The opinion
U.S. COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 25-1490
JOSE ARCENIO ARISTY-ROSA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
_____________________________
On Petition for Review of the Board of Immigration Appeals
Immigration Judge John P. Ellington, No. A043-907-039
Before: BIBAS, PORTER, and BOVE, Circuit Judges
Argued Jan. 27, 2026; Decided Aug. 14, 2026
_____________________________
OPINION OF THE COURT
BOVE, Circuit Judge. Petitioner Jose Arcenio Aristy-
Rosa filed a Petition For Review challenging the BIA’s refusal
to revisit a final order of removal that was entered on consent
in 2011. Petitioner’s removal is stayed pending resolution of
the Petition. Our work is not complete. After soliciting the
parties’ views on the removal stay, however, we have
determined that the record does not merit continuing the stay.
Mindful of the ongoing harms that such stays impose on the
Executive Branch, and respectful of the impact of our
operations on coordinate Branches of this tripartite
government, we write precedentially to explain (I) our decision
to vacate the stay, and (II) our previous denial of Petitioner’s
motion to hold the proceedings in abeyance. See 3d Cir. IOP
5.2.
I.
Petitioner has been in the United States for almost 30
years. He has been subject to a final order of removal for about
half that time. The removal order rests largely on Petitioner’s
1997 guilty plea to a narcotics offense in New York State.
The Petition concerns Petitioner’s fourth attempt to
escape the removal order. See Aristy-Rosa v. AG, 994 F.3d 112,
117 (3d Cir. 2021).1 This time, Petitioner challenges the BIA’s
denial of his first motion for statutory reconsideration, his
second motion for statutory reopening, and his third motion for
so-called “sua sponte” reopening. See 8 U.S.C. § 1229a(c)(6),
(7); 8 C.F.R. § 1003.2(a). Petitioner’s arguments rely heavily
on United States v. Minter, 80 F.4th 406 (2d Cir. 2023), which
he characterizes as a change in law that undermines the
removal order. We will address that argument in a separate
opinion. Here, with no disrespect to the prior stay decision,
and mindful that we write from an advantageous perspective
that includes supplemental briefing and oral argument, we hold
that the current record does not merit continuing the stay of
removal.
Any analysis of a removal stay must begin with the
proposition that courts ought to tread lightly—on an ongoing
1
Unless otherwise indicated, case quotations omit all internal
citations, quotation marks, footnotes, alterations, and
subsequent history.
2
basis—when imposing this type of relief. Similar to
preliminary injunctions, “[t]his extraordinary remedy” should
not “become ordinary.” Del. State Sportsmen’s Ass’n, Inc. v.
Del. Dep’t of Safety & Homeland Sec., 108 F.4th 194, 201 (3d
Cir. 2024). “[A] stay is not a vague, legally meaningless pause
in a judicial proceeding.” Porter v. Pa. Dep’t of Corr., 974 F.3d
431, 454 (3d Cir. 2020) (Porter, J., concurring in part and
dissenting in part). By constitutional design, judicial review of
agency action is “sensitive business deserving deference.”
Qatanani v. AG, 144 F.4th 485, 505 (3d Cir. 2025) (Matey, J.,
dissenting).
Just as our decisions are entitled to inter-branch respect,
“the integrity of the administrative process must be equally
respected.” United States v. Morgan, 313 U.S. 409, 422
(1941). Actions by DHS and the Board are “entitled to a
presumption of regularity.” McLeod v. INS, 802 F.2d 89, 95
n.8 (3d Cir. 1986). A stay of removal is an “intrusion into the
ordinary processes of administration and judicial review.”
Nken v. Holder, 556 U.S. 418, 427 (2009); see also Trump v.
Slaughter, 609 U.S. ----, 2026 WL 1855612, at *21 (2026)
(“We do not allow intrusions on Article I nor on Article III. We
see no reason to allow intrusions on Article II either.”).
Because of the significance of such an intrusion, an
alien seeking a removal stay bears the burden of proving four
factors. See Nken, 556 U.S. at 426; Douglas v. Ashcroft, 374
F.3d 230, 233 (3d Cir. 2004). The first two factors are “the
most critical”: likelihood of success on the merits and
irreparable harm. Nken, 556 U.S. at 434. Irreparable harm is
not enough by itself. See Curry v. Baker, 479 U.S. 1301, 1302
(1986) (Powell, J., in chambers) (“It is no doubt true
that . . . the applicant here will suffer irreparable injury. This
fact alone is not sufficient to justify a stay . . . .”); Blake v. AG,
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945 F.3d 1175, 1178 (11th Cir. 2019). The third and fourth
factors are whether a stay would substantially injure other
interested parties and the impact of a stay on the public interest.
Nken, 556 U.S. at 426. These two factors merge because the
government is the opposing party. Id. at 435.
A stay is not forever. Circumstances change. So too do
our impressions of arguments and evidence as an appeal moves
forward. “[J]udges will not always stick with those
impressions—and the system trusts judges to update them as a
case proceeds.” Del. State Sportsmen’s Ass’n, 108 F.4th at
200. Thus, an alien is entitled to a removal stay only for as
long as he can demonstrate that the Executive Branch intrusion
is appropriate. In this case, during our review of the Petition,
we questioned whether Petitioner was still able to meet that
burden. The parties responded with supplemental briefing and
further addressed the issue at oral argument. Based on those
proceedings, we conclude that Petitioner cannot now meet his
burden on any of the four Nken factors.
A.
On the merits, Petitioner has to do more than suggest to
us that Minter raised thought-provoking questions. He has not
addressed the procedural challenges reflected in the Petition
For Review and his underlying motions to the BIA.
An alien seeking a stay of removal must make a
likelihood-of-success showing that is “significantly better than
negligible but not necessarily more likely than not.” Holland
v. Rosen, 895 F.3d 272, 286 (3d Cir. 2018). An alien must
address not only the substantive arguments for relief but also
our jurisdiction to consider them. See Catney v. INS, 178 F.3d
190, 196 & n.9 (3d Cir. 1999); see also Mullin v. Doe, 609 U.S.
4
----, 2026 WL 1825840, at *11 (2026) (plurality opinion) (“[I]n
evaluating the likelihood-of-success question for the purpose
of ruling on a request for interim relief, courts may consider
both the likelihood that they have jurisdiction and the
likelihood that the claim will succeed on the merits.”); Flores
v. Barr, 977 F.3d 742, 746 (9th Cir. 2020); Lim v. Ashcroft, 375
F.3d 1011, 1012 (10th Cir. 2004). A court must deny interim
relief—or vacate previously granted interim relief—if the court
determines that it likely lacks jurisdiction.
In response to our inquiry about the removal stay,
Petitioner failed to meet his merits burden with respect to sua
sponte reopening. He did not even suggest that we had
jurisdiction to review the BIA’s denial of the motion. Any such
argument would run headlong into our precedent. See Pllumi
v. AG, 642 F.3d 155, 159 (3d Cir. 2011).
Petitioner’s position on our jurisdiction to review
arguments relating to statutory reopening and reconsideration
is on firmer footing. See Mata v. Lynch, 576 U.S. 143, 147-48
(2015). But his statutory arguments faced several non-
jurisdictional obstacles. As to statutory reconsideration,
Petitioner did not address the time bar, the fact that we had
never held that equitable tolling applies to these
reconsideration requirements, or the elements of equitable
tolling. See 8 U.S.C. § 1229a(c)(6). An alien seeking a
removal stay based on a prediction about how we will apply
existing precedent to an unresolved issue must explain why his
prediction is more-likely-than-not correct under Nken. That
has not happened here.
Petitioner also breezed past at least five impediments to
his statutory reopening motion:
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1. We have never held that a change in law is a basis
for statutory reopening.
2. Despite this being Petitioner’s second statutory
motion to reopen, he does not address the number
bar or the fact that we have never held that equitable
tolling applies to that statutory limitation. See 8
U.S.C. § 1229a(c)(7)(A); see also Luntungan v. AG,
449 F.3d 551, 557 (3d Cir. 2006).
3. Although Petitioner’s removal order became final in
2011, he does not address the time bar. See 8 U.S.C.
§ 1229a(c)(7)(C)(i).
4. Petitioner makes no effort to defend tolling’s
diligence requirement in the context of a record that
reflects years-long gaps in his efforts to revisit the
removal order. See Mahmood v. Gonzales, 427 F.3d
248, 253 (3d Cir. 2005) (“[P]eriods of unaccounted-
for delay reveal a lack of diligence.”).
5. Because Minter is from the Second Circuit,
Petitioner in effect asks us to adopt Minter, expand
the decision to reach immigration scenarios, apply it
as an extraordinary circumstance for purposes of
equitable tolling, and rely on it to uproot a final order
of removal.
An alien cannot meet his merits burden based on a
“significantly better than negligible” showing on one of these
issues, or even several of them. Holland, 895 F.3d at 286.
Overall likelihood of success is the product of likelihood of
success on each independent issue. This is a “mathematical
truth.” Herrera-Juarez v. Blanche, 2026 WL 1147182, at *2
6
(4th Cir. 2026) (Quattlebaum, J., dissenting from grant of stay
pending appeal); see also Lopez-Sorto v. Garland, 103 F.4th
242, 254 (4th Cir. 2024); Velasquez-Samayoa v. Garland, 49
F.4th 1149, 1155 (9th Cir. 2022) (“[W]hen an applicant posits
a single theory for why he would be tortured, but the torture
will come about only if several hypothetical events all occur in
sequence, an applicant must show, at a minimum, that the
individual probability of each event occurring is greater than
50 percent.”). No calculator is necessary for this one. Even if
Petition had demonstrated a better-than-negligible chance of
success on the Minter arguments, which we will resolve later,
his failure to address the first four issues relating to statutory
reopening means he does not do enough to meet his burden on
the merits factor.
B.
Petitioner does not demonstrate a sufficient risk of
irreparable harm either. Counsel argues that “Petitioner
reasonably fears that he will [be] taken into custody and
expeditiously removed” at a scheduled meeting with DHS
relating to his supervision while on bail. ECF20 at 1.
Unsubstantiated arguments about a regularly scheduled
meeting suggest little more than a possibility of removal. A
“possibility” of irreparable harm will not cut it, and removal is
not “categorically irreparable.” Nken, 556 U.S. at 435. Thus,
Petitioner’s speculative concern about the meeting does not
merit an intrusion on the activities of the Executive Branch.
Petitioner also makes general arguments relating to
family separation and dubious claims about the government’s
ability to facilitate his return should he prevail. Talk is cheap.
Evidence persuades. Presenting arguments regarding family
circumstances in an unsworn brief, unsupported by evidence,
7
will rarely suffice to establish irreparable harm. That
proposition proved true here as we take a fresh look at the stay.
Beyond the common challenges associated with family
separation in connection with a removal, Petitioner does not
describe any problems specific to his family. The only family-
related evidence in the record now before us indicates that in
2011 Petitioner acknowledged that he had a girlfriend as well
as a wife, his wife had been convicted of fraud relating to a
government-assistance program in 2004, and she also had more
recent convictions related to their children’s truancy. In
addition to the dearth of evidence supporting Petitioner’s
arguments, this part of the record undercuts his arguments on
the irreparable-harm factor.
Finally, Petitioner’s arguments regarding Directive
11061.1,2 which sets forth DHS’s policy for facilitating the
return of certain aliens, are unavailing. “When Congress
passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, it repealed a prior statute that
prevented aliens who leave the United States from continuing
to seek review of their removal orders.” Sarkisov v. Bondi, 138
F.4th 976, 979 (6th Cir. 2025). Thus, “[a]liens who are
removed may continue to pursue their petitions for review, and
those who prevail can be afforded effective relief by facilitation
of their return, along with restoration of the immigration status
they had upon removal.” Nken, 556 U.S. at 435.
Petitioner cannot avoid that binding precedent by
relying on a 2012 letter submitted to the Supreme Court by a
Deputy Solicitor General following the decision in Nken. The
2
ICE Directive 11061.1, Facilitating the Return to the United
States of Certain Lawfully Removed Aliens (DHS 2012),
[https://perma.cc/66RH-44PU].
8
letter clarified the Executive Branch’s procedures for
facilitating an alien’s return and highlighted Directive 11061.1.
It did not somehow abrogate Nken, which courts have
continued to rely upon. See Sarkisov, 138 F.4th at 979; Sarr v.
Garland, 50 F.4th 326, 335 (2d Cir. 2022). Therefore,
counsel’s briefs lacked evidence and fell far short of
establishing irreparable harm.
C.
The merged interests of the public and the Executive
Branch do not support a stay. “There is always a public interest
in prompt execution of removal orders.” Nken, 556 U.S. at
436. There is also “a strong public interest in bringing
litigation to a close as promptly as is consistent with a fair
opportunity to present claims.” Sevoian v. Ashcroft, 290 F.3d
166, 172 (3d Cir. 2002). Petitioner has had several such
opportunities, and they were fair.
The public’s “interest in prompt removal” is also
“heightened” where, as here, an alien “has substantially
prolonged his stay by abusing the processes provided to him.”
Nken, 556 U.S. at 436. Specifically, for about a year after the
removal order, Petitioner told DHS that he would voluntarily
depart the United States. He did not. When he moved from
New York to Pennsylvania, he did not notify DHS of his
whereabouts—in apparent violation of 8 U.S.C. §§ 1305(a)
and 1306(b). He continued to pursue meritless challenges to
his removal order, which have now dragged on for more than
15 years. Removals are “necessary in order to bring to an end
an ongoing violation of United States law.” Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 491 (1999). The
public interest does not favor an alien who approaches the
removal process in this manner.
9
Especially in a case like this involving a fourth
challenge to a removal order, the Executive Branch’s
“legitimate interest in finality, which is heightened in removal
proceedings,” cannot be overlooked. Villatoro-Ochoa v.
Lynch, 844 F.3d 993, 994 (8th Cir. 2017). A stay that results in
an “inability to enforce its duly enacted plans clearly inflicts
irreparable harm” on the Executive Branch. Abbott v. Perez,
585 U.S. 579, 602 n.17 (2018); see also Maryland v. King, 567
U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers) (“Any
time a State is enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers a form of
irreparable injury.”); Kingdom v. Trump, 2026 WL 1905418, at
*2 (D.C. Cir. 2026) (“[T]he Government is irreparably harmed
by an improper intrusion by a federal court into the workings
of a coordinate branch of the Government.”).
At the fore here is the Executive Branch’s “paramount
interest in protecting” the “territorial integrity” of the United
States. United States v. Flores-Montano, 541 U.S. 149, 153
(2004). Leaving in place a removal stay that is not warranted
would give short shrift to the fact that “any policy toward
aliens” is “intricately interwoven with contemporaneous
policies in regard to the conduct of foreign relations, the war
power, and the maintenance of a republican form of
government.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-
89 (1952). These matters are so “exclusively entrusted to the
political branches of government as to be largely immune from
judicial inquiry or interference.” Id. at 589.
The Executive Branch is one of those political branches.
Article II vests the calibration of these policies in the President,
as the democratically elected leader of a Branch that operates
from the premise that “unity won out” at the Founding.
Slaughter, 2026 WL 1855612, at *5. This is where the merger
10
of the public’s interest with the government’s interest is most
apparent. An unnecessary judicial intrusion on an Executive
Branch removal decision is in some ways an affront to the
process the public uses to decide who is in charge of the
political branches. Therefore, the interests of the public and
the government favor vacatur of the stay.
* * *
Based on the current record, Petitioner does not
establish that he is entitled to a stay of removal at this juncture.
His showing is lacking with respect to each of the factors that
Nken requires us to consider. We are therefore duty bound to
vacate the stay.
II.
Days before oral argument, Petitioner filed a motion to
hold the case in abeyance pending the resolution of a new
collateral attack on his New York conviction. We denied the
motion. We now write to explain why.
Petitioner filed the collateral attack in December 2025,
long after briefing was completed here and about two weeks
after we called the case for argument. The order scheduling a
hearing on the collateral attack indicated that the District
Attorney did not oppose the requested relief as long as
Petitioner pleaded guilty to second-degree criminal facilitation,
in violation of N.Y. Penal Law § 115.05. It is hard to miss that
the prosecutor is said to be willing to accept a plea that would
be relevant to Petitioner’s argument that there is no longer a
basis for his removal. In this Court, Petitioner did nothing to
dispel the appearance that the collateral attack was coordinated
to facilitate additional delay of his removal. At argument,
11
Petitioner’s counsel distanced himself from the new collateral
attack and suggested that separate attorneys were pursuing
arguments relating to ineffective assistance of counsel. To the
extent that was true, the New York courts rejected Petitioner’s
ineffective-assistance arguments in 2014. See People v. Aristy,
979 N.Y.S.2d 634, 634 (N.Y. App. Div. 2014).
Regardless of what happened with the collateral attack,
New York “does not have the authority to make immigration-
law determinations.” Aristy-Rosa, 994 F.3d at 117. The federal
removal statute “does not bend to a state’s retroactive
expunction of a criminal record unless the nature of the
expunction calls into doubt whether the alien is indeed guilty
of criminal conduct.” Vasquez v. Garland, 80 F.4th 422, 432
(2d Cir. 2023). That is because Petitioner’s removal order is
based on him having been “convicted” of a controlled-
substance offense. 8 U.S.C. § 1227(a)(2)(B)(i). “Convicted”
is a defined term in the federal statute. Id. § 1101(48). A
former Attorney General has generously interpreted
§ 1101(48) to provide a state-court order relating to a collateral
attack with “legal effect for immigration purposes” only if the
order was “based on a procedural or substantive defect in the
underlying criminal proceeding.” Matter of Thomas &
Thompson, 27 I. & N. Dec. 674, 675 (AG 2019). According to
the Attorney General, there is no basis for avoiding
removability where the order is “based on reasons unrelated to
the merits,” such as “an interest in avoiding an immigration
consequence.” Id. We agree. Petitioner did not demonstrate
that his new collateral attack was related to the merits of his
1997 conviction.
Counsel’s efforts to delay the oral argument came very
close to crossing the line between zealous advocacy and bad-
12
faith dilatory frivolity. Consequently, we denied the abeyance
motion and moved forward with argument.
III.
For the foregoing reasons, we will vacate the stay of
removal effective immediately. This step is necessary in order
to end the unwarranted intrusion on the Executive Branch in
this case. An opinion will follow addressing Petitioner’s
challenge to the BIA’s denial of his motions for reopening and
reconsideration.
Counsel for Petitioner
David Kaplan [Argued]
Law Offices of David Kaplan
Counsel for Respondent
Craig A. Newell, Jr.
Imran R. Zaidi [Argued]
United States Department of Justice
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