Judge Tung Balks at Order Putting a Hold on a Deportation

Thursday, June 11, 2026

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Judge Tung Balks at Order Putting a Hold on a Deportation

Criticizes Ninth Circuit’s Flip-Flopping, Says Majority Is Snubbing Dictates of U.S. Supreme Court Opinion

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals’s newest member, Eric Tung, who assumed office on Nov. 7, has evidenced a lack of propensity for meekness, asserting, in connection with an immigration matter, vacillation on the part of colleagues and their failure to admit error.

His dissent, aside from addressing claims of the petitioners, continues a discussion that has taken on prominence in the case as to whether deportations are being unlawfully delayed for protracted periods by stays issued by court clerks, absent judicial nods, with Tung denouncing the practice, as he has previously.

Tung was one of 11 members of an en banc panel to act Tuesday on a motion by an illegal immigrant, Maricruz Marisol Rojas-Espinoza, her domestic partner, and their two children for an order staying deportation pending resolution of their challenge to a decision of the Board of Immigration Appeals (“BIA”) upholding an order by an immigration judge that they be sent back to their native Peru.

The petitioners are seeking relief from deportation under the Convention Against Torture based on a physical attack in Peru on Rojas-Espinoza’s brother in February 2021 and later on her, in December, 2022, apparently as a result of a dispute among members of a labor union. It is undisputed that the petitioners entered the U.S. unlawfully in January 2023; deportation proceedings were instituted the following May.

Acting to block immediate deportation were Chief Judge Mary H. Murguia and Judges Kim McLane Wardlaw, Ronald M. Gould, Johnnie B. Rawlinson, Morgan B. Christen, Michelle T. Friedland, and Holly A. Thomas, all appointees of Democratic presidents, joined by Judge Eric D. Miller, chosen for a judgeship by Republican President Donald Trump. Wardlaw authored a concurring opinion; Judge Kenneth K. Lee, joined by Judge Bridget S. Bade, wrote a short dissent; and Tung stood alone in criticizing the court’s handling of the case.

Lee, Bade, and Tung are Trump appointees. Tung, a Los Angeles native, was an attorney with Jones Day at the time of his presidential selection for a judgeship.

2025 Decision

After the BIA affirmed the deportation order and review was sought, the Ninth Circuit’s Clerk’s Office put in place an administrative stay. Ten months later, a three-judge Ninth Circuit panel, comprised of Judges Ryan D. Nelson, Daniel P. Collins, and Lawrence VanDyke—all Trump appointees—on Oct. 24, 2025, denied a motion for a stay, saying the requisites were not meant, and observed:

“The public interest in putting a prompt end to Petitioners’ misuse of our stay processes is not in any way mitigated by the fact that this court itself erred in creating the process that Petitioners succeeded in using to obtain a 10-month ‘temporary’ administrative stay of their removal. On the contrary, the ultra vires nature of that process weighs heavily in favor of denying Petitioners any further stay of their removal.”

A majority of non-recused active judges granted a rehearing en banc last Feb. 20 (over a spirited dissent by VanDyke). But on March 10, the en banc panel denied the requested stay in three-sentence order.

That order was accompanied by a statement by Tung in which he complained:

“[W]ith respect to the unlawfulness of this court’s practice of granting automatic stays, which the panel called out, the en banc panel is deafeningly silent. On a matter so consequential, and as judges whose job is to say what the law is, the en banc panel should have offered some explanation. Instead, we hear nothing.”

Murguia took issue with Tung’s statement, remarking:

“Judge Tung’s statement omits a crucial point: the lawfulness of the court’s stay practice—carried out under a full-court-approved General Order that has been publicly in place since 2002—is not an issue the parties raised to the three-judge panel and is not an issue before this en banc court.”

Tung’s Dissent

In Tuesday’s dissent from the turn-about order granting a stay, Tung commented:

“[N]ow, apparently changing its mind, the en banc panel has decided to vacate its earlier denial and to re-grant the stay even when Petitioners have not asked for such relief. The en banc panel issues its decision, again, with only boilerplate reasoning.

“This is not a good look. The rule of law should not swivel like a weathervane. The about-face shows that the en banc panel did not actually engage with the merits when it voted quickly to deny the stay, even though the en banc panel had the full merits briefing before it when it issued the denial: and it is (again) confirmation that the en banc panel only denied the stay to sweep the issue of our problematic stay practice under the rug.”

As to that practice, he said:

“Several colleagues and I have pointed out the manifest unlawfulness of such a practice: what were supposed to be temporary ‘administrative’ stays have turned out to be anything but that. Just the opposite, the filing of frivolous stay motions in this circuit has become a gateway for applicants to enter and stay in the United States for prolonged periods of time (often years), notwithstanding their ineligibility for remaining here.”

Supreme Court Decision

The jurist drew attention to the U.S. Supreme Court’s 2009 7-2 decision in Nken v. Holder, holding that an alien seeking a stay of a deportation order must show that chances of prevailing are “better than negligible” and that there is a “possibility of irreparable injury” if the person is returned home. If those burdens are met, the opinion says, what must take place is “assessing the harm to the opposing party and weighing the public interest.”

Tung maintained:

“By its own implicit admission then, this court violated Nken twice over in a single case—first, when it automatically granted a prolonged stay without examining the merits, and again, when it hastily denied the stay to mask our unlawful stay practice (a denial that it now vacates). The moral of the story: running away from a problem often leads to another. We should have just admitted our mistake from the start.” Lee said in his dissent that he “would not vacate our earlier denial of the motion seeking a stay of removal because the petitioners still have not made” the strong showing required by Nken of a likelihood of prevailing on the merits.

Wardlaw’s Concurring Opinion

Wardlaw wrote:

“This case lays bare the dangers of denying motions to stay removal before the panel has had the opportunity to conduct an in-depth review of the record. As our decision to vacate our prior order denying Ms. Rojas’s motion makes clear, assessing a petitioner’s likelihood of succeeding on the merits is a time-consuming, fact-dependent, and highly variable exercise. It became clear only after a full review of the record and briefs, and following oral argument, that Ms. Rojas has raised substantial questions about the merits of the BIAs decision and has met her burden under Nken v. Holder….”

The judge, pointing to the Oct. 24, 2025 decision by a three-judge panel and Tung’s March 10 statement, opined:

“Under the process that Judge Tung and the original three-judge panel propose…, the Court would be asked to evaluate stay motions on the basis of no more than hastily prepared letter briefs and an incomplete record. We must not allow the adjudication of these motions to become an ‘idle ceremony’ whereby noncitizens with meritorious claims are allowed to be deported to a place where they may face persecution, torture, or death.”

In a footnote, Tung responded:

“Contrary to Judge Wardlaw’s suggestion, the en banc panel’s flip-flop—first in denying the stay and then re-granting it—reflects its own lack of care in assessing the merits (and its disregard of Nken). It does not justify the court’s unlawful practice of automatically granting prolonged stays of removal that can last years.”

2023 Opinion

The majority, in its order staying deportation, called for briefing on whether the Ninth Circuit’s 2023 opinion in Rodriguez-Zuniga v. Garland should be reexamined. There, VanDyke wrote that at the “heart” of the petitioner’s plea for relief from deportation “is her fear that, because she experienced an attempted robbery in her native country, she will be subject to persecution in the future,” declaring:

“But fear of generalized crime is not a sufficient basis for asylum or withholding of removal, nor do her other arguments show that she is entitled to relief.”

VanDyke was joined in the 2023 opinion by Circuit Judge Consuelo M. Callahan, nominated by President George W. Bush, a Republican. Dissenting was an appointee of Democratic President Bill Clinton, Senior Sixth Circuit Court of Appeals Judge Ronald Gilman, sitting by designation.

Tuesday’s opinions came in Rojas-Espinoza v. Blanche, 24-7536.