substantially more’ harm than what normally results from the removal of family members.”
Commenting in his concurrence about the facts underlying Prado’s immigration proceedings, VanDyke wrote:
“More than 10 years ago, Juan Rene Valadez Prado—a native and citizen of Mexico who resided unlawfully for an unknown time in the United States—was arrested for assault, and the government placed him in removal proceedings. The IJ denied Prado’s application for cancellation of removal, and the BIA dismissed his appeal. Prado then filed a meritless petition for review followed by an even more threadbare motion for stay of removal. But Prado was in the Ninth Circuit, so he naturally received a free, entirely undeserved stay of his removal that began in April 2025 and ended less than a month ago.”
The case is Valadez Prado v. Blanche, 25-2709.
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