In this immigration matter, the petitioners sought a stay of removal while their en banc case remained pending. The court had previously denied the stay motion, but after en banc briefing and oral argument it revisited that ruling. The order also directed supplemental briefing on whether Rodriguez-Zuniga v. Garland supports the Board of Immigration Appeals’ nexus analysis, whether Rodriguez-Zuniga should be overruled in whole or in part, and whether any overruling argument was preserved.

The en banc court stated that, in light of en banc briefing and oral argument, it was now apparent that the petitioners met the standard for a stay of removal under Nken v. Holder. On that basis, it vacated its prior order denying the stay and granted the opposed motion to stay removal pending disposition of the en banc case. The order itself did not further explain the merits analysis, but it identified the asylum and withholding nexus issue and possible reconsideration of Rodriguez-Zuniga as subjects for supplemental briefing.

In light of en banc briefing and oral argument, it is now apparent that Petitioners meet the standard for a stay of removal under Nken v. Holder, 556 U.S. 418 (2009).

Order

I would not vacate our earlier denial of the motion seeking a stay of removal because the petitioners still have not made a “strong showing that [they are] likely to succeed on the merits.”

Kenneth K. Lee; Eric C. Tung

The petitioners cannot be removed while the en banc case remains pending, and the parties and amici may file supplemental briefing on the identified Rodriguez-Zuniga questions.