General Order 6.4: Emergency Motions

a. Assignment to Judges

Upon the receipt or filing of an emergency motion, the Clerk will notify the merits panel assigned to the case, or in an unassigned case, will notify the motions attorneys. If the motion arises in a potential comeback case, the motions attorneys will contact the previous panel to inquire whether they wish to consider the motion.

In cases that are not assigned to a merits panel, either through the usual calendaring process or as a comeback, the motions attorneys will present emergency motions to the motions panel. In the event one or more judges on the motions panel is unavailable, any substitute judge(s) will be drawn by lot.

Presumptively, the current motions panel will decide all emergency motions in which a response is filed within the sitting month, unless the case has already been assigned to a previous motions panel. If the deadline for filing a response to an emergency motion falls within three business days of the end of the month, the motion will be presented to the following month’s motions panel, unless the current month’s motions panel orders otherwise.

The default deadline for filing a response to a motion is 10 days. See FRAP 27(a)(3). If a shorter or longer response time appears warranted, and the setting of a custom response time could affect which motions panel decides the motion, the motions attorney will consult the current motions panel before setting the response time. Motions to extend time to file a response are not favored and must be approved by the motions panel. (Rev. 9/25/19)

b. Action by Judges

When relief is requested within 48 hours, judges on motions duty may treat an emergency motion as requesting temporary relief until the motions panel can more fully consider the merits of the motion. A single judge may issue an order granting or denying temporary relief, if no other judge on motions duty is available and the order would not effectively dispose of the motion or the appeal. If the order would in effect decide the motion or appeal, the judge must obtain the concurrence of at least one other judge on the motions panel.

In resolving an emergency motion to grant or stay an injunction pending appeal, the motions panel may set an accelerated briefing schedule for the merits of the appeal, order the case on to the next available argument calendar per General Order 3.3(f) (Expediting Appeals), or order the case on to a specified argument calendar per General Order 3.3(g) (Urgent Cases). If an appeal arising from an application for a temporary or permanent injunction is not formally expedited or designated as urgent, it will still be given priority under Circuit Rule 34-3(c) when it is assigned to a merits panel. (Rev. 12/13/10; 9/17/14; 9/25/19)

c. Motions for Stay of Deportation or Removal in Petitions for

Review

1. Temporary Stay

Upon the filing of an initial motion or request for stay of removal or deportation, the order of removal or deportation is temporarily stayed until further order of the Court.

2. Supplemental Motion

If the initial motion for stay of removal or deportation fails to discuss the merits of the petition for review or to identify the potential hardships faced by the petitioner due to deportation or removal during the pendency of the petition, petitioner may, within 14 days from the filing of the initial motion, file a supplemental motion for stay. The Court will ordinarily not issue any orders directing or inviting the filing of a supplemental motion.

3. Response

The electronic certified administrative record shall be filed with the Court within 35 days from the filing of the petition for review. The respondent shall file its response to the motion for stay within 21 days from the due date of the administrative record. Any dispositive motions respondent seeks to file should be filed at the same time the response is due. (Revised 3/21/18; Effective 4/1/19)

4. Reply

The petitioner may file a reply to the response within 7 days from service of the response.

5. Non-Opposition

If respondent files a notice of non-opposition to the stay motion in lieu of the response provided for in subsection (3) above, the temporary stay shall continue in effect during the pendency of the petition for review or until further order of the Court. If the respondent does not file a response to the stay motion within the time limits set forth in subsection (3), the absence of a timely response will be treated as a notice of non-opposition and will be subject to the terms of this subsection. Respondent may, at any time during the pendency of the petition for review, move to lift the temporary stay. Any such motion to lift the stay, along with any response filed by petitioner within 10 days after service of the motion, will be presented to the next available motions panel for disposition.

6. Schedule for Record Preparation and Briefing

A briefing schedule will be established upon the filing of the petition for review, whether or not a motion for stay of removal is filed. (Revised 3/21/18; Effective 4/1/19; Revised 6/21/23) Note: Pursuant to this Court’s decision in DeLeon v. INS, 115 F.3d 643 (9th Cir.

1997), a final order of deportation or removal is automatically temporarily

stayed upon the filing of a motion or request for stay of deportation or

removal in a petition for review of such an order. This temporary stay is in

effect whether or not the Court issues an order confirming such stay. See id.

The Court will not ordinarily issue such an order confirming the stay,

although it may issue an order to show cause relating to jurisdictional

questions or issues pertaining to the sufficiency of the stay request and/or

the payment of fees. With regard to further briefing on the merits of the stay,

petitioner may file a supplemental motion within 14 days. See Abbassi v.

INS, 143 F.3d 513 (9th Cir. 1998).

d. Drawing a Merits Panel

When an emergency motion for stay pending appeal or other similar substantive motion is filed, the Chief Judge, or the Chief Judge’s designate, may determine that a merits panel should be immediately drawn and the pending motion be referred to it for resolution. This determination may be made because the case is one: (1) in which the motion and the merits—for the sake of consistency—should be heard by the same panel; (2) in which resolution of the motion may require precedential publication; or (3) that involves issues of exceptional importance. If such a determination is made, the Chief Judge will instruct the Clerk to either (1) draw a merits panel by lot from the list described at G.O. 3.2.h, or (2) employ the procedures set forth in G.O. 3.3.g to assign the case to a merits panel. If a judge who is drawn is unavailable to participate on the panel, or if the clerk cannot timely contact the judge, a replacement judge may be drawn by lot. (New 9/25/19; Rev. 6/25/25)