Leiva-Perez

William Alexander Leiva-Perez filed a petition for review of a decision of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal and relief under the United Nations Convention Against Torture (CAT). Along with his petition for review, Leiva-Perez filed a motion for a stay of removal. Pursuant to Ninth Circuit General Order 6.4(c)(1), Leiva-Perez’s motion caused a temporary stay to issue. See De Leon v. INS, 115 F.3d 643, 644 (9th Cir.1997). We hereby grant Leiva-Perez a stay of removal pending determination of his case on its merits and issue this opinion to clarify our standard for stays of removal in light of Nken v. Holder, — U.S. -, 129 S.Ct. 1749 , 173 L.Ed.2d 550 (2009).

I. Background

Before passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, div. C, 110 Stat. 3009 -546, aliens appealing a decision of the BIA were generally entitled to an automatic stay of their orders of removal pending judicial review. See 8 U.S.C. § 1105a(a)(3) (repealed 1996). With IIRIRA, Congress eliminated the automatic stay provision, but left intact the authority of the courts of…