Removal Stays Are Provisional: Petitioners Must Continuously Prove All Nken Factors, Including Jurisdiction and Procedural Viability

I. Introduction

This precedential Third Circuit opinion does not decide the underlying merits of Jose Arcenio Aristy-Rosa’s latest effort to avoid removal. Instead, it addresses two procedural interventions that often determine whether removal litigation has real-world consequences: (1) whether a previously-entered stay of removal should remain in place while the petition for review proceeds, and (2) whether the court should pause (hold in abeyance) the petition to await a late-filed state-court collateral attack on the petitioner’s criminal conviction.

Aristy-Rosa has lived in the United States for nearly 30 years and has been under a final removal order since 2011, stemming largely from a 1997 New York narcotics guilty plea. This petition for review represents his fourth attempt to undo the removal order, following prior litigation noted in Aristy-Rosa v. AG, 994 F.3d 112 (3d Cir. 2021). His current theories rely heavily on United States v. Minter, 80 F.4th 406 (2d Cir. 2023), which he frames as a change in law undermining removability. The Third Circuit reserves that merits question for a separate forthcoming opinion; here it focuses on the propriety of interim relief and docket-management requests.

II. Summary of the Opinion

The court vacates the stay of removal “effective immediately,” holding the present record no longer supports continuing such an “extraordinary remedy.” Applying Nken v. Holder, 556 U.S. 418 (2009), the court concludes the petitioner fails on all four stay factors:

• Likelihood of success: Petitioner did not grapple with jurisdictional limits (especially as to sua sponte reopening) or multiple procedural obstacles to statutory reconsideration/reopening (time and number bars, unsettled equitable tolling questions, and diligence).
• Irreparable harm: Claimed harms were speculative, unsupported by evidence, and undermined by record facts; removal is not “categorically irreparable” under Nken.
• Harm to government / public interest: These merge under Nken, and both favored prompt execution and finality, particularly given perceived process abuse and prolonged delay.

The court also explains its earlier denial of petitioner’s motion to hold the case in abeyance pending a new state collateral attack on the 1997 conviction. It finds the timing and posture suggested strategic delay, and further emphasizes that state-court post-conviction maneuvers do not automatically alter federal immigration consequences. In particular, relying on Matter of Thomas & Thompson, 27 I. & N. Dec. 674 (AG 2019), and aligning with Vasquez v. Garland, 80 F.4th 422 (2d Cir. 2023), the court endorses the principle that vacaturs/expunctions affect removability only when grounded in a procedural or substantive defect in the underlying criminal proceedings—not when motivated by avoiding immigration consequences.

III. Analysis

A. Precedents Cited and Their Role

1. The stay framework and judicial restraint

The opinion situates removal stays within a broader tradition of restraint and separation-of-powers sensitivity:

• Nken v. Holder, 556 U.S. 418 (2009) supplies the controlling four-factor test and the propositions that (i) the first two factors (likelihood of success and irreparable harm) are “most critical,” (ii) removal is not “categorically irreparable,” and (iii) government/public interest merge when the government is the opposing party.
• Douglas v. Ashcroft, 374 F.3d 230 (3d Cir. 2004) is cited as Third Circuit authority applying the stay standard in the removal setting.
• Del. State Sportsmen's Ass'n, Inc. v. Del. Dep't of Safety & Homeland Sec., 108 F.4th 194 (3d Cir. 2024) is used for two related points: extraordinary relief should not become routine, and courts may reassess (and revise) initial interim assessments as the record and argument develop.
• Porter v. Pa. Dep't of Corr., 974 F.3d 431 (3d Cir. 2020) (Porter, J., concurring in part and dissenting in part) underscores that a stay is not a “vague” pause but a meaningful intervention with real consequences.
• Qatanani v. AG, 144 F.4th 485 (3d Cir. 2025) (Matey, J., dissenting) contributes the theme that judicial review of agency action is a “sensitive business deserving deference.”
• United States v. Morgan, 313 U.S. 409 (1941) and McLeod v. INS, 802 F.2d 89 (3d Cir. 1986) support respect for administrative integrity and a presumption of regularity in agency action.
• Trump v. Slaughter, 609 U.S. ----, 2026 WL 1855612 (2026) is invoked for the broader constitutional motif: courts should not “allow intrusions” on Article II any more than on Articles I or III.

2. Likelihood of success includes jurisdiction and procedural viability

A core operational holding is that likelihood of success for interim relief is not confined to the substantive merits; it includes jurisdiction and threshold procedural barriers:

• Holland v. Rosen, 895 F.3d 272 (3d Cir. 2018) supplies the Third Circuit’s calibration: “significantly better than negligible but not necessarily more likely than not.”
• Catney v. INS, 178 F.3d 190 (3d Cir. 1999) is used to require petitioners to address the court’s jurisdiction when seeking relief.
• Mullin v. Doe, 609 U.S. ----, 2026 WL 1825840 (2026) (plurality opinion) supports considering both jurisdictional likelihood and merits likelihood when deciding interim relief.
• Flores v. Barr, 977 F.3d 742 (9th Cir. 2020) and Lim v. Ashcroft, 375 F.3d 1011 (10th Cir. 2004) reinforce that a stay should be denied (or vacated) if jurisdiction likely is absent.
• Pllumi v. AG, 642 F.3d 155 (3d Cir. 2011) supplies the jurisdictional roadblock to review of the BIA’s denial of sua sponte reopening—one the petitioner did not even attempt to overcome.
• Mata v. Lynch, 576 U.S. 143 (2015) supports more secure jurisdictional footing over certain statutory reopening/reconsideration denials, but does not cure time/number bars or tolling deficiencies.

3. Time bars, number bars, tolling, and diligence

The court emphasizes that interim relief cannot rest on a single promising merits issue when multiple independent procedural barriers exist:

• Luntungan v. AG, 449 F.3d 551 (3d Cir. 2006) is used to highlight constraints on multiple motions to reopen and the significance of number limits.
• Mahmood v. Gonzales, 427 F.3d 248 (3d Cir. 2005) supplies the diligence principle: unexplained gaps in pursuit of relief undermine equitable tolling.
• Herrera-Juarez v. Blanche, 2026 WL 1147182 (4th Cir. 2026) (Quattlebaum, J., dissenting), Lopez-Sorto v. Garland, 103 F.4th 242 (4th Cir. 2024), and Velasquez-Samayoa v. Garland, 49 F.4th 1149 (9th Cir. 2022) are marshaled for a “multiplicative” conception of likelihood of success: where relief depends on several sequential propositions, overall likelihood declines with each unproven link.

4. Irreparable harm and the “return directive” arguments

• Curry v. Baker, 479 U.S. 1301 (1986) (Powell, J., in chambers) and Blake v. AG, 945 F.3d 1175 (11th Cir. 2019) support the point that irreparable harm alone is insufficient, and speculative harms do not satisfy the standard.
• Sarkisov v. Bondi, 138 F.4th 976 (6th Cir. 2025) and Sarr v. Garland, 50 F.4th 326 (2d Cir. 2022) bolster the continued vitality of Nken on the proposition that removed petitioners can continue litigating and, if they prevail, can receive effective relief through facilitated return and restoration of status.

5. Public interest, finality, and executive prerogatives

• Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002) frames the public interest in prompt closure of litigation consistent with fairness.
• Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) supplies the characterization of removals as ending “an ongoing violation of United States law.”
• Villatoro-Ochoa v. Lynch, 844 F.3d 993 (8th Cir. 2017) reinforces the “heightened” governmental interest in finality in removal proceedings.
• Abbott v. Perez, 585 U.S. 579 (2018), Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers), and Kingdom v. Trump, 2026 WL 1905418 (D.C. Cir. 2026) are used to conceptualize governmental irreparable harm when courts improperly prevent enforcement of duly enacted policy.
• United States v. Flores-Montano, 541 U.S. 149 (2004) and Harisiades v. Shaughnessy, 342 U.S. 580 (1952) are cited to emphasize border control and immigration policy as core political-branch functions intertwined with foreign relations and national sovereignty.

6. Abeyance, collateral attacks, and immigration consequences of vacaturs

• People v. Aristy, 979 N.Y.S.2d 634 (N.Y. App. Div. 2014) is cited to note that New York courts previously rejected ineffective-assistance arguments—undercutting the claimed basis for the new collateral attack.
• Aristy-Rosa v. AG, 994 F.3d 112 (3d Cir. 2021) is quoted for the point that New York courts “do[] not have the authority to make immigration-law determinations.”
• Vasquez v. Garland, 80 F.4th 422 (2d Cir. 2023) is used for the principle that state expunctions do not “bend” federal immigration consequences absent a vacatur that calls guilt into question.
• Matter of Thomas & Thompson, 27 I. & N. Dec. 674 (AG 2019) supplies the rule the panel expressly adopts: a state-court order has “legal effect for immigration purposes” only when based on a procedural or substantive defect, not on reasons “unrelated to the merits” such as avoiding immigration consequences.

B. The Court’s Legal Reasoning

1. Stays of removal are extraordinary intrusions and must be justified continuously

The panel’s first move is structural: it reframes a removal stay not as a routine case-management tool but as an “intrusion into the ordinary processes of administration and judicial review” (from Nken v. Holder). That framing does doctrinal work: it justifies placing the burden squarely on the petitioner and legitimizes vacating an already-entered stay when later proceedings reveal a weaker case than initially perceived.

Relying on Del. State Sportsmen's Ass'n, Inc. v. Del. Dep't of Safety & Homeland Sec., the court explains that interim views are provisional; judges may—indeed should—update their assessment after supplemental briefing and oral argument.

2. Likelihood of success demands engagement with every independent “gate” to relief

The opinion’s most practically important reasoning is its insistence that stay applicants must address all independent obstacles, including jurisdiction and procedural limits on the underlying motions before the BIA. Two applications are central:

• Sua sponte reopening: Petitioner did not argue the Third Circuit had jurisdiction to review the BIA’s denial. The court indicates any such argument would collide with Pllumi v. AG, so petitioner’s failure is dispositive for that theory at the stay stage.
• Statutory reopening/reconsideration: Even if Mata v. Lynch supports jurisdiction, petitioner failed to confront time and number bars, the unsettled question whether equitable tolling applies to those bars, and the diligence requirement under Mahmood v. Gonzales.

The panel then articulates a probabilistic logic: where relief requires multiple sequential propositions (e.g., tolling applies; diligence shown; change in law is a basis; out-of-circuit authority is adopted; the new rule extends to immigration; etc.), overall likelihood is the product of each step’s likelihood. This is used to deny that a potentially interesting Minter-based merits issue can justify a stay when the petitioner ignored multiple independent threshold problems.

3. Irreparable harm must be evidence-based and non-speculative

The court applies Nken to reject the idea that removal alone is always irreparable. It treats petitioner’s fear of arrest/removal at a scheduled DHS meeting as speculation rather than proof of imminent injury. It also discounts generic claims of family hardship where the brief is unsworn and unsupported, and where record facts do not affirmatively support the claimed equities.

On the “facilitated return” argument, the court treats the cited ICE Directive 11061.1 letter as incapable of displacing Nken’s holding that effective post-removal relief can exist through continued litigation and facilitated return. By citing Sarkisov v. Bondi and Sarr v. Garland, the panel reinforces that lower courts continue to rely on Nken notwithstanding the Executive Branch’s subsequent procedural clarifications.

4. Public interest and government harm: finality, prompt execution, and separation of powers

The panel merges the public interest and government harm factors (as Nken instructs) and finds both favor vacatur. It emphasizes:

• a baseline public interest in prompt execution of removal orders;
• a public interest in concluding litigation fairly but efficiently (Sevoian v. Ashcroft);
• heightened public interest in prompt removal where the alien “substantially prolonged his stay by abusing the processes provided to him” (quoting Nken).

The court relies on petitioner’s history—voluntary-departure assurances followed by non-departure, failure to update address after moving, and repetitive challenges spanning 15 years—to conclude the equities favor enforcement and finality.

The panel also articulates a separation-of-powers rationale: unnecessary stays improperly constrain the Executive Branch’s ability to execute immigration policy (citing Abbott v. Perez, Maryland v. King, and Kingdom v. Trump), and implicate sovereignty and political-branch primacy in immigration (United States v. Flores-Montano; Harisiades v. Shaughnessy).

5. Abeyance denial: late collateral attacks and the “merits-based vacatur” requirement

The abeyance discussion introduces a second operational rule: last-minute state collateral attacks—especially those that appear designed to re-plead into an immigration-friendlier offense—are not a sufficient basis to halt a federal petition for review absent a showing that the collateral relief is tied to a genuine procedural or substantive defect in the conviction.

The panel flags indicia of delay (filing after briefing, near argument, with a prosecutor’s apparent willingness to accept an immigration-relevant plea), and then addresses legal irrelevance: the removal statute turns on whether the petitioner was “convicted,” a term defined in 8 U.S.C. § 1101(48), and removability here is for a controlled-substance conviction under 8 U.S.C. § 1227(a)(2)(B)(i).

Crucially, the court explicitly adopts the interpretive line from Matter of Thomas & Thompson—that only defect-based vacaturs have immigration effect—and states, “We agree.” That marks a clear Third Circuit endorsement (in this opinion’s context) of the Attorney General’s merits/defect limitation, consistent with Vasquez v. Garland.

C. Impact on Future Cases

1. A precedential roadmap for vacating previously-granted removal stays

This opinion’s immediate doctrinal contribution is institutional: it normalizes (and provides a justification for) revisiting and vacating stays as the case develops, particularly after supplemental briefing and oral argument. Litigants should expect the Third Circuit to treat stays as contingent, not “set-and-forget.”

2. Heightened expectations for stay motions: jurisdiction + procedure + evidence

Practically, the decision raises the bar for stay requests in the Third Circuit by insisting that petitioners must:

• squarely address jurisdiction (especially where Pllumi v. AG may foreclose review);
• engage time and number bars, and explain why equitable tolling applies and is satisfied;
• provide evidentiary support for irreparable harm, not merely attorney argument;
• grapple with the public interest in finality, especially where the record reflects repeated challenges and delay.

3. Collateral attacks and abeyance motions: skepticism of immigration-motivated vacaturs

On abeyance, the opinion signals skepticism toward late-filed state collateral attacks that appear coordinated to delay removal or to engineer immigration outcomes. The panel’s express agreement with Matter of Thomas & Thompson strengthens the position that only defect-based post-conviction relief meaningfully changes immigration consequences—making it harder to justify federal delays based on negotiated re-pleas untethered to underlying criminal defects.

4. Potential downstream effects

• More government motions to vacate stays: The decision provides language and structure for DHS/DOJ to seek vacatur when petitioners fail to maintain the Nken showing over time.
• Front-loading of procedural arguments: Petitioners’ counsel will likely need to brief tolling, diligence, and jurisdictional issues earlier and more thoroughly, even when the “headline” argument is a purported change in law like United States v. Minter.
• Reduced reliance on generic hardship narratives: The court’s insistence on evidence (and its willingness to cite adverse record facts) discourages stay motions built on generalized family separation assertions without affidavits or documentation.

IV. Complex Concepts Simplified

• Stay of removal: A temporary court order preventing DHS from removing a noncitizen while a petition for review is pending. It is extraordinary because it halts an executive enforcement action.
• The Nken factors: (1) likelihood of success, (2) irreparable harm, (3) harm to others, and (4) public interest. In removal cases, (3) and (4) usually merge because the government represents public interests.
• Statutory reconsideration vs. statutory reopening: Reconsideration generally argues the agency made a legal or factual error in its decision; reopening generally seeks to present new facts/evidence or otherwise revisit the case. Both are constrained by strict statutory deadlines and limits on the number of motions (8 U.S.C. § 1229a(c)(6), (7)).
• Sua sponte reopening: Discretionary reopening “on the agency’s own motion” (8 C.F.R. § 1003.2(a)). Courts often lack jurisdiction to review denials of such purely discretionary relief (here, the court points to Pllumi v. AG).
• Equitable tolling: A doctrine that can excuse missing a deadline if extraordinary circumstances prevented timely filing and the party acted diligently. The court stresses diligence and notes the Third Circuit has not necessarily recognized tolling for some of the relevant statutory limits.
• Facilitated return: Even if someone is removed while their case is pending, they may keep litigating; if they later win, the government can help return them. Under Nken v. Holder, that possibility weakens claims that removal is always irreparable.
• Defect-based vacatur (post-conviction relief): Under Matter of Thomas & Thompson, a state-court order vacating a conviction affects immigration only if it rests on a procedural or substantive defect (e.g., constitutional error), not if it is entered to avoid immigration consequences.

V. Conclusion

The Third Circuit’s precedential opinion establishes a clear procedural message in removal litigation: a stay of removal is an extraordinary, separation-of-powers-sensitive remedy that must be continuously justified under Nken v. Holder. Petitioners must show more than an interesting merits theory; they must confront jurisdiction, statutory time/number bars, tolling doctrine, and diligence, and they must support irreparable harm with evidence rather than speculation.

The opinion also signals that last-minute collateral attacks and abeyance requests will be viewed skeptically when they appear designed to delay removal, and it expressly aligns the court with Matter of Thomas & Thompson’s rule that only defect-based conviction vacaturs carry immigration consequences. In sum, the decision strengthens finality, tightens interim-relief practice, and underscores judicial restraint in the face of executive removal authority—while leaving the petitioner’s United States v. Minter-based merits arguments for another day.