An Administrative Stay While the Motion Is Read

Courts of appeals routinely enter an order that does very little and matters enormously. It says, in substance, that removal is suspended until a stated hour or until further order, so that the court can read the emergency motion in front of it. It resolves nothing. It is also, on a filing made at nine in the evening against a flight scheduled for the morning, the only realistic objective.

A short order that preserves the question

The holding order exists because emergency motions arrive faster than they can be assessed. A stay pending review requires a court to weigh four factors on a record it has never seen, against a response the government has not yet filed. That takes time the applicant does not have. The temporary order separates the two problems: it freezes the situation so that the assessment can happen at a pace that permits actual assessment.

Because it decides nothing, it demands almost nothing. A court entering one is not finding a likelihood of success, is not weighing irreparable harm, and is not committing itself in any direction. Many such orders say precisely that in a single line, and the line is not boilerplate. It is a warning against reading the order as a preliminary ruling, which is exactly how it is often reported to a family waiting for news.

The instrument is not unique to immigration practice. Appellate courts have long used short orders to preserve their own jurisdiction while they consider whether to exercise it, and the general statutory authority for writs necessary or appropriate in aid of jurisdiction sits behind the practice. What makes the immigration version distinctive is the irreversibility on the other side. In most appeals the thing being preserved is an asset or a status quo that can be restored; here it is the physical presence of the person whose case the court is being asked to hear.

Where the request belongs in the papers

The request goes at the top. A motion that asks for a stay pending review in its prayer for relief, and mentions a temporary order in a final paragraph on the eighth page, has buried the only thing the court can act on tonight. The opening lines should state the removal is scheduled, state the hour, and ask for an order suspending it until the court can rule on the motion that follows.

Duration should be proposed rather than left open. A request for an order lasting until a stated hour, or for a stated number of days, is easier to grant than a request for an indefinite freeze, because the cost of granting it is visible on the face of the request. Courts that would hesitate over an unlimited suspension will often enter a short one without difficulty.

Motion practice in the courts of appeals allows a single judge to act on some requests, which matters when a panel cannot be assembled. The precise allocation between single judge and panel varies, and the local rules of the circuit govern it. Confirming that allocation is part of the first call to the clerk's office outside business hours, and it is a question a clerk will usually answer directly.

Two drafting habits make the request easy to grant. The first is to state the relief in a form the court can adopt without editing, which usually means attaching a proposed order of three or four lines. The second is to separate the temporary request from the substantive one visually, so that a judge reading at speed can see that granting the first commits the court to nothing about the second. Motions that blend the two invite a single denial covering both.

What the order leaves untouched

A holding order suspends removal. It does not release anyone from custody, does not reopen the proceedings, and does not extend any deadline running elsewhere. The clock on reaching the court of appeals within the statutory period is unaffected by it, and so is the surrender date on any outstanding notice unless the order says otherwise in terms.

It also does not bind offices that are not before the court. Where a person is being held by one authority and removed by another, the order reaches the removal, and questions about the conditions or location of custody require a separate application in a different forum. That separation is the reason an emergency filing so often becomes two filings by the second day.

Using the interval

The days a holding order produces are the working days of the case. They are spent obtaining the declarations the stay motion needs, requesting the record from the agency, confirming the client's location, and drafting the merits argument that the motion only sketched. An interval used to wait for the ruling is an interval wasted, because the ruling will be made on whatever has been filed by the time it comes.

That work is difficult to do from a standing start at night, which is why the request is usually made by an attorney who can request an administrative hold and then keep drafting through the interval it produces rather than treating the order as the end of the emergency. The order is the beginning of the emergency; it merely makes the emergency survivable.

One further point deserves attention when the interval runs out. If the court has not ruled and the order is about to lapse, a renewed request is a separate filing and needs a reason: what has changed, what has been added to the record, and why a further short interval will produce a decidable motion. A renewal that simply repeats the first request tends to be read as an attempt to convert a holding order into the stay the motion was supposed to earn, which is not what the instrument is for.