Motion for stay of removal pending appeal; Requirements for a stay pending appeal under Nken v Holder; Likelihood of success on the merits; Irreparable harm

The court denied petitioner-Sarkisov’s motion for a stay of removal pending appeal, holding that he did not show that he was entitled to a stay under Nken. Sarkisov, who is illegally present in the United States, was found subject to deportation. His later motion to reopen his case was denied and his appeal to the Board of Immigration Appeals was rejected. He appealed the Board’s decision to the court in 2023 and asked for a stay of the deportation order for the duration of the appeal. After a pause for negotiations between the parties, the litigation resumed and the court now considered his motion for a stay. It reviewed the Nken test that governs an alien’s request for a stay of removal pending appeal and noted that Sarkisov’s motion failed to “say anything at all about the merits. So he can’t establish” the first factor. In addition, he did not offer “a single reason why he would suffer irreparable harm without a stay. He offers only the conclusory assertion that ‘I will suffer irreparable harm if I am removed.’ . . . But removal from the United States ‘is not categorically irreparable.’” The court held that his “failure to satisfy these two ‘most critical’ stay factors—likelihood of success on the merits and irreparable harm—dooms his motion.” Thus, it denied it even though the government had not opposed the motion. It noted that “the government’s non-opposition can’t relieve Sarkisov of his burden to satisfy the Nken test” and that the government cannot “effectively compel a court to enter equitable relief by failing to oppose a motion that seeks such relief.”