The U.S. Court of Appeals for the Ninth Circuit today denied a motion to stay the removal of a Peruvian family of four, including two minor children, effectively allowing their deportation to proceed.
The family, identified as Maricruz Marisol Rojas-Espinoza, her domestic partner Robert Salvador-Gomez, and their children David Angel Salvador-Rojas and Korina Salvador-Rojas, had sought a stay pending judicial review of a Board of Immigration Appeals (BIA) decision ordering their removal to Peru.
The family, who are citizens of Peru, unlawfully entered the United States near Sasabe, Arizona, in early January 2023 and conceded removability under the Immigration and Nationality Act.
No Strong Likelihood of Success on Merits
In a Per Curiam order in the case of Rojas-Espinoza v. Bondi, the three-judge panel found that the petitioners failed to meet the demanding legal standard required for a stay of removal, which is governed by a four-factor test established by the Supreme Court in Nken v. Holder.
The court determined that the petitioners’ motion for a stay made only “conclusory” assertions about their likelihood of success on the merits, stating they did not establish a “strong likelihood of success on the merits” or even a “substantial case on the merits.”
The BIA had upheld the Immigration Judge’s (IJ) decision to deny the family’s applications for asylum, withholding of removal, and relief under the Convention Against Torture. Key to the BIA’s ruling was the conclusion that Rojas-Espinoza failed to establish the requisite connection between her alleged persecution and a protected ground under the INA.
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Irreparable Harm Not Established
Regarding the factor of irreparable injury, the court stressed that the “burden of removal alone cannot constitute the requisite irreparable injury.” Petitioners must show a harm specific to their case that would inflict irreparable injury.
The court found the petitioners’ showing on irreparable harm insufficient, noting that since leaving Peru, “no threats have been received in the United States,” and the family’s “family in Peru has not been threatened.” The judges concluded that the petitioners “have not shown that they are likely to face such harm” if removed.
Public Interest and Procedural Abuse
The court also weighed the public interest, which “weighs decidedly against a stay in this case.” The opinion highlighted the public interest in the “prompt execution of removal orders,” particularly where an alien has “substantially prolonged his stay by abusing the processes provided to him.”
The panel was critical of the court’s internal processes which resulted in the petitioners’ barebones stay motion securing an automatic administrative stay that remained in effect for ten months—seven months after the government filed its opposition. The court stated this practice was “manifestly unlawful,” as an administrative stay is meant to be a short prelude to a ruling on the motion itself.
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In a strong instruction regarding future practice, the Ninth Circuit ruled that fully briefed, opposed stay motions must now be presented to the next available motions panel for a decision, rather than being held until the merits panel is assigned.
Because the petitioners failed to make an adequate showing on the likelihood of success or irreparable injury, the court denied the motion to stay removal and immediately lifted the temporary administrative stay. The family’s petition for review on the merits remains calendared for argument on December 2, 2025.
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